XMFS and National Disability Insurance Agency

[2022] AATA 568

XMFS and National Disability Insurance Agency [2022] AATA 568 (30 March 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2019/7945

Re:XMFS

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:30 March 2022

Place:Sydney

The decision under review is affirmed.

...............................[SGD].........................................

Dr L Bygrave, Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE AGENCY – access to the scheme – whether applicant meets the disability or early intervention requirements – multiple conditions including lumbar spondylosis with bilateral foraminal stenosis, degenerative disc disease, facet joint arthritis, chronic pain syndrome, adjustment disorder with depressed mood, severe obstructive sleep apnoea, type 2 diabetes mellitus, morbid obesity, asthma, chronic obstructive pulmonary disease – whether impairments are permanent – whether impairments result in substantially reduced functional capacity – whether provision of early intervention supports is likely to reduce the applicant’s future needs for supports in relation to disability – decision under review affirmed

LEGISLATION

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 21-25, 209

CASES

FBJV and NDIA [2021] AATA 913

Madelaine and NDIA [2020] AATA 4025

Mulligan v National Disability Insurance Agency [2015] FCA 544

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12)

Operational Guideline – Access to the NDIS

REASONS FOR DECISION

Dr L Bygrave, Member

30 March 2022

INTRODUCTION

1. The Applicant is a 59-year-old female who has made an application to become a participant in the National Disability Insurance Scheme (the NDIS).

2. On 6 September 2019, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the NDIA) determined the Applicant did not meet the access criteria in sections 21–25 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act). The Applicant subsequently requested an internal review and the NDIA affirmed the decision on 15 November 2019 (the internal review decision).

3. On 30 November 2019, the Applicant applied to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.

4. The matter was heard in Sydney on 6–8 December 2021 with the parties and witnesses participating via videoconference. The Applicant was represented at the hearing by her son; she attended the hearing and gave oral evidence with the support of a disability advocate.

   RELEVANT LEGISLATION

5. The objects and principles set out in the Act provide guidance on interpreting the statute.

6. The objects of the Act listed in section 3 include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities and facilitating the development of a nationally consistent approach to the access to supports for people with disability. Paragraph 3(3)(b) of the Act further states that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

7. The general principles guiding actions under the Act are contained in section 4 and include affirming that people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.

   The access criteria

8. Subsection 21(1) of the Act summarises the access criteria to become a participant in the NDIS as follows:

   (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).

9. The Applicant satisfies the age requirements in section 22 and the residence requirements in section 23 of the Act: consequently, the sole issue for determination by the Tribunal is whether the Applicant satisfies the access criteria in either section 24 of the Act (the disability requirements) or section 25 of the Act (the early intervention requirements).

10. Section 24 of the Act states the criteria to meet the 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 to one or more impairments attributable to a psychiatric condition; and

    (b)the impairment or impairments are, or are likely to be, permanent; and

    (c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, 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.

11. The early intervention requirements are stipulated in section 25 of the Act:

    (1)A person meets the early intervention requirements if:

    (a)the person:

    (i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

    (ii)has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

    (iii)is a child who has developmental delay; and

    (b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and

    (c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

    (i)mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or

    (ii)preventing the deterioration of such functional capacity; or

    (iii)improving such functional capacity; or

    (iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.

    Note:In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

    (2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

    (3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

    (a)as part of a universal service obligation; or

    (b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability. [emphasis in original]

12. The Minister may also make rules prescribing matters under subsection 209(1) of the Act. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Participant Rules), which form part of the legislation.

13. Operational Guidelines written by the CEO of the NDIA also assist staff to make decisions in accordance with the Act. I note that Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[1] The Operational Guideline relevant to this matter is Operational Guideline – Access to the NDIS (the Access Operational Guideline): chapter 8 is titled the ‘The disability requirements’ and chapter 9 is titled ‘Early intervention requirements’.

    [1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.

    EVIDENCE

14. The evidence before the Tribunal comprises:

    ·statements written by the Applicant and her oral evidence at the hearing;

    ·written reports and oral evidence from medical practitioners who have treated and/or assessed the Applicant; and

    ·the written report and oral evidence from an occupational therapist.

    The Applicant’s evidence

15. The following evidence is from the Applicant’s written statements dated 4 April 2020 and 11 November 2021, and her oral evidence to the Tribunal on 6, 7 and 8 December 2021.

