Willcocks and Chief Executive Officer, National Disability Insurance Agency

[2024] AATA 2722

Willcocks and Chief Executive Officer, National Disability Insurance Agency [2024] AATA 2722 (5 August 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/10283

Re:Raymond Willcocks  

APPLICANT

AndChief Executive Officer, National Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member P French

Date:5 August 2024

Place:Sydney

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth):

(a)the decision under review is set aside; and

(b)in substitution for that decision it is determined that the Applicant meets the requirements for access to the National Disability Insurance Scheme specified in s 21(1) of the National Disability Insurance Scheme Act 2013 (Cth) on the basis that

i.he meets the age requirements specified in s 22 of that Act,

ii.he meets the residence requirements specified in s 23 of that Act, and

iii.he meets the disability requirements specified in s 24 of that Act.

.............................[sgd]...........................................

Member P French

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Agency – reviewable decision of Chief Executive Officer – becoming a participant – access request – whether applicant meets the access criteria – whether applicant meets the disability requirement – whether applicant has a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or has one or more impairments to which a psychosocial disability is attributable – whether impairments are, or are likely to be, permanent – whether impairment or impairments result in substantially reduced functional capacity – whether impairments affect capacity for social and economic participation – whether likely to require support under the NDIS for the person’s lifetime – disability requirements met – reviewable decision set aside.

LEGISLATION

Acts Interpretation Act 1901 (Cth) s 15AB

Administrative Appeals Tribunal Act 1975 (Cth) ss 19A, 25, 37, 38AA, 43
National Disability Insurance Scheme Act 2013 (Cth) ss 18, 20, 21, 22, 23, 24, 25, 99, 103, 209

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) Pts 2, 5, 6

CASES

DKQZ and National Disability Insurance Agency [2024] AATA 2276

FBJV and National Disability Insurance Agency [2021] AATA 913
Holmes and National Disability Insurance Agency [2017] AATA 2790
James and National Disability Insurance Agency [2019] AATA 4248
Kilgallin and National Disability Insurance Agency [2017] AATA 186
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster (2023) FCAFC 11
Newell and National Disability Insurance Agency [2023] AATA 4140
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) [1979] 24 ALR 577
Rooney and National Disability Insurance Agency [2021] AATA 3523
Shelton and National Disability Insurance Agency [2018] AATA 2560
Shi v Migration Agents Regulation Authority (2008) 248 ALR 390
Smith and National Disability Insurance Agency [2024] AATA 265

Timofticiuc and National Disability Insurance Agency (2021) AATA 3015

SECONDARY MATERIALS

National Disability Insurance Scheme, operational guideline, Applying to the NDIS

World Health Organisation, 2001, International Classification of Functioning, Disability and Health, Geneva
World Health Organisation, 2013, How to use the ICF: A practical manual for using the International Classification of Functioning, Disability and Health (ICF), Exposure Draft for Public Comment, Geneva
TB Ustum, N Kostanjsek, S Chatterji, and J Rehm, Measuring Health and Disability: Manual for WHO Disability Assessment Schele, WHODAS 2.0, World Health Organisation (2010)

World Health Organisation, 2002, Towards a Common Language for Disability Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3

REASONS FOR DECISION

Member P French

5 August 2024

Introduction

1. This is an application by Raymond Willcocks (the Applicant) under s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act, the Act) for administrative review of an internal review decision made under s 100(6) of that Act by the delegate of the Chief Executive Officer of the National Disability Insurance Agency (the delegate, the CEO, the Agency, the reviewable decision) on 16 September 2021. By that decision, the delegate confirmed the CEO’s original decision under s 20(1)(a) of the Act made on 8 June 2021 which was to the effect that the Applicant did not meet either the disability requirements specified in s 24 or the early intervention requirements specified in s 25, and that, accordingly, he did not meet the criteria for access to the NDIS specified in s 21(1)(c) of the Act. This Tribunal has jurisdiction under s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to review this decision because it is designated a reviewable decision by s 99(1) (Item 1) of the NDIS Act. This application was made to the Tribunal on 16 December 2022 (the proceeding).

2. Having considered all the evidence before me at the date of the hearing, and for the reasons explained following, pursuant to s 43(1)(c) of the AAT Act, I have decided that the decision under review is not correct. I am satisfied that the Applicant meets the disability requirements for access to the NDIS because he has substantially reduced functional capacity for self-care that results from permanent impairments of body structure and function derivative of his spine, hip, shoulder, elbow, ankle/foot and wrist conditions and permanent impairment of specific mental functions that are attributable to his psychosocial disability. These impairments have a seriously adverse impact on the Applicant’s social and economic participation in the self-care life activity area. Most significantly, he is unable to clean and maintain his home and yard and, because of this, is at risk of being evicted from his social housing, which is likely to have further adverse consequential impacts in terms of his health, safety and wellbeing due to housing instability or homelessness. The Applicant is likely to require support under the NDIS in relation to significant aspects of his life-care for the rest of his life.

   Procedural history

3. Following the filing of the application, the proceeding was referred for alternative dispute resolution in accordance with Division 3 of Part IV of the AAT Act. Alternative dispute resolution did not lead to a resolution of the dispute.

4. Consequently, on 25 March 2024, the Deputy President responsible for the AAT’s NDIS Division constituted the proceeding to me for hearing in accordance with the President’s Directions made under s 19A of the AAT Act (the constitution).

5. Prior to the constitution, on 8 February 2024, a Tribunal, differently constituted, made directions for the parties to file and exchange Hearing Certificates and the evidence and submissions that they intended to rely on at the final review hearing. After constitution, on 26 March 2024, I fixed the review hearing for 3 and 7 June 2024 in accordance with the availability of the parties and their witnesses as this was set out in their Hearing Certificates.

   Evidence and hearing

6. I have considered the following material in reaching my decision:

   (i)Agency’s Statement of Facts, Issues and Contentions, undated, filed on 10 May 2024;

   (ii)Joint Tender Bundle filed 14 March 2024 (Exhibit 2);

   (iii)Medical Certificate and CT scan dated 31 May 2024 (Exhibit 1).

7. The hearing was conducted by MS Teams (Video) on 3 and 7 June 2024. 

8. The Applicant was self-represented. He gave oral evidence in his own cause under oath.

9. The Agency was represented at the hearing by Mr D Lipari of counsel, instructed by Maddocks Lawyers. The Agency called as a witnesses Ms B Dwyer, Occupational Therapist, who gave evidence under oath on 3 June 2024, and Dr J Tomlinson, Consultant Orthopaedic Surgeon, who gave evidence under affirmation on 7 June 2024.

10. The parties had the opportunity to make opening statements, present their evidence, ask the witnesses questions, and make final submissions to the Tribunal.

    Background facts

11. The Applicant is a single man, 64 years of age as at the date of the hearing. On the date his NDIS Access Request was made (20 May 2021) he was 61 years and 4 months old.[1]  He is an Australian Resident holding a permanent visa and was so on the date his NDIS Access Request was made.[2]

    [1] Joint Tender Bundle, Tab T3: In his Access Request, the Applicant provided consent to the Agency to verify his birthdate with Centrelink, page 30.

    [2] Joint Tender Bundle, Tab T3: In his Access Request, the Applicant provided consent to the Agency to verify his residency status with Centrelink, page 30.

12. The Applicant completed Year 12. He later attended university and obtained a Bachelor of Arts, majoring in Geography, and a Graduate Diploma of Town Planning. Later, he enrolled in, but did not complete, a master’s degree in commerce. He worked for a time as a planning officer for two local government authorities. At various times he also worked as a barman, cellar hand, waiter, and bottle shop manager. In April 2000, the Applicant sustained an injury at work. After a period of leave, he returned to work in accordance with a rehabilitation program. However, his return to work was unsuccessful for several reasons. He has not worked in paid employment since late 2000. He has been in receipt of a Disability Support Pension since September 2003. He received a worker’s compensation lump sum payment in respect of non-economic loss in June 2002, and a Total Disablement Benefit in July 2016.

13. Since July 2023 the Applicant has been a regular volunteer with a non-government organisation engaged in telephone counselling work (3 days a week, 3 hours per day).[3]

    [3] Transcript of Proceeding, Day 1, 3 June 2024 (Transcript Day 1), page 11, lines 14 – 39.

14. The Applicant lives in social housing in a rural town in South Australia. His home is a single storey dwelling with two bedrooms, a living room, kitchen, bathroom, lock-up garage, and front and rear yards. The bathroom has a standard toilet and an open shower with handheld shower head but does not have grab rails. There is also a front-loading washing machine in the bathroom. Front access to the home is via a steep concrete driveway.

15. The Applicant has a driver’s license and owns a car. He has four pet dogs. He has relatives in South Australia and a brother in Sydney with whom he does not have contact. He does not have any informal supports, and apart from social housing, has no formal supports.

16. A primary motivating factor for the NDIS Access Request is the Applicant’s desire to obtain assistance with house cleaning and yard maintenance. He has received repeated warnings from his social housing provider about cleaning and property care and is concerned that this will lead to the termination of his tenancy agreement. However, as at the date of the hearing no termination action has been taken,[4]

    [4] Joint Tender Bundle, Tab T3, page 34; Transcript Day 1, page 31–3.

    The Access Request

17. By an Access Request Form submitted to the Agency on 20 May 2021 the Applicant sought access to the NDIS. In Section 1, Part E, of the Form the Applicant reported ‘lower back bulged disk L4, L5’ as his main disability. He also reported nine additional disabilities as substantially affecting his everyday life, being: ‘bursa right hip’, ‘left ankle and leg broken twice – twisted ankle badly about 30 times after initial twist’, ‘left knee – fell on 2 times at work – 2 arthroscopies and needing a 3^rd’, ‘left wrists – serious hyperflexion at work – un-operable’, ‘arthritis in lower back, left ankle, left knee’, ‘major depression’, ‘left ventricular hypertrophy’.[5] In Section 2, Part B, of the Form, the Applicant’s General Practitioner, Dr B Ojobor records the Applicant’s main disability as ‘lumbar spine spondylosis, disc prolapse L4, L5, with congenital L5 pina bifida occulta’. No other disability is recorded in this section of the Access Request.

    [5] Joint Tender Bundle, Tab T3, page 34.

18. By letter dated 8 June 2021, the delegate of the CEO notified the Applicant of her decision in relation to the Access Request which was, in short summary, that the Applicant did not meet the disability and early intervention requirements for access to the NDIS. With respect to the disability requirement, the delegate was not satisfied that the Applicant met the permanency requirement contained in s 24(1)(b) because she was not satisfied, on the evidence before her, that all available and appropriate treatment options that were likely to relieve or cure the Applicant’s impairments had been explored. She determined that the Applicant did not meet the early intervention requirement of s 25(1) on the same basis (the original decision).[6]

    [6] Joint Tender Bundle, Tab T4, pages 53–7.

