Wiggill and National Disability Insurance Agency (NDIS)
[2025] ARTA 115
•21 February 2025
Wiggill and National Disability Insurance Agency (NDIS) [2025] ARTA 115 (21 February 2025)
Applicant:Elizabeth Wiggill
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/2757
Tribunal:General Member J Toohey
Place:Brisbane
Date:21 February 2025
Decision:The Tribunal sets aside the decision under review and decides that the Applicant meets the access requirements in section 21 of the National Disability Insurance Scheme Act 2013 (Cth).
.................................[SGD]...................................
General Member Justin Toohey
Catchwords
National Disability Insurance Scheme – Access – Becoming a Participant Rules – Commencement of the Administrative Review Tribunal – Getting the NDIS Back on Track – Substantially Reduced Functional Capacity – Chronic Regional Pain Syndrome – Best Practice Evidence of Disability – Assessing Activities and Tasks – Mobility – Appropriateness of Other Systems of Support
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)Cases
Arnel and National Disability Insurance Agency [2019] AATA 4778.
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Morris and National Disability Insurance Agency (NDIS) [2024] ARTA 186
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11
Nika and National Disability Insurance Agency [2021] AATA 2127
RRMR and National Disability Insurance Agency [2024] ARTA 74Secondary Materials
Operational Guideline: Applying to the NDIS, published 14 October 2024Statement of Reasons
SUMMARY
I have found that the Applicant has impairments that result in a substantially reduced functional capacity to undertake the activity of mobility for the purpose of section 24(1)(c)(iv) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). As I have also found that the Applicant meets the other requirements in sections 22, 23, and 24 of the NDIS Act, I have decided that the Applicant meets the access requirements as set out in section 21 of the NDIS Act. My reasons for reaching this decision are set out below.
BACKGROUND AND ADJOURNMENT REQUEST
The issue before the Tribunal is whether the Applicant, Ms Wiggill, meets the access criteria to be a participant of the National Disability Insurance Scheme (NDIS) in accordance with section 21 of the NDIS Act.
Ms Wiggill is a 46-year-old woman who lives with her husband and their two children. Ms Wiggill is impacted by a left foot deformity, complex regional pain syndrome (CRPS) and neuropathy. The Tribunal is reviewing a decision made by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) on 24 April 2023 which affirmed an earlier decision that the Applicant did not meet the criteria for access to the NDIS. Ms Wiggill applied for a review by the Administrative Appeals Tribunal (AAT) on 26 April 2023. This application was made under section 103 of the NDIS Act and section 25 of the AAT Act.
The Tribunal held a hearing by video on 7 and 8 November 2024. The Applicant was assisted at the hearing by her husband, Shane Harder. The Agency was represented by Counsel, Madeleine Murphy, as instructed by Maddocks Lawyers. Following the hearing, both parties were provided with the opportunity to make written submissions. Final submissions were received on 17 January 2025.
During opening submissions, the Agency requested an adjournment of the hearing to seek further evidence in respect of impairments to which a psychosocial disability may be attributable. This was in response to the Applicant saying the CRPS had both physical and psychological impacts on her. I clarified that the Applicant was not seeking access to the scheme based on a psychosocial disability. I refused the application to adjourn as:
(a)I considered that the Tribunal could proceed on the basis that CRPS caused physical, neurological and sensory impairments, including extreme pain that could result in some psychological symptoms,
(b)these were not new issues and, if the Agency wished to request an adjournment, this should have been done at a much earlier point in time,
(c)an adjournment would cause further delay in what was already a long‑running matter,
(d)the Agency’s internal review decision considered both psychosocial and physical impairments and these issues are within the scope of the Tribunal in reviewing that decision,
(e)both parties have had a reasonable opportunity to produce evidence and gather information relevant to these proceedings,
(f)in the independent functional capacity assessment report of Mr Dwyer, occupational therapist, the Agency asked Mr Dwyer to address psychosocial impairments as well as physical impairments and Mr Dwyer stated that he had relevant experience with psychosocial impairments.
ISSUE
The issue before the Tribunal is whether the Applicant meets the disability requirements under section 24 of the NDIS Act.