16. The Applicant lives alone with her dog in a caravan with a connected annex in a caravan village that is situated in a small regional town in New South Wales (NSW). She owns the caravan and annex but is required to pay rent and utilities to the owners of the caravan village. She is currently in receipt of the disability support pension.

17. The Applicant has three adult sons. The Applicant’s youngest son lives approximately 45 minutes’ drive from her home and visits once a week to assist her with chores such as putting out the bins and walking the dog. Her two older sons live interstate: one of these sons assists her with complex administrative tasks and represented her at the Tribunal hearing. The Applicant’s elderly parents live 15 minutes’ drive from her home but are unable to provide her with ongoing support due to their own ‘complex health issues’.[2] The Applicant was in a long-term relationship that ended in 2019 although she continues to have limited contact with her ex-partner. 

    [2] Exhibit A16.

18. The Applicant was employed as a customer service officer until she retired due to medical reasons in 2016. She also operated a karaoke and DJ business doing regular gigs until 2015 and conducted a weekly community radio segment until 2018. She ceased these activities due to her ‘deteriorating’ disabilities.[3]

    [3] Exhibit A15.

19. Consistent with reports from her treating general practitioner, the Applicant stated that her current medical conditions are:

    Primary conditions

    -    Lumbar spondylosis with bilateral foraminal stenosis, degenerative disc disease, and facet joint arthritis

    -    Chronic pain syndrome

    -    Adjustment disorder with depressed mood

    -    Severe obstructive sleep apnoea

    Secondary conditions

    -    Type 2 diabetes mellitus

    -    Morbid obesity

    -    Asthma and Chronic Obstructive Pulmonary Disease (COPD).[4]

    [4] Applicant’s Statement of Position, 12 November 2021, paragraph 5.

20. The Applicant has undertaken treatment for these conditions. She sleeps using a ‘CPAP [continuous positive airway pressure] machine’ for her obstructive sleep apnoea although she has difficulties using the machine due to experiencing pain when she lies on her back. She has had total knee replacement surgery in her right and left knees. She is seeking to reduce her weight following a diagnosis of diabetes in February 2021. She takes opioid medication to treat her chronic pain and commenced using CBD (cannabidiol) oil in August 2021, which ‘doesn’t take away the pain, it just helps [her] deal with the pain differently’.[5] She takes medication to treat her depression and she visited a psychologist briefly in 2018. The Applicant confirmed that she has not seen a pain specialist but said that it was not possible for her to travel for two hours from her home to the large regional town where the nearest pain specialist clinic is located. She does some strengthening exercises for her knees and back seated in her lounge chair.

    [5] Exhibit A16.

21. Despite treatment, the Applicant continues to experience chronic pain. At the hearing, the Applicant said her back causes her the ‘greatest pain’ which she described as:

    …sciatica which runs down the entirety of my left leg…

    It’s a real nerve pain, it’s like a spasm, like a spasm of immense pain and then what will happen is it will start to, I call it buzz, like it’ll be tingling down my leg and these spasms of pain.

    It’s like an electric – if you can imagine, pins and needles type pain and it runs right down my left leg…through my calf.

    It's just like a nerve thing, it’s awful… I can feel it from my back all the way through … my back end to my buttock…and down my left leg.[6]

    [6] Oral evidence of the Applicant, 6 December 2021.

22. In her written statement dated 11 November 2021, the Applicant described the debilitating effect of pain on her capacity to undertake activities of daily living such as household tasks and self-care, and to go out in public. She explained that her situation is ‘a “catch 22” because I want to be able to do things for myself, but I am scared of overexerting my body even a little bit because it definitely makes the pain worse’.[7]

    [7] Exhibit A16.

23. The Applicant described the fluctuating nature of her pain and her functional capacity in terms of ‘good days’ and ‘bad days’.[8] In her oral evidence to the Tribunal, she said a ‘good day’:

    …is a day where…my pain is manageable and…everything goes to plan. You know, I don’t drop anything stupid, I don’t trip… Usually it’s a day when I haven’t done…a lot because that makes a difference. Then there’s also the mental part, depends what my mood is and that is dependent on how I am feeling...