19. On 1 July 2021 the Applicant applied to the Agency for an internal review of the original decision.

20. By letter dated 16 September 2021, the delegate of the CEO notified the Applicant of her internal review decision, which was to affirm the original decision.[7] In short summary, the delegate was not satisfied that the Applicant’s impairments satisfied the permanency requirement, that they resulted in substantially reduced functional capacity in the prescribed life activity areas, or that the NDIS was the most appropriate system to provide the Applicant with support. In this respect the delegate reasoned (with respect to both the disability and early intervention requirements):

    …

    Criteria (a) on impairments

    I am satisfied that you have a disability attributable to a physical impairment as a result of the conditions of lumbar spine spondylosis, disc prolapse L4 and L5 with congenital L5 spina bifida occulta.

    Criteria (b) on permanence …

    I am not satisfied that this criteria has been met with regard to your physical impairments.  I understand that you live with impairments that affect your capacity to undertake a number of daily tasks.  However, for the purposes of the NDIS, an impairment cannot be considered permanent until all recommended treatment options have been completed and evidence must demonstrate full engagement with all recommended treatments, treatment outcomes and specialist opinion regarding future prognosis after treatment completion. Whilst the evidence indicates you have received some treatments, there is insufficient information relating to frequency, duration, participant engagement, outcomes or specialist prognosis regarding each treatment undertaken to confirm your impairment meets this criterion.

    Without specialist confirmation, the evidence does not conclude that all recommended treatment options have been explored and completed.  Therefore, based on the provided evidence, it has been considered the permanency of your impairments cannot be determined at this time.[8]

    [7] Joint Tender Bundle, Tab T1A, pages 8–15.

    [8] Joint Tender Bundle, Tab T2, page 20.

    The evidence

21. In this section I provide an overview of the evidence that is before me, without setting out the details of that evidence. Where relevant, the details of this evidence will be referred to later in these reasons.

22. As noted above, the Applicant gave oral evidence under oath and was questioned by counsel for the Agency.

23. The Applicant relies upon documentary evidence of his General Practitioner Dr Ben Ojober, Kincraig Medical Clinic, who had treated the Applicant for a period of four years when he submitted his NDIS Access request in May 2021.[9] Dr Ojober completed the ‘Treating Professional’ section of the NDIS Access Request. There is also in evidence a summary medical history for the Applicant which details the conditions and treatment in relation to which he had consulted Dr Ojober up to 4 August 2021 (being the date of the summary),[10] and other miscellaneous documents obtained from Dr Ojober’s practice, including a medical certificate related to a lower back strain dated 1 January 2020,[11] the results of a CT Lumbar Spine X-ray conducted by a radiologist on 25 October 2021,[12] and a medical report which outlines the Applicant’s medical history dated 8 November 2021.[13] Additionally, the Agency obtained various documents from the Kincraig Medical Practice under summons, which also include several CT scans, X-rays and ultrasounds of the Applicant’s spine, hip, pelvis, abdomen and chest conducted by radiologists on various dates between 17 November 2014 and 25 October 2021.[14]

    [9] Joint Tender Bundle, Tab T3, page 37–49.

    [10] Joint Tender Bundle, Tab T6, pages 59–60.

    [11] Joint Tender Bundle, Tab B1, page 64.

    [12] Joint Tender Bundle, Tab B5, page 69.

    [13] Joint Tender Bundle, Tab B6, page 70-1.

    [14] Joint Tender Bundle, Tab D2, pages 209 –37.

24. The Applicant also relies upon documentary materials produced by a Consultant Psychiatrist, Dr R P Nagesh, who treated the Applicant between approximately 1994 and 2011.[15] This includes a clinical report dated 26 June 2009 which was apparently written in support of his application for social housing at that time,[16] a clinical report dated 9 November 2000 in relation to his workplace injury and workers compensation claim,[17] and a clinical report dated 17 January 2011 in relation to an insurance claim made under a Total and Permanent Disability policy.[18] The Agency also sought the Applicant’s clinical records from Dr Nagesh under summons. That only resulted in the production of the document dated 17 January 2011, but in the covering letter dated 19 April 2022 in response to the summons, Dr Nagesh indicates that the Applicant had stopped consulting him 11 years earlier.[19]

    [15] Joint Tender Bundle, Tab D3, page 242.

    [16] Joint Tender Bundle, Tab B9, pages 75 -6.

    [17] Joint Tender Bundle, Tab B14, pages 87–94.

    [18] Joint Tender Bundle, Tab B16, page 97–105.

    [19] Joint Tender Bundle, Tab D3, page 238–53.

25. The Applicant also provided the Agency and the Tribunal with several documents that relate to his workplace injury in 2000, his subsequent attempted rehabilitation and later workers compensation and insurance outcomes. These include a letter closing his rehabilitation file dated 23 May 2005 from a Senior Rehabilitation Consultant with the Commonwealth Rehabilitation Service;[20] notice from Hostplus dated 5 July 2016 that a Total and Permanent Disablement Benefit had been approved for payment;[21] a Zurich Retirement Plan Annual Statement dated 18 April 2009;[22] a NRMA Workers Compensation (SA) Limited worker’s compensation claim determination dated 17 June 2002;[23] a letter from an Occupational Physician to NRMA in relation to the Applicant’s worker’s compensation claim dated 30 May 2002;[24] a functional capacity evaluation report prepared by a physiotherapist, Work Injury Management Services Pty Ltd dated 10 April 2002; [25] a report to Hostplus from a General Practitioner (Dr K Trigg) from Nailsworth Surgery 19 April 2011;[26] and, an Australian Government Job Capacity Assessment Report dated 15 March 2010.[27] The Agency obtained under summons from the Nailsworth surgery two further documents addressed to NRMA dated 17 December 2001 and 20 December 2002 in relation to the Applicant’s workers compensation claim.[28]

    [20] Joint Tender Bundle, Tab B2, pages 65–6.

    [21] Joint Tender Bundle, Tab B7, pages 72–3.

    [22] Joint Tender Bundle, Tab B8, page 74.

    [23] Joint Tender Bundle, Tab B11, page 78.

    [24] Joint Tender Bundle, Tab B12, pages 79 – 80.

    [25] Joint Tender Bundle, Tab B13, pages 81–6.

    [26] Joint Tender Bundle, Tab B15, pages 254–62.

    [27] Joint Tender Bundle, Tab B17, pages 106–12.

    [28] Joint Tender Bundle, Tab D4, pages 257–60.

26. Additionally, the Applicant provided the Agency and the Tribunal with copies of the reported results of X-rays taken of his left knee and ankle on 6 February 2008;[29] ultrasounds of his right hip and trochanter dated 18 October 2010;[30] an X-ray of his left shoulder dated 16 September 2004; CT scans of his Lumbar spine dated 27 September 1993, 8 October 1993 and 2 May 2000;[31] a whole body bone scan dated 15 December 2000;[32] an MRI of his left wrist dated 13 September 2000;[33] an X-ray and MRI of his left knee dated 18 December 2018;[34] and, an MRI of his right wrist dated 9 August 2001.[35] He also provided a medical note of a medical procedure performed on his left ankle on 10 April 2008,[36] and an ‘operation record’ in relation to a left knee arthroscopy dated 1 November 2016.[37]

    [29] Joint Tender Bundle, Tab B19, page 114.

    [30] Joint Tender Bundle, Tab B21, page 116.

    [31] Joint Tender Bundle, Tab B23, page 118 –9.

    [32] Joint Tender Bundle, Tab B23, page 120.

    [33] Joint Tender Bundle, Tab B23, page 121

    [34] Joint Tender Bundle, Tab B23, page 123.

    [35] Joint Tender Bundle, Tab B23, page 124.

    [36] Joint Tender Bundle, Tab B20, page 115.

    [37] Joint Tender Bundle, Tab B23, page 125.

1. As noted above, just prior to the hearing, the Applicant gave to the Tribunal and the Agency a medical certificate dated 31 May 2024 and an associated report for a CT scan of his Lumbar Spine.[38]

   [38] Exhibit 1.

2. Apparently in response to targeted questions issued to him by the Agency, the Applicant’s current Consultant Psychiatrist, Dr W Black, provided a report dated 13 October 2023 which sets out the Applicant’s psychiatric diagnosis, treatment history, current presentation, a functional assessment, and an opinion about the availability and prospects of further treatment.[39]

   [39] Joint Tender Bundle, Tab C4, pages 194 – 200.

3. The Agency called as an independent expert witness Ms Belinda Dwyer, Principal Occupational Therapist, Direct Occupational Therapy. Ms Dwyer undertook a functional capacity assessment of the Applicant at his home on 11 May 2023, and produced an expert report which incorporates the findings of that assessment which is dated 13 June 2023.[40]  Ms Dwyer’s qualifications and experience is set out at page 1 and in Appendix 1 of her report. In short summary she is a registered Occupational Therapist who holds a BASc (Occupational Therapy) with extensive current experience conducting functional assessments including in a NDIS context, and a history working in medical rehabilitation.[41]  At page 1 of her report, Ms Dwyer states that she has read and considers herself bound by the Tribunal’s guidelines for persons giving expert and opinion evidence.[42] As noted above, Ms Dwyer gave evidence under oath at the hearing on 3 June 2024. Ms Dwyer’s qualifications and experience were not subject to challenge. 

   [40] Joint Tender Bundle, Tab C3, (Dwyer Report), pages 150–92.

   [41] Dwyer Report, page 150 and 192.

   [42] Dwyer Report, page 150.

4. The Agency also called as an independent expert witness Dr Jan Tomlinson, Consultant Orthopaedic Surgeon. Dr Tomlinson conducted as assessment of the Applicant by video conference on 29 September 2022 from a physiotherapy clinic local to him with the assistance of a physiotherapist who was present with him during the assessment. Dr Tomlinson produced two expert reports in relation to her assessment, the first of which is dated 16 December 2022 (first report).[43] Dr Tomlinson’s second report (supplementary report), dated 14 August 2023, provides her further opinion in relation to the Applicant’s physical impairments after she was briefed with additional medical imaging which the Applicant agreed to participate in at the request of the Agency.[44] Dr Tomlinson states after section 15 of her first report that she has read and considers herself bound by the Tribunal’s expert witness code of conduct.[45] Dr Tomlinson gave evidence under affirmation at the hearing on 7 June 2024.  Dr Tomlinson’s qualifications and experience were not subject to challenge.

   [43] Joint Tender Bundle, Tab C1 (Tomlinson first report), pages 127 – 43.

   [44] Joint Tender Bundle, Tab C1, (Tomlinson supplementary report), pages 145 – 51.

   [45] Tomlinson first report, page 127.

   The Tribunal’s role

5. The Tribunal’s role in undertaking this administrative review is to reach its own conclusion as to what is the correct decision by conducting its own independent assessment of the factual matters necessary to be addressed in determining if the Applicant meets the criteria for access to the NDIS. This is, in essence, to do again what the original decision-maker did.  In this respect, the Tribunal stands in the shoes of the original decision-maker for the review process.[46]  The Tribunal’s role is to make the correct decision on the material before it as it stands on the date of the hearing. This may include consideration of material not considered by the delegate who made the decision subject to administrative review.[47]

   [46] Shi v Migration Agents Regulation Authority (2008) 248 ALR 390 at 422-423 [141]; 420-421 [134] per Keifel J; 423 [142]; 412-413 [100] per Hayne and Heydon JJ.

   [47] Ibid, 423-424 [142]-[147] per Keifel; 413 [101] per Hayne and Haydon JJ.