RECENT TRIBUNAL AND NDIS ACT AMENDMENTS
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.[1]
[1] This paragraph is approved for use in all Tribunal decisions.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (Back on Track Act) commenced on 3 October 2024 and made significant amendments to the NDIS Act. As Ms Wiggill’s request for access to the NDIS was made before 3 October 2024, section 126 of the Back on Track Act provides that the NDIS Act, Rules and Guidelines apply as they existed before the commencement of the Back on Track Act.[2]
OVERVIEW OF THE NDIS DECISION-MAKING FRAMEWORK[3]
[2] I have used a similar paragraph in other recent decisions.
[3] I have used a similar overview in other matters dealing with access to the NDIS.
Chapter 1, Part 2 of the NDIS Act sets out the NDIS Act objects and principles including, for example, that the NDIS Act is to support the independence and social and economic participation of people with disability,[4] and that decision-makers are to have regard to the need to ensure the financial sustainability of the scheme.[5] Section 21(1) of the NDIS Act sets out that a person meets the criteria to become a participant in the NDIS if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).[4] Section 3(1)(c).
[5] Section 3(3)(b).
A person meets the disability requirements in section 24(1) of the NDIS Act if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self-care;
(vi) self-management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Becoming a Participant Rules). Rule 5.8 of the Becoming a Participant Rules states:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The Federal Court in Mulligan held that it is sufficient for a person to have substantially reduced functional capacity in relation to one activity.[6] The Full Court in Foster found that it is not sufficient for a person to have substantially reduced functional capacity to undertake a single task within the bundle of tasks and actions that form part of an activity.[7]
[6] Mulligan v National Disability Insurance Agency [2015] FCA 44, [56].
[7] National Disability Insurance Agency v Foster [2023] FCAFC 11, [65].
A person may become a participant by meeting the early intervention requirements in section 25 of the NDIS Act. The NDIS Operational Guidelines also assist in making decisions in accordance with the NDIS Act. Operational guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[8] The relevant operational guideline is Applying to the NDIS.[9]
[8] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[9] Pre-legislation version accessed at While the date on this guideline is 14 October 2024, which is after the Back on Track Amendments, the post-amendment update is only to the name of ART. This was advised by Counsel for the Agency in another matter.
SUMMARY OF EVIDENCE
The Tribunal was provided with a joint hearing bundle by the parties, and this was accepted into evidence at the hearing.[10] This bundle of documents included:
(g)The ‘T-documents’,[11]
(h)Letters from Dr Dowling, the Applicant’s general practitioner,
(i)Statements of lived experience from the Applicant, in diary format and as a response to questions,
(j)An NDIS carer’s statement from the Applicant’s husband, part week in diary format and as a statement,
(k)A independent functional capacity assessment report from Glen Dwyer, occupational therapist.
[10] The page numbering in the joint hearing bundle is adopted throughout these reasons.
[11] Which are all the records that the Agency considered when making the decision under review as required by section 37 of the AAT Act.
The Tribunal also had the benefit of written submissions from the parties and oral evidence from the Applicant, her husband, and Mr Dwyer.
CONSIDERATION
Age and residence requirements[12]
[12] Sections 22 and 23 of the NDIS Act.
There is no dispute the Applicant satisfies the age and residence requirements. I am satisfied that these requirements are met.
Disability requirements
I must consider whether the Applicant meets the disability requirements in section 24 of the NDIS Act.
Impairments, likely to be permanent, affecting social and economic participation
There is no dispute that Ms Wiggill has a disability attributable to impairments,[13] which are permanent,[14] and which affect her capacity for social and economic participation.[15]
[13] NDIS Act, section 24(1)(a). See the Agency’s Statement of Facts, Issues and Contentions, at paragraph 22.
[14] NDIS Act, section 24(1)(b). See the Agency’s Statement of Facts, Issues and Contentions, at paragraph 23.
[15] NDIS Act, section 24(1)(d). See the Agency’s Statement of Facts, Issues and Contentions, at paragraph 29.