6. In reviewing the delegate’s decision, the Tribunal may exercise all the powers and discretions that are conferred on the CEO by the NDIS Act. It may affirm, vary, or set aside the decision under review. If it sets aside the decision, it may substitute a different decision for the internal review decision or remit the access request to the CEO for reconsideration with any directions or recommendations the Tribunal considers appropriate.[48]

   [48] s 43(1) of the NDIS Act.

   Legislative scheme

7. Chapter 3, Part 1 of the NDIS Act sets out the process by which a person may become a participant in the NDIS. In this respect, s 18 provides that a person may make a request to the Agency to become a participant in the NDIS, which is designated an access request. 

8. Section 20 provides, relevantly, that if a person, designated the prospective participant, makes an access request, the CEO must decide whether the prospective participant meets the access criteria.

9. Section 21 specifies the circumstances in which a person meets the access criteria. It provides, relevantly:

   21       When a person meets access criteria

   (1)       A person meets the access criteria 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).

   …

10. Section 24 specifies the disability requirements that must be satisfied to obtain access to the NDIS. It provides:

    24       Disability requirements

    (1)       A person meets the disability requirements 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 a 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.

    (2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

    (3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.

    (4)       Subsection (3) does not limit subsection (2).

11. Section 209 of the Act provides that the Minister administering the Act may, by legislative instrument, make rules governing the operation of the NDIS in accordance with that section. The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (NDIS (Becoming a Participant) Rules) are made pursuant to that section and are applicable in this review.

12. Part 2 of the Rules provides an outline of the Rules:

    Part 2   Outline of these Rules

    2.1A person, or someone who is able to act on their behalf, may make a request under the Act to become a participant in the NDIS (an access request). Once a person becomes a participant, they can develop a personal goal-based plan which may provide for supports for the participant …

    2.2      This Instrument assists the CEO determine who becomes a participant. …

    2.3A person becomes a participant in the NDIS on the day the CEO of the Agency decides they meet the access criteria.

    2.4A person meets the access criteria if the CEO is satisfied that they meet each of the following, …

    (a)       the age requirements (see Part 3);

    (b)       the residence requirements (see Part 4);

    (c)either the disability requirements or the early intervention requirements (see Parts 5 and 6).

    2.5      Generally, speaking:

    (a)a person will meet the disability requirements if they have a disability that is attributable to an impairment that is permanent or likely to be permanent and that results in substantially reduced functional capacity;

    (b)alternatively, a person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity.  Instead, the early intervention requirements consider the likely trajectory and impact of a person’s impairment over time and the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity. …

13. Part 5 of the Rules explains the circumstances in which a prospective participant meets the disability requirements for access to the NDIS. It provides, relevantly:

    Part 5   When does a person meet the disability requirements?

    5.1The Act sets out when a person meets the disability requirements. The requirements are met if:

    …

    [Paragraphs 5.1 and 5.2 summarise section 24 of the Act.]

    5.3This Part sets out rules relating to some of the elements in paragraph 5.1 above, however, in order to meet the disability requirements, all of the requirements in that paragraph need to be satisfied.

    When is an impairment permanent or likely to be permanent for the disability requirements?

    5.4An impairment is, or is likely to be, permanent (see 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

    5.5An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including psychosocial functioning, may improve.

    5.6An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent.  The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

    5.7If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

    [Paragraphs 5.4 to 5.7 are made for the purposes of paragraph 27(a) of the Act]

    When does an impairment result in a substantially reduced functional capacity to undertake relevant activities?

    5.8An 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.

    [Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act].

14. The Agency has also developed operational guidelines to assist in the interpretation and application of the NDIS legislative scheme.  These guidelines are Agency policy documents issued in the exercise of executive rather than legislative power.  They are therefore not binding upon the Tribunal but should be applied as relevant government policy unless they prove inconsistent with the statutory provisions.[49] The relevant Guideline at the time of this review is “Applying to the NDIS” (1 February 2024)[50]

    [49] Re Drake and Minister for Immigration and Ethnic Affairs (no.2) [1979] 24 ALR 577 at [590].

    [50] Applying to the NDIS | NDIShttps://ourguidelines.ndis.gov.au/home/becoming-participant/applying-ndis accessed 8 July 2024.

    Consideration

15. To determine the outcome of this review, the Tribunal must pose and answer the following questions:

    (i)Does the Applicant meet the age requirements for the NDIS?

16. It is not in issue that the Applicant meets the age requirements for the NDIS. On the evidence set at out at paragraph 11 above I make that finding.

    (i)Does the Applicant meet the residence requirements of the NDIS?

17. Nor is it in issue that the Applicant meets the residence requirements for the NDIS. On the evidence set out at paragraph 2 above I also make that finding.

    (iii)Does the Applicant meet the disability requirements for the NDIS?  This requires consideration of five separate, cumulative,[51] sub-questions (subject to them being reached):

    [51] National Disability Insurance Agency v Davis [2022] FCA 1002 (‘Davis’) at [7].

    (a)Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments or one or more impairments to which a psychosocial disability is attributable?

    (b)If the answer to (a) is “yes”, is the impairment(s) permanent, or likely to be permanent?

    (c)If the answer to (b) is “yes”, does the impairment(s) 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.

    (d)If the answer to (c) is “yes”, does the impairment affect the person’s capacity for social and economic participation?

    (e)If the answer to (d) is “yes”, is the person likely to require support under the NDIS for the person’s lifetime?

    Impairment

18. The application of s 24(1)(a) of the Act requires a distinction to be drawn between the concepts “health condition”, an “impairment”, and “disability”. None of those terms are defined in the NDIS Act.

19. In Mulligan,[52] the Court concluded that the term ‘disability’ is used in the Act, and in s 24 specifically, as a description of the overall effect of a person’s impairments on that person’s ability to participate in all aspects of personal and community life. In Davis,[53] the Court observed that the ‘impairment’ that is attributable to disability for the purposes of s 24 must be identified with precision because the threshold questions on permanency (s 24(1)(b)) and substantially reduced function (s 24(1)(c)) operate not on the concept of disability, but on the concept of impairment.

    [52] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 (‘Mulligan’), 212, [51].

    [53] Davis at [86].

20. As I have explained in DQKZ[54], interpretative assistance in the application of s 24 can be obtained from the World Health Organisation’s International Classification of Functioning, Disability and Health (ICF) which has as one of its objectives to ’provide a standard language and [conceptual][55] framework for the description of health and health-related states’.[56] 

    [54]  DQKZ and National Disability Insurance Agency [2024] AATA 2276 at [144] - [149] (‘DQKZ’).

    [55] World Health Organisation, 2013, How to use the ICF: A practical manual for using the International Classification of Functioning, Disability and Health (ICF). Exposure Draft for Comment, Geneva.

    [56] World Health Organisation, 2002, Towards a Common Language for Disability Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3 (‘WHO (2002)') at page 2.

21. The ICF is a classification of human function in the context of a ‘health condition’, which is a diagnosis of a disease, disorder, or other health condition. Section 24(1)(a) is concerned with health conditions that give rise to intellectual, cognitive, neurological, sensory, physical, and psychosocial impairments.

22. The ICF incorporates ‘domains’ that describe changes in body function (physiology) and structure (anatomy), what a person with a health condition can do in their usual environment (their level of capacity), as well as what they actually do in their usual environment (their level of performance).[57] The ICF defines “body functions” as the physiological functions of body systems (including psychological functions). It defines “body structures” as the anatomical parts of the body such as organs, limbs, and their components. It defines “impairment” as a problem in body function or structure such as a significant deviation or loss as compared with typical or expected function or structure.[58] The Applying to the NDIS operational guidelines reflect this conceptualisation of impairment.[59]

    [57] WHO (2002), page 2.

    [58] WHO (2002), page 10.

    [59] Applying to the NDIS | NDIShttps://ourguidelines.ndis.gov.au/home/becoming-participant/applying-ndis accessed 8 July 2024.

23. For the reasons I set out in DQKZ,[60] the ICF is extrinsic material that may be used to assist in the interpretation of the provisions contained in s 24 pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth).

    [60] DQKZ at [144].

24. Drawing on the ICF framework, s 24(1)(a) requires the decision-maker to identify with precision the problem of body function or structure which, in interaction with other personal, social, and environmental factors, is generative of the prospective participant’s disability.

25. In Section 1 of the NDIS Access Request Form the Applicant lists several health conditions as being ‘disabilities’ in relation to which he sought access to the NDIS. In Section 2 of that Form, his General Practitioner, Dr Ojober, states that the Applicant’s ‘disability’ is ‘Lumbar Spine Spondylosis Disc prolapse L4 L5 with congenital spina bifida’. It was only based on these conditions that the Applicant was assessed for access to the NDIS by the original decision maker and the delegate on internal review.

26. In his application for review of the internal review decision the Applicant refers to a more extensive range of current and past health conditions as indicating that he meets the access criteria for the NDIS. In this respect he states:[61]

    [61] Joint Tender Bundle, Tab T1, page 3 – 4.

    …

    I am providing further details about my injuries.

    Unfortunately the doctor who treated me for many years and for a number of injuries retired 4 years ago.  My extensive file was culled in march of this year as 7 years had elapsed on activities in the file.  The same thing has occurred for specialist files.

    …

    I will provide what information I can.

    Many injuries are now accompanied with arthritis.

    Past medical history

    Alcohol abuse and dependence

    It is a problem that can always resurface and costs a month or more of useless time.

    Smoking cessation

    It is still a daily grind after 4 years.

    Trochanteric bursa. Right hip

    I am unable to do much exercise bike because of this as it was a cycling accident.  My hip collapses on me with no warning and limits my bending ability.

    Knee arthroscopy. Left.

    I fell on my knees at work in 1998 and have had 2 anthroscope [sic] procedures and it is due for another.  It is like a toothache a lot of the time.  It limits bending getting out of the recliner and walking.

    Bronchitis and emphysema

    I get very short for breath which limits my stamina to perform duties.

    Ankle break. Left

    This occurred in 1976 at school and was never treated properly. I have twisted it at least 30 times in my life as it is very weak.  A piece of bone is stuck in a ligament.  Some days it stops me from walking outside because it hurts so much.  Most of the time it is like the toothache.

    Wrist hyperflexion. Left.

    This occurred at work in 1997 and I wore a brace for 1 year.  I have no strength in the wrist and it is like a tooth ache most of the time.  I struggle to do my dishes with it.

    Tennis elbow. Right

    This limits my ability to use my right arm.  Repetitive activities flare it up.

    Current active problems

    Disc prolapse

    This occurred in 1995 and then again in 2000.

    It has haemorrhaged about 12 times since and the last time was about 6 months ago when I tried to pull out weeds in my backyard.  It takes 2 months to recover with mainly rest. Physiotherapy helps but I can’t afford it.

    Social anxiety and Major depressive disorder

    Most days I am unable to function or complete activities.  It took me 2 years to move a book from the table to the adjacent book case as an example. I don’t talk to anyone.

    Allergic rhinitis. Asthma and hay fever.

    I wheeze a lot and run out of breath.

    Scoliosis spine

    I don’t really notice anything.