As indicated above, the Agency requested an adjournment to seek further information with regards to impairments to which a psychosocial disability might be attributable. The Agency accepted that the Applicant has a disability that is attributable to physical impairments being pain, fatigue and mobility limitations, arising from her CRPS. The Agency did not accept that the Applicant had one or more impairments to which a psychosocial disability is attributable. The Applicant does not seek access to the scheme based on a psychosocial disability. As will be seen below, I have not needed to determine whether the psychological effects of Ms Wiggill’s pain are to be considered as symptoms of her physical, neurological and sensory impairments or need to be separately considered as part of an assessment of the extent to which they contribute to a psychosocial disability.
Based on the reports before me, I am satisfied that the Applicant has a disability attributable to physical, neurological and sensory impairments from her left foot deformity, CRPS and neuropathy, that these impairments are permanent, and that they affect the Applicant’s capacity for social and economic participation.
Substantially reduced functional capacity in one of more activities
Whether Ms Wiggill’s impairments result in substantially reduced functional capacity in respect one of the activities listed in section 24(1)(c) was the core focus of the party’s submissions to the Tribunal.
Mobility
The Applying to the NDIS Guideline describes mobility as:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
The Applicant submits that she does have a substantially reduced functional capacity with mobility. In particular, the Applicant says that she is only able to walk 50–100 metres on a good day, and that this means she is restricted from taking part in most activities, such as shopping, or taking her children to swimming lessons.[16] The Applicant also emphasised that she cannot go upstairs in her house, which is where her children reside.
[16] Applicant’s submissions in reply, page 26 of the Joint Hearing Bundle.
The Applicant’s CRPS in her foot and the impact on her ability to walk is significant. It is important to appreciate the secondary impacts of the CRPS on others aspects of the Applicant’s functioning. The Applicant’s physiotherapist, Dale McCall, says that:
Liz's left foot disablement means that Liz has a profoundly altered gait pattern. Liz has developed a walking pattern where her left knee is forced to hyperextend, causing an externally rotated foot and subsequent over pronation. This has, over time caused spinal pain (lumbar, thoracic, cervical), shoulder pain and left-sided sciatica (neuropathic leg pain). Liz is severely limited with her active left foot/ankle range of motion (dorsiflexion and plantar flexion) which affects walking tolerance, stair climbing, running (unable) and jumping (unable). Due to pain induced limited weightbearing Liz has now developed osteopenia (reduced bone density within her left foot).[17]
[17] Report of Mr McCall, physiotherapist, undated, T1L, page 96 of the Joint Hearing Bundle.
Mr McCall also reported that the Applicant is unable to:
·Walk more than 50–100 metres,
·Run, jump, squat, or stand on her toes,
·Sit for more than 20 minutes or stand for more than 15–20 minutes,
·Walk up stairs safely, up and down hills, or on uneven surfaces,
·Reach above shoulder height,
·Sleep more than 4 hours,
·Fasten laces or buckles,
·Clean, shop, or lift anything heavier than a handbag.
Mr McCall also said that the Applicant had difficulty with bending, gardening, and putting on pants. On her worst days, Mr McCall said that Ms Wiggill cannot drive, or follow a recipe, and struggles to get in and out of a chair.[18]
[18] Pages 96 to 98 of the Joint Hearing Bundle.
The Applicant’s GP, Dr Dowling, says that:
Elizabeth lives with the following impairments (but not limited to):
Swelling, skin discolouration, Dystonia, Stiffness, loss of fine motor control, Cognitive Executive Dysfunction, Gastroparesis related to Vagus nerve issues - feeling nauseated for long periods of time before sneezing, changes to the skin, hair and nails on the affected limb the affected limb is warmer or colder than the unaffected limb, the affected limb is sweatier or drier than the unaffected limb.
Extreme sensitivity - cannot touch affected area, put shoes on, have clothes or sheets touch affected areas
Extreme unrelenting pain which affects mood, socialization and cognitive ability
Sleep difficulties, memory issues, Anxiety/Panic Attacks, Migraines and weight gain.[19]
[19] Dr Dowling’s response to request for further information dated 29 August 2023, A1, page 238 of the Joint Hearing Bundle.
The Applicant also relies on the report of Ms Moucheron, occupational therapist. Applying the World Health Organisation Disability Assessment Schedule 2.0 (WHODAS 2.0), Ms Moucheron said the Applicant’s score of 85% in the domain ‘getting around’ represented a severe to extreme level of difficulty.[20]
[20] Functional Capacity Assessment Report of Ms Moucheron, dated 20 September 2022, T1C, page 63 of the Joint Hearing Bundle.
On the Modified Barthel Assessment, Ms Moucheron said that Ms Wiggill:
·Struggles with sit to stand transfers,
·Is mobile for short distances without aid but is unable to walk around the shops or walk the dogs, and
·Has great difficulty with mobilising up and down stairs.
The Modified Barthel Assessment also assessed other activities. Overall, Ms Moucheron said this assessment indicated a slight dependence on others in being able to live at home independently.[21] With reference to Lawton’s Instrumental Activities of Daily Activity (IADL), Ms Moucheron said that Ms Wiggill was unable to:
·Walk long distances required to complete shopping,
·Stand for more than 20 minutes,
·Complete heavy housekeeping tasks such as mopping, vacuuming, making beds, or hang out laundry.[22]
[21] Pages 67 and 68 of the Joint Hearing Bundle.
[22] Pages 66 and 67 of the Joint Hearing Bundle.
On the Adaptive Behaviour Assessment (Self-Report) (ABS-III) assessment, Ms Moucheron said that the Applicant’s score of 45 on the ‘community use’ domain was ‘extremely low’ and that she was unable to access the community independently.[23] Ms Moucheron recommended support workers for community access and domestic chores, as well as art classes and an assessment for home automation.[24]
[23] Pages 65 and 66 of the Joint Hearing Bundle.
[24] Page 70 of the Joint Hearing Bundle.
The Applicant also relies on her and her husband’s lived experience. In the week described in the diary format of the Applicant’s statement of lived experience, Ms Wiggill says that she was not able to attend a ‘monster truck’ show which was a birthday present for her youngest child.[25] She was able to watch her eldest play rugby. Ms Wiggill did not otherwise access the community in this week. In response to questions, the Applicant also stated that, other than medical appointments, she only left the house to go to the chemist every few weeks and, rarely, to pick up her children from school.[26]
[25] Page 256 of the Joint Hearing Bundle.
[26] Page 258 of the Joint Hearing Bundle.
The Agency relies of the independent functional capacity assessment conducted by Glen Dwyer. Mr Dwyer assessed Ms Wiggill as being independent or using a modified technique with all mobility activities. In conclusion he says that:
Through ongoing use of pacing mobility activities and the intermittent use of her existing mobility aids as needed, Ms Wiggill does not presently have any additional requirements for assistance in the domain of mobility.[27]
[27] Pages 284 and 285 of the Joint Hearing Bundle.
The Applicant raised many concerns with Mr Dwyer’s report including his estimates of distances walked and time taken between tasks. These concerns were raised with Mr Dwyer during the hearing. I found Mr Dwyer’s explanation of his methodology and the thoroughness of his record-keeping persuasive, including being able to refer to timestamped photographs to confirm the duration between photos. Mr Dwyer did acknowledge that the distances in his report were estimates.
The Applicant was also concerned that Mr Dwyer did not properly account for her fluctuating capacity. In his report, Mr Dwyer said that:
Ms Wiggill reported fluctuations in the severity of her symptoms. She described a “regular day” as consistent with her presentation at the time of this assessment … However, up to four days per week she may experience “bad days”, and on these days she typically only manages basic personal care and does not leave the home.[28]
[28] Page 248 of the Joint Hearing Bundle.
The Applicant says that five out of seven days are bad days and that she told Mr Dwyer that the assessment day was a ‘relatively good day’. The Applicant also says that on ‘bad days’ she cannot walk 50–100 metres and can only shuffle from a bench to a table, for example.[29]
[29] Applicant’s Submission in Reply, page 27 of the Joint Hearing Bundle.
I note that the Agency submitted that the Applicant ‘characterises the day of the assessment with Mr Dwyer as a bad day, being the same as 5 out of 7 days’. This is not consistent with either Mr Dwyer’s report or the Applicant’s evidence. I do not accept this submission.