    Mild OSA and CPAP. Insomnia.

    I don’t sleep well and am always tired.

    GORD

    I just watch what I drink and eat.

    Shoulder injury. Left.

    This occurred in the gym in 1988.

    I get pins and needles in my arm and hand.  I have no strength in the arm.  It requires cortisone now and then.

    Shoulder injury. Right.

    This occurred 1 year ago where I fell and braced myself straining my right arm.  I get pins and needs in my hand and arm and numbness. I have no strength in it and with the back injury I am struggling to do my dishes.  It needs physiotherapy.

    Ventricular ectopic

    This is fatal and shortens life.

    Hypertension

    This causes chest pain and the tablets treating it causes cramps in the hands when performing tasks.

    Premature pulse

    This needs an operation to replace a heart value and often feels like the heart has stopped.  Sometimes I feel like I am about to have a heart attack.

    Diabetes type 2

    This makes me feel weary all the time.

    Physiotherapy helps some injuries but I can’t afford it.

    I am unable to do any cleaning in my house and because I am disabled unity housing want to evict me.  The house is not cleaned to their standard.

    …

    As you can see my injuries are extensive.

1. In his Opening Statement, in response to my prompt that he tells me why he thought he met the access criteria for the NDIS, the Applicant said:

   [T]wo grounds. One is physical and one is emotional. When I first lodged the application, a large part of that was emotional problems, and I had a good psychiatric report from Dr Nagesh, which was the basis for my TPD for two superannuation groups. It took nearly three years for the respondent to even inquire about a report from my current psychiatrist, so I don’t think they were really quite serous in the assessment.  On the physical side of it … was the main basis I was looking at the NDIS for …  the fact is, I’m unable to clean my house because of my injuries, and living in a dirty house just makes my depression far worse.  And because of my back, mainly I just sit or lay down on the bed. That’s about all I can do.[62]

   [62] Transcript, Day 1, page 5, lines 9 – 26.

2. Despite that, in response to questioning from counsel for the Agency, the Applicant indicated that he sought access to the NDIS based on all the conditions referred to in his application for review, both those that are listed under the heading ‘[p]ast medical problems’ and those listed under the heading ’[c]urrent active problems’. 

3. The conditions stated in the Applicant’s application for administrative review are mixed descriptions of health conditions (for example, Bronchitis, Emphysema, Trochanteric Bursitis), treatments (for example, Arthroscopy, Continuous Positive Airway Pressure (CPAP)), and functional impacts (for example, shortness of breath, reduced stamina). These descriptions do not, without more, identify with precision a current impairment for the purposes of s 24(1)(a).

4. I will deal in turn with each ‘condition’ the Applicant lists.

   Alcohol dependence

5. The Applicant lists ‘alcohol abuse and dependence’ as a past condition that he has experienced ‘that can always resurface’. 

6. In Dr Ojober’s summary of the Applicant’s medical history he records under the heading ‘past medical history’ five episodes of ‘alcohol abuse’ and ‘detoxification’ between 2013 and 2016. There is no reference to alcohol dependence in Dr Ojober’s summary of the Applicant’s ‘current active problems’ (as of 4 August 2021). Under the heading ‘social history’ he records ‘alcohol: never’. Nor does he record under ‘current medications’ any medication related to alcohol dependency.[63] 

   [63] Joint Tender Bundle, Tab T6, page 60; the same record appears in the letter of support Dr Ojober provided in relation to the Applicant’s NDIS Access Request dated 8 November 2021 which is in the Joint Tender Bundle, Tab B6, pages 70–1.

7. In his clinical report dated 14 November 2000, Dr Nagesh refers to the Applicant as having periods of alcohol dependence in 1997-1998 which had re-emerged due to his workplace injury and related matters in 2000.[64] In his later clinical report prepared in relation to the Applicant’s Total and Permanent Disablement claim, Dr Nagesh refers to the Applicant’s substantial recovery from alcohol dependence in 2007-2008, followed by relapse.[65]

   [64] Joint Tender Bundle, Tab B14, page 88–94.

   [65] Joint Tender Bundle, Tab B16, page 100-1.

8. In his report to the Applicant’s insurer dated 19 April 2011, Dr Trigg refers to the Applicant as having a long history of alcohol dependence, alternating with times when he does not drink alcohol. He reported that the Applicant was not then drinking alcohol.[66] 

   [66] Joint Tender Bundle, Tab B15, page 95.

9. In his report dated 13 October 2023, Dr Black refers to the Applicant as having a ‘history of alcohol abuse and dependence’, but that ‘he had been abstinent from alcohol for an extended period’. He states that the Applicant ‘has been diagnosed with’ ‘conditions that [he] is treating’ which include ‘alcohol abuse (in remission)’.[67] 

   [67] Joint Tender Bundle, Tab DC4, pages 194 and 198.

10. In his response to what appear to have been targeted questions from the Agency the Applicant stated in an email to the Tribunal and the Agency on 9 January 2024 that he ‘drinks[s] occasionally up to 15 standard drinks per week over 3 or 4 days in some weeks’ but that ‘this year I am not drinking … in a quest to lose weight and be healthier’.[68]

    [68] Joint Tender Bundle, Tab B24, page 125.

11. On this evidence I cannot be satisfied that the Applicant currently lives with alcohol dependence and any impairment that is derivative of that condition. In any event, it is clear from Dr Nagesh’s evidence that the impact of this condition, when active, is in relation to the exacerbation of the Applicant’s mood disorder[69] which I will consider separately. I will therefore not consider ‘alcohol abuse and dependence’ further for the purposes of s 24(1)(a).

    [69] Joint Tender Bundle, Tab B14, page 91; Tab B16, page 101.

    Cigarette smoking

12. The Applicant lists “smoking cessation” as a past medical condition which is ‘still a daily grind after 4 years’. 

13. In Dr Ojober’s summary of the Applicant’s medical history he records under the heading ‘past medical history’ three episodes of ‘smoking cessation’ between 2013 and 2015. He also states under the heading ‘social history’ ‘[s]moking: ex-smoker’ and ‘[s]moking quitting status ‘none recorded’. There is no reference to ‘smoking cessation’ in Dr Ojober’s summary of the Applicant’s ‘current active problems’ (as of 4 August 2021).[70] 

    [70] Joint Tender Bundle, Tab T6, page 60; the same record appears in the letter of support Dr Ojober provided in relation to the Applicant’s NDIS Access Request dated 8 November 2021 which is in the Joint Tender Bundle, Tab B6, pages 70–1.

14. There is no other reference to smoking cessation in the evidence before me. 

15. Having regard to the state of the evidence, I cannot be satisfied that the Applicant currently lives with any impairment related to cigarette smoking (other than perhaps respiratory disease which I consider separately following) and will not further consider this reported condition for the purposes of s 24(1)(a).

    Respiratory conditions (Bronchitis, Emphysema, Asthma and Allergic Rhinitis)

16. The Applicant refers to ‘Bronchitis’ and ‘Emphysema’ under the heading ‘past medical history’ as conditions in relation to which he seeks access to the NDIS. He states that these conditions result in ‘shortness of breath which limits his stamina to perform duties’. I note as a matter of common knowledge that Bronchitis is an inflammation of the larger airways of the lungs which causes coughing. Acute Bronchitis is typically a short-term condition caused by a viral infection. Chronic bronchitis is typically caused by cigarette smoking. Emphysema is a chronic pulmonary disease often caused by smoking.

17. In Dr Ojober’s summary of the Applicant’s medical history he records under the heading ‘past medical history’ an episode of ‘acute bronchitis’ dating to 2017 and to a chest X-ray taken at some time in 2017 which revealed ‘some emphysema’ which was treated with Champix (a smoking cessation therapy). Dr Ojober does not refer to bronchitis or emphysema as a ‘current active problem’.  

18. The Applicant refers to Allergic Rhinitis (Hay Fever) and Asthma as ‘current active problems’ in relation to which he seeks access to the NDIS. He states that these conditions cause him ‘to wheeze a lot and run out of breath’.

19. In Dr Ojober’s summary of the Applicant’s medical history he records under the heading ‘current active problems’ Allergic Rhinitis from 2016, and Asthma/Hay Fever from 2021.  Under the heading current medications, he lists a prescription for an ASMOL CFC-Free inhaler (which is a bronchodilator used in the treatment of respiratory conditions such as Asthma and Emphysema).

20. I can find no other reference to respiratory conditions in the evidence before me. 

21. I note that Allergic Rhinitis and Hay Fever are the same thing. There is no evidence as to whether the Applicant experiences this condition intermittently or persistently or in response to what irritant. There is no evidence before me that indicates that the Applicant has a current diagnosis of emphysema.

22. On the state of the evidence, I can only be satisfied that the Applicant lives with an ongoing respiratory impairment derivative of Asthma. Within the ICF framework, within the domain of body structure, this is an impairment to the structure of the respiratory system,[71] being to the bronchial tree[72] and alveoli[73] of the lungs.[74] Within the domain of body function, it is an impairment of respiratory function,[75] being depth of respiration.[76] I am satisfied that these are ‘physical’ impairments for the purposes of s 24(1)(a).

    [71] ICF s430.

    [72] ICF s43010.

    [73] ICF s43011.

    [74] ICF s4301.

    [75] ICF b440: Description: Functions of inhaling air into the lungs, the exchange of gases between air and blood, and exhaling air.

    [76] ICF b4402: Description: Functions related to the volume of expansion of the lungs during breathing.

    Gastro-oesophageal Reflux Disease (GORD)

23. The Applicant refers to Gastro-oesophageal Reflux Disease (GORD) as a condition in relation to which he seeks access to the NDIS. He also states in relation to that condition, however, that he ‘just needs to watch what he eats and drinks’. As a matter of common knowledge, GORD is a condition involving the overproduction of stomach acid and its reflux into the oesophagus causing stomach and oesophagus irritation.

24. In Dr Ojober’s summary of the Applicant’s medical history he records under the heading ‘current active problems’ that GORD has been a problem since 2017. Under the heading ‘current medications’ Dr Ojober records that the Applicant is prescribed with Pantoprazole (a proton pump inhibiter) for suspected reflux.[77]  

    [77] Joint Tender Bundle, Tab T6, page 60; see also Tab B6, page 71.

25. I have not found any other reference to GORD in the evidence before me.

26. Nevertheless, the evidence is sufficient for me to conclude that the Applicant lives with this condition. Within the ICF framework GORD is the result of impaired functions of the digestive system, specifically, impaired transport of food through the stomach and intestines which is inclusive of enzyme production and actions in stomach and intestines.[78] In this respect the Applicant lives with impaired function of the proton pumps (or enzymes) within the stomach which results in the secretion of excessive hydrogen ions into the stomach cavity causing hyperacidity in the stomach. Related to this is impaired function involving the sensation of pain in the stomach and abdomen.[79] These are physical and sensory impairments for the purposes of s 24(1)(a).

    [78] ICF b5150.

    [79] ICF b28012: Description: Sensation of unpleasant feeling indicating potential or actual damage to some body structure felt in the stomach or abdomen.