I accept the Applicant’s concerns regarding Mr Dwyer’s assessment of fluctuation. In my view, Mr Dwyer has relied more on his direct observation during the assessment than on the written material, including the reports of Ms Moucheron, Mr McCall and Dr Dowling which he had access to. In his oral evidence, in response to a question about why he did not conduct similar assessment questionnaires as Ms Moucheron, Mr Dwyer said:
I am commissioned to do a functional assessment. So I am actually seeing a person's actual capacity, is the way I go about these assessments. Not a theoretical capacity, not a capacity based on what number gets produced out of 100 or what percentage …
I see my role … is to cut through some of the medical jargon and the theoretical capacity and see myself genuinely as someone who needs to go into a house, see as much activity as possible and gather as much information as possible and be able to walk out of there and know what can Elizabeth do and what can she not do.
In my view, this does indicate that Mr Dwyer gave greater weight to his observations on the day of the assessment as compared with the other background material provided. Regarding fluctuation, I note that Dr Dowling said:
Elizabeth does not have a normal functional capacity and requires assistance from those around her on a daily basis. Elizabeth’s functional capacity worsens with the introduction of physical, mental and emotional stress. …
A “good” day for Elizabeth is not the same a good day for you and I. A good day may entail making a meal and being able to out a load of washing on (with the usual assistance form husband or children). A bad day means Elizabeth only being able to function enough to bathe and dress.[30]
[30] Page 252 of the Joint Hearing Bundle.
I consider this is largely consistent with the oral evidence of the Applicant in which she said she did not really have ‘good days’ and that all days were ‘pretty terrible’. I accept Ms Wiggill and her husband’s evidence that five of seven days are ‘bad days’. This is not contradicted by other evidence. I also note that Mr Dwyer did anticipate that on ‘bad days’ the Applicant’s tolerance for walking would be much less than observed during his assessment.[31]
[31] Page 297 of the Joint Hearing Bundle.
Ms Moucheron, Dr Dowling and Mr McCall were not made available to provide oral evidence. For this reason, I consider that their reports should be given slightly less weight. In closing submissions, the Agency also said that Ms Moucheron’s evidence should be given less weight as: it was conducted in 2022; there are internal inconsistencies in the report; the assessments are based on self-reporting; and Ms Moucheron is not a psychologist.
I have considered these points. I note that Mr Dwyer’s assessment was conducted in 2023 and is also now somewhat dated. I agree that some of the assessments in Ms Moucheron’s report are based on self-reporting, but I accept that these assessments are standardised tools and a valid means for occupational therapists to consider various aspects of a person’s capacity. The NDIA website includes guidance about treating health professionals who can provide best practice evidence of disability. Occupational therapists and the WHODAS 2.0 questionnaire are specifically referred to as appropriate health professionals and best practice evidence on this page.[32] I consider that an occupational therapist can comment on psychosocial functional capacity without being a psychologist. I agree there appear to be some inconsistencies in Ms Moucheron’s report, but I see these as being a product of the range of assessments conducted which then inform Ms Moucheron’s overall observations.
[32] >
I also consider that Mr Dwyer’s emphasis on the activities undertaken by the Applicant during his assessment does not properly account for the fluctuation in Ms Wiggill’s impairments. In this regard, while I do give Mr Dwyer’s report weight, his overall conclusions in relation to functional capacity need to be approached with some caution. When I consider all of the reports, together with the Applicant and her husband’s lived experience, I accept that the Applicant’s mobility is significantly impacted by her impairments on most days.
Substantially reduced functional capacity
While I accept that the Applicant’s mobility is impacted on most days, I still need to consider whether these impairments meet the statutory threshold of being a substantially reduced functional capacity. I have emphasised the word substantially here. As the Full Court of the Federal Court explained in Foster, the NDIS was only intended to cover a subset of persons with a disability, being a much smaller group of people with significant care and support needs.[33] As mentioned above, the Full Court in Foster also found that it is not sufficient for a person to have a substantially reduced functional capacity to undertake a single task within the bundle of tasks and actions that form part of an activity. It is the activity as a whole in which the Applicant must have a substantially reduced functional capacity.[34]
[33] National Disability Insurance Agency v Foster [2023] FCAFC 11, discussing the context of the NDIS being in response to a Productivity Commission report, at paragraph 47.