    Sleep

27. The Applicant states that he seeks access to the NDIS based on ‘[m]ild Obstructive Sleep Apnoea (OSA)’ in relation to which he uses a Continuous Positive Airway Pressure (CPAP) machine, and insomnia. He states in relation to these conditions that he does not sleep well and is always tired.

28. In Dr Ojober’s summary of the Applicant’s medical history he records under the heading ‘current active problems’ that the Applicant has had mild OSA since 2015 ‘especially during supine sleep’ (lying face upwards). He records that the Applicant has used a CPAP machine in relation to that condition since 2019. Dr Ojober also records that the Applicant has experienced insomnia since 2016.  However, no treatment in relation to that condition is recorded by Dr Ojober in the Applicant’s current list of medications (as of 4 August 2021).

29. In his report dated 13 October 2023 Dr Black records ‘insomnia’ as a ‘presenting problem’ at that time and as a ‘diagnosis’ that he is currently treating. He states that insomnia ‘affects [the Applicant’s] sleep quality and overall well-being’.[80]

    [80] Joint Tender Bundle, Tab C4 pages 94 and 98.

30. As a matter of common knowledge Obstructive Sleep Apnoea is an organic condition that results from the relaxation of the muscles of the pharynx causing the obstruction of breathing. It is thus a condition related to body structure and function. Within the ICF framework it is an impairment of body structure, being the structure of the pharynx,[81] and an impairment of the functions of the respiratory system, being the function of breathing through the mouth.[82] This is a physical impairment for the purposes of s 24(1)(a).

    [81] ICF s330.

    [82] ICF b4500: Description: Functions of breathing through the mouth.

31. The situation is less straightforward with respect to insomnia. Insomnia may have an organic cause (being a problem of body structure or function) which may constitute an impairment for the purposes of s 24(1)(a), or it may be the result of non-organic personal or environment factors (for example, excessive caffeine or other stimulant intake, poor sleep hygiene related to lifestyle choices, and poor exercise)[83] that cannot constitute an impairment for the purposes of s 24(1)(a).

    [83] It is not my intention to suggest that any of these apply in this case.

32. There is some contextual evidence that is suggestive that the Applicant’s insomnia may be a symptom of his Major Depressive and Anxiety Disorders.[84] I deal with those conditions separately, below. On the lack of evidence before the applicant has not established that his insomnia does have an organic cause that is independent of those conditions. I thus cannot be satisfied that it is, or is derivative of, an impairment for the purposes of s 24(1)(a). I will therefore not consider this condition further.

    [84] That may be suggested by Dr Black in his grouping of insomnia with MDD and Anxiety: Joint Tender Bundle, Tab C4, pages 94 and 98; see also Dr Nagesh’s report dated 9 November 2000; Joint Tender Bundle, Tab B14, page 91.

    Medical conditions (Ventricular Ectopic, Hypertension, Premature Pulse and Diabetes Type 2)

33. The Applicant lists Ventricular Ectopic (a type of arrythmia or abnormal heart rhythm), Hypertension (high blood pressure), Premature Pulse (or Premature Ventricular Contraction (PVC) which is a form of heart arrythmia), and Diabetes Type 2 (ineffective and insufficient insulin absorption and production) as health conditions in relation to which he seeks access to the NDIS. He states with respect to Ventricular Ectopic that ‘it is fatal and shortens life’.  With respect to Hypertension, he states that it ‘causes chest pain and the tablets treating it causes cramps in the hands …’. With respect to Premature Pulse he states that he ‘needs an operation to replace a heart valve and often feels like the heart has stopped’. With respect to Diabetes Type 2, he states that it ‘makes [him feel] weary all the time”.

34. In his summary of the Applicant’s medical history, Dr Ojober records under the heading ‘current active problems’ Hypertension, Ventricular Ectopic and Diabetes Mellitus – Type II which the Applicant has been diagnosed with since 2018, 2018, and 2021 respectively. Dr Ojober does not specifically refer to Premature Pulse or PVC in his summary. Under the heading ‘current medications’ Dr Ojober records that the Applicant was prescribed with Perindopril (used to treat hypertension and heart failure) and Metformin (a glucose control agent used in the treatment of Type 2 Diabetes) at that time (4 August 2021).

35. I can find no other reference to these conditions in the evidence before me.

36. As I have already stated above, it is not sufficient for the purposes of s 24(1)(a) that the Applicant establish he is diagnosed with a health condition. He must establish with precision the impairment(s) that are derivative of that condition. I consider what the Applicant says in his application about the impact of those conditions on his function. However, while I do not disbelieve what the Applicant says, this is not sufficient without some independent medical corroboration to establish that the Applicant lives with a physical impairment that is attributable to these conditions. I will therefore not further consider these conditions.

    Social Anxiety and Major Depressive Disorder

37. The Applicant seeks access to the NDIS in relation to Social Anxiety and Major Depressive Disorder (MDD) which he refers to under the heading ‘current active problems’. He states that due to these conditions ‘most days [he] is unable to function or complete activities’ and that he ‘doesn’t talk to anyone’.

38. In his summary of the Applicant’s medical history, Dr Ojober records under the heading ‘current active problems’ that the Applicant has been diagnosed with depression and social anxiety since 2013. Under the heading ‘current medications’ Dr Ojober records that the Applicant was prescribed Risperidone (an antipsychotic medication), Cymbalta (which is a brand name for Duloxetine which is used to treat major depression and anxiety) at that time (4 August 2021).

39. In his report dated 9 November 2000 in relation to the Applicant’s then workplace injury Dr Nagesh states that the Applicant has had ’longstanding dysthymia (moderately severe depression) ever since his young adult days’ in relation to which he has received treatment in the form of antidepressant medication and psychotherapy. He states that this condition was associated with low self-esteem, feelings of worthlessness, indecision, and procrastination.[85] He states that the Applicant’s workplace injury and events surrounding it resulted in a superimposed Major Depressive Episode.[86]

    [85] Joint Tender Bundle, Tab B14, page 88.

    [86] Joint Tender Bundle, Tab B14, page 91.

40. In his report dated 26 June 2009 in support of the Applicant’s social housing application, Dr Nagesh refers to the Applicant as having ‘double depression’ being a background Dysthymic Disorder over which is superimposed a major depressive episode. He refers to this condition as resulting in ‘low motivation’, ‘compromised concentration’, ‘tiredness’ and other ‘neurovegetative disturbances’ (physical body symptoms).[87] 

    [87] Joint Tender Bundle, Tab B9, page 75.

41. In his report of 17 January 2011 in relation to the Applicant’s Total and Permanent Disablement claim Dr Nagesh again refers to the Applicant as having a long-standing Dysthymic Disorder which is associated with recuring Major Depressive Episodes triggered by specific events such as workplace stress and pain associated with musculoskeletal conditions.[88]

    [88] Joint Tender Bundle, Tab B16, page 104.

42. In the Australian Government Job Capacity Assessment Report completed on 15 March 2010 the assessor accepted based on the medical evidence before him that the Applicant lived with ‘depression’ which was a ‘permanent’ condition. The assessor goes on to state:

    This condition is considered to be permanent. It has been diagnosed (TDR by Dr Trigg 28/01/2010, optimally treated (medication and psychotherapy) and is considered to be stabilised (no significant function improvement is expected within the next two years) …

    According to TDR the client suffers depressed mood, poor grooming and poor concentration and self-regard.  This leads him to avoid confronting and difficult situations and great difficulty persisting with tasks.

    The client reported that he suffers poor concentration, memory, lethargy, difficulty functioning, struggles with ability to focus, read, comprehend and retain information.  The client also experiences loss of sleep with about 5-6 hours of sleep a night.  The client reported a lack of interest with social interaction but does talk to a few people at university for a brief period….[89]

    [89] Joint Tender Bundle, Tab B17, pages 107–8.

43. In his letter to the Applicant’s insurer dated 19 April 2011, Dr Trigg, refers to the Applicant as having a ‘long history of depression’.

44. In his report dated 13 October 2023, Dr Black refers to the Applicant as having a ‘complex psychiatric history, which includes major depression, generalised anxiety, social anxiety, intermittent panic attacks’ with a (then) ‘current presentation’ which included symptoms of depression and anxiety. He reports that the Applicant continued to be treated for those conditions with Duloxetine and Risperidone at that time. In response to the Agency’s specific questions, Dr Black ‘confirmed’ that the Applicant has diagnoses of Major Depressive Disorder which is associated with persistent low mood, lack of interest and low motivation, and social anxiety, which ‘hinders [the Applicant’s] ability to engage in social interactions and daily activities’.[90]

    [90] Joint Tender Bundle Tab C4, pages 194, 195 and 198.

1. The Agency does not contest that the Applicant lives with impairments that are attributable to psychosocial impairments.[91]

   [91] Agency’s Statement of Facts, Issues, and Contentions (‘Agency’s SFIC’), page 4.

2. Having regard to this evidence I am satisfied for the purposes of s 24(1)(a) that the Applicant lives with impairments to which a psychosocial disability is attributable. Drawing on the ICF framework, those are impairments of specific mental functions, being his:

   -    temperament and personality function[92] (specifically, his psychic stability function);[93]

   -    his energy and drive functions[94] (specifically, his energy level[95] and motivation functions);[96]

   -    attention functions[97] (specifically, his sustaining attention functions);[98]

   -    emotional functions[99] (specifically his regulation of emotion[100] and range of emotion functions);[101]

   -    memory functions[102] (specifically his short-term memory[103] and long-term memory);[104] and

   -    experience of self and time functions[105] (specifically his experience of self functions)..[106]

   [92] ICF b126: Description: General mental functions of constitutional disposition of the individual to react in a particular way to situations, including the set of emotional characteristics that make the individual distinct from others.

   [93] ICF b1263: Description: Mental functions that produce a personal disposition that is even-tempered, calm and composed, as contrasted to being irritable, worried, erratic and moody.

   [94] ICF b130: Description: General mental functions of physiological and psychological mechanisms that cause the individual to move towards satisfying specific needs and general goals in a persistent manner.

   [95] ICF b1300: Description: Mental functions that produce vigour and stamina.

   [96] ICF b1301: Description: Mental functions that produce the incentive to act; the conscious or unconscious driving force for action.

   [97] ICF b140: Description: Specific mental functions of focusing on an external stimulus or internal experience for the required period of time.

   [98] ICF b1400: Description: Mental functions that produce concentration for the period of time required.

   [99] ICF b152: Description: Specific mental functions related to the feeling and affective components of the processes of the mind.

   [100] ICF b1521: Description: Mental functions that control the experience and display of affect.

   [101] ICF b1522: Description: Mental functions that produce the spectrum of experience of arousal of affect or feelings such as love, hate, anxiousness, sorrow, joy, fear and anger.

   [102] ICF b144: Description: Specific mental functions or registering and storing information and retrieving it as needed.

   [103] ICF b1440: Description: Mental functions that produce a temporary disrupt able, memory store of around 30 seconds duration from which information is lost if not consolidated into long term memory.

   [104] ICF b1441: Description: Mental functions that produce a memory system permitting the long-term storage of information from short term memory and both autobiographic memory for past events and semantic memory for language and facts.

   [105] ICF b180: Description: Specific mental functions related to the awareness of one’s identity, one’s body, one’s position in the reality of one’s environment and of time.