[34] National Disability Insurance Agency v Foster [2023] FCAFC 11, [65].
Walking is one of the tasks that make up the activity of mobility. The Agency relies on the Tribunal decision in Madelaine for the proposition that:
… there was no particular distance specified in the Guideline as defining a substantially reduced functional capacity in mobility, but it ‘seems reasonable to suggest that a person who can travel 50m by herself has the capacity to do the things referred to in the Guideline’.
As I have said in other matters, I consider that the conclusions in Madelaine on mobility need to be read in the context of differences in the wording of the guideline at that time.[35] The Agency acknowledges that the guidelines considered by the Tribunal in Madelaine are different to those currently in force. However, the Agency also submitted that:
[the guidelines] do not form the only basis for that decision. Further, as the Court has repeatedly observed, the Guidelines do not supersede the Tribunal’s task of undertaking a wholistic assessment of the applicant by reference to the relevant legislative provisions. It is not suggested that the Tribunal in Madelaine did anything other than apply the relevant legislative provisions.[36]
[35] See Morris at [30] or RRMR and National Disability Insurance Agency [2024] ARTA 74, at [60].
[36] Agency’s Written Submissions, 22 November 2024.
It remains my view that the conclusion reached by the Tribunal in Madelaine applied the wording in the prior guideline which said that ‘undertaking a task more slowly or differently to others does not mean a person cannot participate effectively in an activity’. I am not suggesting that the Tribunal was in any way in error when applying the guidelines in force at the time. I am however not persuaded that Madelaine remains an authority that I should apply to conclude that a person being able to walk 50 metres does not amount to a substantially reduced functional capacity.
I also note that the wording in relation to fluctuation has changed in the guidelines. The current guideline says ‘We consider your ability over time, taking into account your ups and downs’. Earlier versions said ‘the NDIA will consider the impact on the person’s ability to function in the periods between acute episodes’. I agree with the Applicant that the facts in Madelaine with regards to frequency of symptoms are considerably different from those of Ms Wiggill. In Madelaine, the applicant experienced ‘bad days’ once or twice a month for two to three days in a row.[37]
[37] Applicant’s Written Submission in Reply, 6 December 2024.
In her oral evidence, the Applicant said that prior to her disability she was very physically active and was able to run 10 kilometres. While I have no doubt that Ms Wiggill’s physical capacity is far below her previous capabilities, the test of ‘substantially reduced’ is not measured against the Applicant’s pre-disability functioning.[38] I agree with the reasoning in paragraph 109 of Madelaine that a comparison between what a person could do before the onset of their disability and their current functioning is ‘not the appropriate yardstick’.
[38] See Madelaine at [109] and my further discussion of these issues in Morris and National Disability Insurance Agency (NDIS) [2024] ARTA 186 at [27] to [30].
The Applicant also raised the Tribunal’s decision in Arnel[39] which dealt with an applicant with CRPS. This was a helpful decision to consider, with a number of parallels to Ms Wiggill’s circumstances. I am not sure the same conclusion would be reached following the guidance from the Court in Foster. I say this because the Tribunal in Arnel, at paragraph 67, considered the task of walking as being critical to the activity of mobility. I am not sure the Tribunal would have approached this issue in the same way when applying the distinction between tasks and activities as set out in Foster. Walking is a task within the activity of mobility. It may be a significant part of the activity, but there are other tasks that need to be considered. I also accept that, while there are similarities in the facts, there are also distinctions, as the Agency submits, including with regard to the applicant in Arnel’s risk of falls.[40]
[39] Arnel and National Disability Insurance Agency [2019] AATA 4778.
[40] Agency’s Final Submissions, dated 17 January 2025.
Adopting the categories in Mr Dwyer’s report, I consider that the activity of mobility includes tasks such as:
(a)moving around the home: accessing main entrances, rooms/areas, cupboards, storage and shelving,
(b)transfers: between bed, chair, floor, toilet, shower and car, and
(c)moving outside the home: driving, public transport, accessing the community and essential services.