   [106] ICF b1800: Description: Specific mental functions of being aware of one’s own identity and one’s position in the reality of one’s environment around oneself.

   Muscular skeletal and related conditions

3. The Applicant seeks access to the NDIS based on several musculoskeletal conditions some of which are associated with neurological condition.

4. In his application for administrative review, under the heading past medical history, he identifies these as a Trochanteric bursa of the right hip (inflammation of the fluid sac around the hip bone) which he states causes his hip to ‘collapse’ without warning and limits his bending ability. He also refers to having had two arthroscopies (keyhole surgery) to his left knee to treat an injury that occurred when he fell on his knee at work in 1998. He does not identify specifically what that injury was (for example, whether it was damaged Cartlidge or ligament), but states that it inhibits him from standing from a seated position and walking due to pain. The Applicant also refers to a past fracture of his left ankle which he says occurred in 1976 when he was at school. He contends that the fracture was not treated properly at the time, that there is a bone fragment which has perforated a ligament which causes constant pain and that he experiences general weakness in this joint which results in him incurring repeated further injuries in the form of sprains. Additionally, the Applicant identifies a left wrist hyperflexion which causes pain and loss of strength making it difficult for him to wash dishes, and right tennis elbow (stained or torn tendons of the forearm) which ‘flares up’ with repetitive activities and limits his ability to use that arm.

5. Under the heading ‘current active problems’ the Applicant refers a ‘disc prolapse’ which I take to mean the Lumbar Spine prolapse at the L4 and L5 Vertebrae referred to by Dr Ojober in section 2 of the Access Request Form. He states that this injury was incurred in 1995 and again in 2000, and has been subject to repeated relapse since then, resulting in his substantial immobilisation for extended periods. He also refers to a left and right shoulder injury which results in a loss of strength in both arms and in ‘pins and needles’.

6. The Agency does not contest that the Applicant lives with physical, neurological, and sensory impairments that are derivative of his spine conditions, left knee injury, left ankle injury, left wrist injury, bilateral shoulder injuries, right hip injury, and right elbow injury as set out in the Access Request Form and in his application for review.[107] With the exception of the Applicant’s spine conditions a summative description of those conditions is to be found in Dr Tomlinson’s first and supplementary reports. In this respect, I note that the Agency briefed Dr Tomlinson with all medical and related documents concerning these conditions that are in evidence before me, and that the Applicant accepts her analysis of that evidence. However, the Agency did not brief Dr Tomlinson to provide an opinion in relation to the Applicant’s spine conditions because the existence of impairments derivative of those conditions was never in issue. I therefore must look to other material before me in relation to those conditions.

   [107] Agency’s SFIC, page 4 at [16].

7. Turning to the spine conditions first, I am satisfied on the medical and related evidence before me that the Applicant lives with Lumbar Spondylosis (degeneration of the vertebrae and disks of the lower back), including prolapsed intervertebral disks at the L4 and L5 vertebrae, congenital spina bifida occulta at the L5 vertebrae (incompletely formed vertebrae) and related damage to the spinal nerves of the lumbar spine.[108]

   [108] Opinion of Dr Ojober contained in section 2 of the Access Request Form; Dr Ojober’s summary of the Applicant’s medical history in Joint Tender Bundle Tab T6, page 60; CT Lumbar spine report for the Applicant dated 25 October 2021 in Joint Tender Bundle, Tab B5, page 69.

8. Within the ICF framework, at the level of body structure these are impairments of the structure of the trunk,[109] being the structure of the vertebral column,[110] to other musculoskeletal structures related to movement,[111] specifically the joints,[112] and to the structure of the spinal cord,[113] being the lumbosacral spinal cord[114] and spinal nerves.[115]  At the level of body function, they are impairments of sensory and pain functions,[116] being pain in a body part,[117] (the back[118] and joints),[119] and to the functions of the joints and bones, being the mobility of joint functions[120] and the stability of joint functions.[121] These are physical, neurological (spinal nerves) or sensory (pain) impairments for the purposes of s 24(1)(a).

   [109] ICF s760.

   [110] ICF s7600.

   [111] ICF s770.

   [112] ICF s7701.

   [113] ICF s1200.

   [114] ICF s12002.

   [115] ICF s1201.

   [116] ICF b280 Description: Sensation of unpleasant feeling indicating potential or actual damage to some body structure.

   [117] ICF b2801: Description: Sensation of unpleasant feeling indicating potential or actual damage to some body structure felt in a specific part, or parts, of the body.

   [118] ICF b28013: Description: Sensation of unpleasant feeling indicating potential or actual damage to some body structure felt in the back.

   [119] ICF b28016: Description: Sensation of unpleasant feeling indicating potential or actual damage to some body structure felt in one or more joints, including small and big joints.

   [120] ICF b710 Description: Functions of the range and ease of movement of a joint.

   [121] ICF b715 Description: Functions of the maintenance of structural integrity of the joints.

9. In relation to the Applicant’s other musculoskeletal conditions, I find based on Dr Tomlinson’s evidence[122] that he lives with:

   -    mild osteoarthritis in the left knee (wear and tear to the joint resulting in chronic pain);

   -    mild osteoarthritis to the talonavicular and mid foot joints of the left ankle, an old tear to the Anterior talofibular ligament (ATFL) and calcaneofibular ligament (CFL) (lateral ankle ligaments);

   -    additionally to the left ankle, a bone spur at the insertion of the Achilles tendon ankle;[123]

   -    early radioscaphoid (wrist joint) arthritis in the left wrist;

   -    rotator cuff tendinopathy (torn tendons), subacromial bursitis (inflammation), acromioclavicular joint osteoarthritis and early right glenohumeral joint osteoarthritis in the right shoulder;

   -    rotator cuff tendinitis, subacromial bursitis, and acromioclavicular joint osteoarthritis in the left shoulder;

   -    moderate osteoarthritis and trochanteric bursitis in the right hip;

   -    medial lateral epicondylitis (swelling of tendons), bicipital tendinitis (inflammation of the upper biceps tendon), triceps tendinitis, subluxation (partial dislocation) of ulnar nerve, ulnar neuropathy (nerve damage), and changes suggestive of carpal tunnel syndrome in the right elbow.

   [122] This summary is taken from Dr Tomlinson’s supplementary report: Joint Tender Bundle: Tab C2, pages 147–8.

   [123] Transcript, Day 2, page 35, line 13 to page 36, line 11.

10. Within the ICF framework, these are impairments:

    -    left knee: at the level of body structure, of a musculoskeletal structure related to movement, being to a joint, and at the level of body function, of a function of the joints and bones, being the mobility of a joint, and of functions related to the sensation of pain, being pain in a body part (joint);

    - left ankle: at the level of body structure, of a musculoskeletal structure related to movement, being to a joint and ligament,[124] and at the level of body function, of a function of the joints and bones, being the mobility of a joint, and of functions related to the sensation of pain in a body part (joint);

    -    left wrist: at the level of body structure, of a musculoskeletal structure related to movement, being to a joint, and at the level of body function, of a function of the joints and bones, being the mobility of a joint, and of functions related to the sensation of pain in a body part (joint);

    -    right and left shoulder: at the level of body structure, of a musculoskeletal structure related to movement, being to a joint, muscle,[125] ligament, and bursae,[126] and at the level of body function, of a function of the joints and bones, being the mobility of a joint, and of functions related to the sensation of pain in a body part (joint);

    -    right hip: at the level of body structure, of a musculoskeletal structure related to movement, being to a joint and bursae, and at the level of body function, of a function of the joints and bones, being the mobility of a joint, and of functions related to the sensation of pain in body part (joint);

    -    right elbow: at the level of body structure, of a musculoskeletal structure related to movement, being to a joint, muscle and ligament and at the level of body function, of a function of the joints and bones, being the mobility of a joint, and of functions related to the sensation of pain.

    [124] ICF s7703.

    [125] ICF s7702.

    [126] ICF s7703.

11. Each of the above are, relevantly, physical, or sensory (pain) impairments for the purposes of s 24(1)(a).

    Summary with respect to s 24(1)(a)

12. For the reasons set out above I am satisfied that the Applicant meets the access criteria contained in s 24(1)(a) based on:

    i.physical impairments of the structure and function of his respiratory system which are derivative of Asthma;

    ii.physical impairments of the structure and function of his digestive system which are attributable to GORD and a related sensory impairment of pain functions;

    iii.impairments of specific mental functions that are attributable to a psychosocial disability; and

    iv.physical impairments of the structure and function of his lumbar spine, and the joints of both shoulders, left knee, left wrist, left ankle, right hip, right elbow and associated nerves and a related sensory impairment of pain functions.

13. These impairments will therefore be considered against the access criteria contain in s 24(1)(b).

14. I am not satisfied that the Applicant meets the access criteria contained in s 24(1)(a) based on his asserted:

    i.alcohol dependence;

    ii.cigarette smoking;

    iii.sleep disturbance that is independent of his psychosocial disability; or

    iv.medical conditions (Ventricular Ectopic, Hypertension, Premature Pulse and Diabetes Type 2).

15. These matters will therefore not be considered further.

    Permanence

16. Section 24(1)(b) requires the Tribunal to be positively satisfied on the evidence before it[127] that the Applicant’s impairment or impairments are, or are likely to be, permanent. Rules 5.4 to 5.7 of the NDIS (Becoming a Participant) Rules prescribe the circumstances in which that will be the case. In this respect Rule 5.4 provides that an impairment is, or is likely to be, permanent for the purposes of s 24(1)(b) only if there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment. However, that Rule is to be interpreted in accordance with what is prescribed in Rules 5.5 to 5.7.

    [127] FBJV and National Disability Insurance Agency [2021] AATA 913 at [123].

17. In Davis, the Court held that the term ’permanent impairment’ in s 24(1)(b) means an impairment which is of an enduring nature even if its impact may fluctuate or there are prospects of improvement.[128] It held, further to this, that the term “remedy” in Rule 5.4 must be understood to mean more than to just relieve and improve, but rather as something approaching the removal or cure of the impairment.[129] 

    [128] Davis at [86].

    [129] Davis at [136].

18. The Agency relies upon two first instance decisions of the Tribunal, differently constituted, decided before Davis, as authority for the proposition that the s 24(1)(b) permanency requirement will not be met if there are treatments which are likely to remedy the impairment, but the Applicant has not availed himself of those treatments.[130] The principle articulated in those cases must now be considered in light of the interpretation of the word ‘remedy’ given in Davis, and also of course against the considerations set out in Rules 5.5 to 5.7.

    [130] Holmes and National Disability Insurance Agency [2017] AATA 2790 at [59]; Sheldon and National Disability Insurance Agency [2018] AATA 2560 at [55] to [56].

    Impairment of the structure and function of the respiratory system

19. The evidence in relation to the Applicant’s Asthma establishes that he has lived with this condition since 2021, and that he is prescribed bronchodilator medication for the management of this condition. There is no evidence before me as to whether this condition is intermittent (seasonal) or persistent, or in relation to the effectiveness of the bronchodilator medication in managing this condition. Nor is there any evidence in relation to any other treatments that have been attempted, or which are available in relation to this condition. On this state of the evidence, I cannot be satisfied having regard to the requirements of Rule 5.4 that the permanency requirement is met in relation to the impairments that are derivative of asthma. These impairments will therefore not be further considered.