I would also note that the activity categories in section 24(1)(c) can have some overlapping aspect. For example, in relation to Ms Wiggill, I consider that her mobility impacts on her capacity to undertake some heavier household chores. In this way, it is not entirely clear whether the tasks are to be considered in the self-care or mobility activity, or possibly both. I consider that they do fit within the guideline definition of mobility which includes ‘how you … use your arms and legs’. It might also be that a person’s impaired mobility means that they have reduced functional capacity with self-care activities.
In considering the evidence before me in respect of Ms Wiggill, I find that:
(a)Her symptoms are worse on approximately five out of seven days, which are described as ‘bad days’.
(b)On these bad days the Applicant:
(i)is not able to drive, walk 50 metres, leave her house independently, or complete sit to stand transfers without assistance,
(ii)can move around the lower floor of her house by bracing on furniture, using crutches or a walking frame,
(iii)is only able to attend to basic personal care such as showering and dressing,
(iv)is unable to complete other tasks requiring mobility, such as cooking, cleaning or laundry.
(c)On her better days the Applicant:
(i)can drive short distances, walk 50–100 metres on an even surface, and sit or stand for around 20 minutes,
(ii)is unable to hang out washing, reach above shoulder height, or complete heavier household chores that require greater mobility such as vacuuming or mopping,
(iii)is unable to use public transport,
(iv)is unable to walk up stairs, up or down hills, or over uneven terrain.
Taken together, I find that the Applicant usually requires assistance from other people to perform tasks or actions required to undertake the activity of mobility. The Applicant is therefore deemed to have a substantially reduced functional capacity by Rule 5.8(b) of the Becoming a Participant Rules. Section 24(1)(c)(iv) of the NDIS Act is therefore met. As I found that the Applicant has a substantially reduced functional capacity to undertake the activity of mobility, it is not necessary to consider the other activities in section 24(1)(c) further.
Likely to require lifetime support of the NDIS
Section 24(1)(e) of the NDIS Act also requires that a person is likely to require support under the scheme for the person’s lifetime. At paragraph 93 of Foster, the Court clarified that:
The focus of s 24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems.
The Agency submits that a person will only be likely to require support under the NDIS for their lifetime if their impairments substantially reduce their functional capacity. As I found that the Applicant has a substantially reduced functional capacity to undertake the activity of mobility, it is likely that the Applicant will require lifetime support of the NDIS.
However, I have also considered the other services identified in Mr Dwyer’s report that may be able to provide support to the Applicant. These include the:
·Queensland Community Support Scheme (QCSS),
·Queensland Community Transport Program (QCTP),
·Taxi Subsidy Scheme and Lift payment (TSS), and
·Crisis Assessment and Treatment Team (CAAT).[41]
[41] Pages 292 to 295 of the Joint Hearing Bundle.
As noted in Mr Dwyer’s report, the QCSS and QCTP are not available to those who are eligible for the NDIS (or receiving transport services under the NDIS). Therefore, Ms Wiggill will not be able to access these schemes when she becomes an NDIS participant. I note that the TSS is available to NDIS participants ‘until appropriate transport support arrangements are in place, up to 31 October 2025’.[42] I would not consider that the availability of TSS would mean that Ms Wiggill’s support needs are most appropriately met by other systems. Her support needs go beyond transport services. Similarly, while the CAAT will continue to be available to Ms Wiggill if she is experiencing a mental health crisis, I do not consider that the availability of this service means that her support needs are most appropriately met by other systems.
[42] >
I am satisfied that the Applicant meets the disability requirements as set out in section 24 of the NDIS Act. The Applicant is eligible to become a participant of the NDIS. The decision of the Agency under review is set aside and substituted with a decision that the Applicant meets the access criteria in section 21 of the NDIS Act.
Dates of hearing: 7 and 8 November 2024 Date final submissions received: 17 January 2025 Representative for the Applicant: Self-represented with her husband Shane Harder Solicitors for the Respondent:
Counsel for the Respondent:
Amanda Whitely, Maddocks Lawyers
Madeleine Murphy, 19 Inns Chambers
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