    Impairment of the structure and function of the digestive system

20. The evidence in relation to the Applicant’s GORD establishes that he has lived with this condition since 2017 and that he is prescribed medication (Pantoprazole) as treatment for this condition. The Applicant’s own evidence is to the effect that this condition is managed provided ‘he watches what he eats and drinks’. Other than that, there is no evidence before me as to the effectiveness of that medication in the management of this condition, or in relation to any other treatments that have been attempted, or which are available in relation to this condition. Having regard to this state of the evidence, I cannot be satisfied having regard to the requirements of Rule 5.4 that the permanency requirement is met in relation to the impairments that are derivative GORD. These impairments will therefore not be further considered.

    Impairments of specific mental functions that are attributable to a psychosocial disability

21. Dr Black’s evidence, considered together with that of Dr Nagesh, establishes that the Applicant has been living with a mood disorder (depression) for most of his adult life. He was treated for this condition by Dr Nagesh since February 1997,[131] and he continues to be treated with this condition by Dr Black some 27 years later.[132] 

    [131] Joint Tender Bundle, Tab B16, page 98.

    [132] Joint Tender Bundle, Tab C3.

22. In his January 2011 report, Dr Nagesh outlines the treatment he had prescribed and provided to the Applicant up to that time for Dysthymic Disorder, which was two antidepressant medications and psychological therapy based on cognitive behavioural principles.[133] Dr Nagesh states that the Applicant had been adherent to prescribed medication, but for the period of 10 years up to the date of his report had ‘continued to remain depressed at baseline’. He later states that ‘despite assertive follow-up, additional supportive measures and review of medications,’ the Applicant’s depression has ‘remained treatment resistant’.

    [133] Joint Tender Bundle, Tab B16, page 100.

23. Dr Nagesh also states in his report that the Applicant had experienced over the 10-year period up to the date of that report recurring episodes of Major Depressive Disorder which had been triggered by a variety of adverse life events. He outlines successful lifestyle changes that the Applicant had taken to combat that disease including exercise, participation in a club, and reducing his alcohol dependence. However, he states that the Applicant relapsed into recurring Major Depression due to a relationship breakdown and the back injury he sustained in 2000 which inhibited him from exercising and attending to his self-care. 

24. With respect to the Applicant’s future further treatment options at that time Dr Nagesh states his intention to recommend to the Applicant’s General Practitioner that he be referred to a psychologist under the Mental Health Care Initiatives Program to undertake a structured cognitive behavioural therapy program which incorporated mindfulness strategies.  However, Dr Nagesh goes on to state that:

    [A]ccent [is] on damage control/harm minimisation, given [the Applicant’s] ongoing struggle with his Depression and the vicious circle between that and Chronic Pain Disorder, it is highly unlikely that he would attain any higher level of rehabilitation on a sustained basis given all of the evidence so far.

    …

    [The Applicant] has continued to suffer from his background Dysthymia for years together.  He has suffered with superimposing Major Depressive episodes from time to time in response to various stressors including the one of his current backache with consequent limitations.

    …

    The main triggers/factors for [the Applicant’s] relapses/recurrences are to do with a) his recurrent backache for which there is no easy solution and, b) his vulnerability to the effects of various stressors and life change events over which he has limited control if any.  Given that he had already suffered multiple episodes of Depression, it is conceivable that he will always remain vulnerable to future exacerbations with/without/despite the treatment.

    [F]or all practical purposes therefore he should be considered as being totally and permanently disabled at least from a psychiatric point of view.  This opinion is based on my longitudinal knowledge of his situation stretching over the course of the last 14 years …

1. Ms Dwyer concluded that the Applicant requires assistance with self-care because of his disability in the form of assistive technology, being a long-handled shoe horn and reacher for dressing, toe wiper, static shower chair with arms and grab rails in the shower and non-slip mat for showering and a falls alarm.

2. In response to targeted questions from the Agency Ms Dwyer provided the following additional observations and opinion in relation to the self-care life activity area:

   -    The Applicant has reduction in self-care as a consequence of his reported dizziness resulting in reduced balance, reduced capacity for bending and deconditioning;

   -    The Applicant currently conducts self-care activities without assistive equipment and technology but struggles and requires the assistive technology and equipment she has recommended;

   -    The Applicant can groom and feed himself without restriction;

   -    The Applicant’s lower back pain, right hip limit his ability to fully bend and perform activities in sustained forward flexion; squatting, kneeling and crawling (occasionally reaching his feet; low level cleaning e.g. shower base; vacuuming under this bed; skirting boards; cupboards; oven; weeding; lifting items greater than 3kg from ground level);

   -    The Applicant’s ability to twist is impacted by his decreased knee and ankle stability and lumbar condition, such as turning a shopping trolley;

   -    The Applicant’s restrictions on lifting and carrying impact on his ability to handle heavier shopping bags; life his mattress to apply the fitted sheet or turn the mattress, if and carry a full washing basket;

   -    The Applicant’s shoulder conditions impact on his ability to lift items above his head height and sustain overhead reaching activities e.g. hanging wet sheets and towels on overhead clothesline; conducting high level cleaning; retrieving items from top shelves of supermarket, cleaning windows;

   -    The Applicant has difficulty with prolonged standing due to his deconditioning and pain through his right hip, left knee, left ankle and lower back. This impacts on garden and cleaning activities of vacuuming and mopping, cooking and dishwashing; shopping; community access and leisure pursuits;

   -    The Applicant does not have the capacity to clean his house in its entirety as a consequence of his reduced standing tolerance, reduced capacity for bending and low-level postures; reduced reaching capacity; reduced grip strength; reduced capacity of his left wrist for compressive forces and shortness of breath with prolonged activity. The Applicant has been unable to maintain his garden due to reduced standing tolerance and difficulties mobilising outdoors, impairments of squatting and kneeling, reaching and reduced left wrist compression (e.g. digging). As a consequence of his inability to maintain the home, the Applicant is reportedly facing eviction and homelessness (noting he has four dogs which precludes many rental properties). Homelessness will significantly impact on the Applicant’s mental health and result in greater need for disability supports;

   -    The Applicant does not require anyone prompting him to complete these tasks but requires physical assistance by way of regular house cleaning, regular garden maintenance and aids;

   -    The Applicant could increase his functional capacity by using long-handled aids but his shortness of breath, reduced standing tolerance and deconditioning are also impacting his engagement along with his depression. The Applicant requires assistance and input to use the recommended equipment, employ activity pacing and planning strategies as a consequence of his depressive symptoms.

3. I asked Ms Dwyer if there were any cleaning aids that would enable the Applicant to clean his home independently without the need for a cleaner. This resulted in the following exchange:

   [referring to the Applicant’s statement he was unable to clean the sink due to wrist pain]

   From an occupational therapy perspective, is there anything that you could recommend for him to do that would enable him to do that independently without necessarily having to get a cleaner? ---  There are hand-held scrubbers, so light weight scrubbers that can be used, and even hand-held steam cleaners that can are used to help, say, clean the sink. There are … long-handled scrubber which … has a rechargeable battery with a rotating head that can is used for low level cleaning of showers, for example.  There are robotic vacuums that can quite effectively clean floor surfaces, provided there aren’t too many obstacles … So, yes, there certainly are some battery-operated powered equipment that can be used to reduce forces associated with cleaning

   … those items of equipment that you adverted to, where could you buy those, and if you’re able to indicate that the cost might be for a reasonably effective version? --- … around taps … a Rubbermaid … I think they are around $30. … handheld steam cleaners with attachments … between two and $350 … long handled scrubber… currently about $350, that may be with or without a battery.

   And would you characterise them as generally available aids, or specialist aids?  --- Generally available I characterise them

   And is that sort of equipment, also equipment that you would be able to use in the shower for similar reasons? --- That’s correct, yes.[186]

   [186] Transcript, Day 1, page 27, lines 2–32.

4. I invited the Applicant to respond to this evidence, and he did so as follows:

   [U]nfortunately … we use bore water which is full of calcium and all sorts of nasty things, and … when I was think of the sink example, I actually meant to say drain board which is covered in calcium, and the only way to get it off is with a wire brush, or a steel scrunchy, which is something I can’t do.  And it’s the same around the base of the shower.  I can’t reach it properly without falling over, but I can’t bend and twist and use a scrunchy like that there.  I mean, it has to be a steel wool scrunchy because the calcium is that hard.

   Its terrible stuff.  In fact, in a place I was staying in a few years ago, one of the guys tried to get the calcium off one of the showers using his work boots, a steel crunchy and a hydrochloric acid, and it didn’t work.  That’s the sort of level of cleaning I can’t do, and that what I was referring to about with the bottom of the shower and the drain board.  It’s – the water is just so hard it’s terrible.[187]

   [187] Transcript, Day 1, page 28, lines 5–20.

5. In response to the Applicant’s comment Ms Dwyer conceded that the head of the equipment she had referred to were unlikely to be as effective as steel wool would be.[188]

   [188] Transcript, Day 1, page 28, lines 22–9.

6. The self-care life activity area encompasses a broad range of activities necessary for the maintenance of personal hygiene, personal grooming, nutrition, and domestic care and management, among other things. It is necessary for the Applicant to establish that he has substantially reduced functional capacity for self-care having regard to the whole of that domain. However, this does not mean that he must establish that he has substantially reduced functional capacity with respect to every element of the domain. What must be shown is that what the Applicant cannot do in this domain is substantial (or to use a synonym ‘considerable’) even though he may be able to do some activities within the domain independently or in a modified way using commonly available assistive devices. In this respect, to recall the words of the Court in Mulligan, the Applicant bears no onus of establishing his impairments are more serious than anybody else’s.

7. In this case, the evidence establishes that the Applicant is substantially independent in relation to his personal hygiene, grooming and nutrition. It also establishes that his functional capacity could be improved if he were to obtain some commonly available aids such as a sock donner and Reacher. 

8. The ultimate issue in this case is whether the Applicant has the functional capacity to perform domestic cleaning and yard maintenance, and if the answer to that is “no”, whether this is sufficient to constitute substantially reduced capacity for self-care having regard to the self-care life activity area overall. 

9. There was no serious challenge to the Applicant’s contention that he is unable to carry out basic domestic cleaning and yard maintenance due to the impairments that are derivative of his musculoskeletal conditions, pain and amotivation. In any event I am satisfied on Ms Dwyer’s evidence that this is the case.

10. I did test with Ms Dwyer whether there were commonly available assistance devices that would enable the Applicant to carry out domestic cleaning despite his impairments.  Ultimately, her evidence was to the effect that those commonly available items that might assist with cleaning would not be sufficient for the type of cleaning the Applicant described as being necessary because of the bore water with which his home is supplied. I was not taken to any evidence of commonly available equipment or technology that would enable the Applicant to maintain his lawns and gardens.

11. I understand the Agency’s position to be essentially, that notwithstanding the reduced functional capacity the Applicant has in relation to domestic cleaning and yard maintenance, this is not sufficient to constitute substantially reduced functional capacity in this life activity area overall.  I do not accept that submission. What is ultimately in issue here is the Applicant’s ability to maintain his home in an acceptable state of cleanliness and yard tidiness. Should he continue to fail to do so, there is a risk that this would be found to be a breach of his residential tenancy agreement, resulting is eviction action being taken.  The reduction in functional impairment is thus substantial, or considerable, enough to have that potential outcome. Having regard to the risks associated with instable housing and homelessness, which I discuss further following, that realistic risk is sufficient in my view to constitute a substantial functional impairment in the self-care life activity area.

12. For the purposes of Rule 5.8, I am satisfied that the Applicant cannot effectively perform domestic cleaning and yard maintenance independently or by using commonly available aids. I am satisfied that he usually requires assistance to do so.

    Self-management

13. The ‘Applying to the NDIS’ operational guideline describes this prescribed life activity area as:

    -    How you organise your life.  We consider how you plan, make decisions, and look after yourself.  This might include day-to-day tasks at home, how you solve problems, or manage your money.  We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.

14. I have found that the Applicant lives with impairments to his specific mental functions related to temperament and personality, energy and drive, emotion, attention, and memory. The s 24(1)(c) issue is whether those impairments result in the Applicant having substantially reduced functional capacity for self-management.

15. In his October 2023 report Dr Black states with respect to this life activity area that the Applicant’s Major Depressive Disorder affects his cognitive ability to organise his life and make decisions, and that his physical limitations compound these difficulties.[189]

    [189] Joint Tender Bundle, Tab C4, pages 199-200.

16. In her report, Ms Dwyer considers under this life activity area several functions that I have considered more appositively dealt with under the self-care life activity area. I will not deal again with those functions here (food preparation, dishwashing, cleaning, laundry, bed-making, shopping, rubbish bins, pet care, garden maintenance, general maintenance, and work).  

17. What remains are Ms Dwyer’s record of the Applicant’s self-report and her own observations in relation to the following functions:

    5.2      Planning, Sequencing and Organising

    Raymond reported he was anxious as was not told my assessment would take 3 hours.  He reported anxiety and uncertainty planning for his medication and food intake around the assessment but achieved this with guidance.  He has difficulty organising appointments (below).

    5.3      Decision making

    Raymond reported and demonstrated mild decision-making impairment related to his anxiety and depression.

    5.4      Health management

    Raymond he independently manages his health without any assistance although he indicated he has difficulty organising specialist and doctor’s appointments finding them overwhelming and “not knowing where to start”  As an example he has a cardiologist appointment and was told he would not be seen as he has only had one COVID vaccination and he does not know how to rectify this, which is linked to his depression.  He has not managed to successfully use the CPAP for his obstructive sleep apnoea.

    He can recall if he has missed his medication due to the lack of effects e.g. insomnia anti-depressant.

    5.5      Financial management

    Raymond reported he uses a calendar for reminders and writes every bill on this to ensure he does not miss payment.

    Raymond’s self-management skills are impacted by Raymond’s mental health.

18. Ms Dwyer concluded that the Applicant requires assistance with self-management due to his disability in the form of assistive technology and assistance from other persons as follows:

    Raymond requires apps and calendar/diaries to aid his self-management and guidance with problem solving and decision making surrounding his health due to his depression.[190]

    [190] Joint Tender Bundle, Tab C3, page 168.

19. In her oral evidence, in response to a question from counsel for the Agency about this recommendation, Mr Dwyer stated that the ‘apps and calendar/diaries’ that would aid the Applicant’s self-management were ‘commonly used items readily available to the general public’ not ‘disability specific apps or technologies’ that require prescription.[191]

    [191] Transcript, Day 1, page 22, lines 31–41.

20. In response to the Agency’s targeted questions, Ms Dwyer made the following further observations in relation to the Applicant’s capacity for self-management:

    Based on Raymond’s feedback and my observations he is able to make personal decisions and solve problems but with some difficulty if overwhelmed or if his depression is unmanaged ….

    Raymond is able to make and attend appointments however he has some issues with initiating these … He was aware of my appointment and makes calendar notes of appointments that are made for him and was ready on time, but noted he has difficulty problem solving the current issue around the cardiology appointment.  This relates to his depression,

    Yes Raymond has insight into his ability to make appropriate decisions.[192]

    [192] Joint Tender Bundle, Tab C3, pages 183-4.

21. On the evidence before me, I am satisfied that the Applicant’s impairments attributable to his psychosocial disability do have some impact on his functional capacity in the self-management life activity area. Specifically, they result in some amotivation and reduced self-efficacy. However, that should not be overstated in a context where the Applicant has recently demonstrated motivation and self-efficacy in relation to obtaining and maintaining a part-time volunteer role with a counselling agency, which involves the provision of telephone counselling to others in relation to their life stressors. He has also capably initiated and represented himself in this administrative review proceeding. Additionally, in the days leading up to the hearing he has demonstrated capacity to attend a General Practitioner to obtain a medical certificate in relation to a recent back injury and obtained a referral for specialist spine investigation. This evidences an instrumental capacity that is inconsistent with him being unable to obtain a follow-up COVID vaccination.

22. For the purposes of Rule 5.8, I am therefore satisfied that the Applicant can effectively perform self-management tasks and that he usually does not require assistance from other people to do so. He already utilises a memory aid (calendar) and on Ms Dwyer’s evidence may benefit from additional memory aids, but these are commonly used items, not specialist disability-related assistive technologies as contemplated by Rule 5.8(a).

    Summary with respect to s 24(1)(c)

    I have not found that the Applicant experiences substantially reduced functional capacity because of his permanent impairments in any of the life activity areas specified by s 24(1)(c).

    Social and economic participation

23. The NDIS Access Guidelines describe this disability requirement in the following way:

    -    Then, we look at how your impairments affect your ability to work, study or take part in social life.  This means your permanent impairments affect how you can keep job, contribute to your community, or join social activities.  We get this information from your NDIS application.

    We look at your ability to do things like:

    ·Find and keep a job, or start your own business

    ·Study

    ·Spend and save money

    ·Play sport

    ·Go to the movies

    ·Volunteer

    ·Travel

    It doesn’t matter how much your ability to work, study or socialise is affected by your impairment.  It only needs to affect your social or work life way for you to meet the criteria.

24. I am satisfied that the Applicant’s permanent impairments have a seriously adverse impact on his social and economic participation in the self-care life activity area. Most significantly, he is unable to clean and maintain his home and yard and, because of this, is at risk of being evicted from his social housing, which is likely to have further adverse consequential impacts in terms of his health, safety and wellbeing due to housing instability or homelessness. I accept Ms Dwyer’s evidence in this respect.

25. While the Applicant conceded under questioning from counsel for the Agency that he had not yet received an eviction notice, there was no challenge to his contention that he had received repeated warnings from his social housing provider that his residential tenancy agreement would be terminated if he continued to fail to clean and maintain his home and yard to an acceptable standard.  The Applicant described the interior of his home as ‘filthy’. The state of uncleanliness and the interior of the home and the seriously unkempt condition of the yard are confirmed by Ms Dwyer in her report, and in respect of the yard, is depicted in the photographs that are incorporated into that report.  I am satisfied on this basis that the risk of the Applicant losing his social housing due to the permanent impairments I have found is real.

26. I consider stable housing to be a fundamental foundation for most social and economic life.

    Life-time support

27. The NDIS Operational Guidelines describe this disability requirement in the following way:

    -    You must be likely to need support under the NDIS for your whole life.

    NDIS supports are investments that help you build or maintain your functional capacity and independence and help you work, study or take part in social life.

    Even if your needs go up and down over time, or happen episodically, we may still consider its likely you’ll need lifetime support under the NDIS.

    We consider your overall situation to answer this question.

    When we decide if you’ll likely need support under the NDIS for your whole life, we consider:

    ·Your life circumstances

    ·The nature of your long-term support needs

    ·Whether your needs could be best met by the NDIS, or by other government or community services.

    For example, you may have an impairment which is caused by a chronic health condition.  Many chronic health conditions are most effectively managed or remedied through medical management through the health system

    If this is the case we may decide that you don’t have a lifetime need for support under the NDIS.

28. I have found that the Applicant’s impairments of specific mental function attributable to his psychosocial disability are permanent. There is no suggestion in the evidence that the Applicant’s psychosocial disability is most appropriately supported in State-based acute or sub-acute (rehabilitation) in-patient mental health care, or under a State-based community mental health program. There is no evidence of any such program being available to provide the support the Applicant requires due to his functional impairments in the self-care domain.

1. I have also found that the Applicant’s impairments of body structure and function derivative of his musculoskeletal conditions are permanent (with one exception) and degenerative. The evidence establishes that the Applicant may benefit from periodic anti-inflammatory injections, and physiotherapy, which are available, or potentially available, through the health system.  At some point in the future, he may also benefit from a hip replacement which would be obtained from the health system. However, these interventions are not alternative forms of support for the support the Applicant requires in relation to his functional impairments in the self-care domain that are derivative of these conditions.

2. The Agency submitted in relation to the early intervention requirement that the Applicant’s needs would be best met through the Aged Care system.  It was suggested that he may be eligible for “early access” to aged care. I do not accept that submission. A person who is eligible for the NDIS should not be obliged to seek access to another government program for which they are not yet eligible on a discretionary basis. There is no satisfactory evidence before me that there is any likelihood that the Applicant would obtain early access to aged care support if he did apply.

3. For the foregoing reasons I am satisfied that the Applicant, at this point in time, is likely to require NDIS support for his lifetime.

   Summary with respect to the disability requirement

4. For the reasons set out above I am satisfied that the Applicant meets the disability requirement for the NDIS because he has substantially reduced functional capacity for self-care that results from permanent impairments of body structure and function derivative of his spine, hip, shoulder, elbow, ankle/foot and wrist conditions and permanent impairment of specific mental functions that are attributable to his psychosocial disability. These impairments have a seriously adverse impact on the Applicant’s social and economic participation in the self-care life activity area. Most significantly, he is unable to clean and maintain his home and yard and, because of this, is at risk of being evicted from his social housing, which is likely to have further adverse consequential impacts in terms of his health, safety, and wellbeing due to housing instability or homelessness. The Applicant is likely to require support under the NDIS in relation to significant aspects of his life-care for the rest of his life.

   Early intervention requirements

5. I have found that the Applicant meets the disability requirements for access to the NDIS. It is therefore unnecessary for me to consider if he meets the early intervention requirements.

   Conclusion

6. For the foregoing reasons I am satisfied that the Applicant meets the disability requirements for access to the NDIS. The reviewable decision is not correct in this respect. Pursuant to s 43(3) of the AAT Act, in disposition of this review, I will therefore set aside the decision under review and substitute for it a decision that the Applicant meets the access criteria in s 21(1)(c) of the NDIS Act on the basis that he meets the age, residence and disability requirements for access to the NDIS.

I certify that the preceding 250 (two hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Member P French

.......................[sgd].........................

Associate

Dated: 5 August 2024

Date(s) of hearing:	3 and 7 June 2024 by Video
Applicant:	Self-represented
Counsel for the Respondent:	Domenic Lipari
Solicitors for the Respondent:	Mr Mark Henry, Maddocks