    I would…generally have no problem showering and dressing, and I’d be comfortable…

    I would take [the mobility scooter] out of the caravan park to the park out the back and I may take the dog with me out there, she likes that… It’s a little bit scary but yes, I enjoy that a lot… It’s good, it makes me feel a lot better getting out of the caravan park…

    On a good day… I can cook myself some eggs like in a fry pan…with toast and stuff like that…[9]

    [8] Exhibit A16.

    [9] Oral evidence of the Applicant, 6 December 2021.

24. In contrast, the Applicant described a ‘bad day’ as:

    …hard… there’s days I’ll get up and just getting down to the bathroom is…a major feat…. And they’re the days where…even taking the dog out…just letting her out is really, really hard…. They’re the days where I have to take extra pain medication more than normal… like during the day and a lot of the time that will make me sleepy but I am in so much pain… I am not getting to sleep anyway but I will be miserable…

    I won’t shower on those days… I’ll stay in my pyjamas…

    I’ll...[eat] a piece of fruit or a yoghurt on that day, something where I don’t have to do much preparation… I’ll watch TV… either in bed or in my chair depend[ing] where I am most comfortable… And all I do then is just sit there or lie there.[10]

    [10] Oral evidence of the Applicant, 6 December 2021.

25. The Applicant said she experienced ‘bad days’ about ‘a third of the time’; on average, two to three days a week.[11] She also said she has ‘really, really bad days’ when the ‘bad days have gotten on top of [her] and [her] mental state is worse than normal’.[12]

    [11] Oral evidence of the Applicant, 6 December 2021.

    [12] Oral evidence of the Applicant, 6 December 2021. 

26. The Applicant said she spends her days watching television and reading books. She can shower independently using a shower stool and grab-rails, and can dress independently (albeit with difficulty). When possible, she attends a hairdresser to get her hair washed due to difficulty washing her hair herself. She eats mostly pre-cooked frozen meals or food that requires minimal preparation.

27. The Applicant mobilises around her caravan and annex with the aid of a walking stick; she stated that she ‘wouldn’t walk across the road’ without a walking stick and uses a four-wheel walker or mobility scooter to mobilise outside her caravan and annex.[13] The Applicant holds an unrestricted driver license that was renewed following a medical assessment in July 2021. She is able to drive independently to her parent’s home or to her general practitioner (approximately 20 minutes’ drive from her home) and can get in and out of her car using a ‘handybar assistance tool’. However, she told the Tribunal that she does not drive as much since she commenced using CBD oil in August 2021.[14]

    [13] Oral evidence of the Applicant, 7 December 2021.

    [14] Oral evidence of the Applicant, 7 December 2021.

28. The Applicant shops for groceries online using her phone, manages her own finances and pays her bills, and uses a webster pack for her medications. However, she requires the assistance of her son to understand complex documents and administrative processes. The Applicant said she required the support of a disability advocate to type her written statements and to participate in the Tribunal hearing.

29. The Applicant’s current social interactions are limited to her sons and parents, neighbours at the caravan village, occasional caravan village meetings/BBQs (a total of three in the past year), her cleaner who attends weekly to provide domestic assistance, and her disability support advocate. The Applicant said she no longer socialises as she is embarrassed because of her disabilities and weight, and she forgets the names of other people who live in the caravan village.

30. Since January 2019, the Applicant has received domestic assistance comprising two days a week (a total of two and a half hours) for home cleaning and laundry through a Safe and Supported at Home (SASH) package funded by NSW Health as part of an out of hospital care program. A letter from Community Options Australia dated 13 August 2021 noted a SASH package is ‘no longer able to provide the services and hours of care’ required by the Applicant.[15] This contrasts with the NSW Health website that states:

    The role of the Safe and Supported at Home (SASH) package is to support clients with functional impairment/s who are in the process of applying for the National Disability Insurance Scheme (NDIS) or have been deemed ineligible for this scheme.

    SASH packages are available for patients being discharged from hospital who may be at risk of an avoidable admission. They are also available to people who are accessing LHD [local health district] community health or out-patient services. 

    SASH packages are available for 6 weeks but can be repeated depending on the assessed needs of the patient.[16] [emphasis added]

    [15] Exhibit A14.

    [16] See Safe and Supported at Home (SASH) - Out of Hospital Care (nsw.gov.au) accessed on 22 March 2022.

31. The Applicant said she is seeking to access the NDIS to receive support to assist her with housework and attending appointments, and to increase her social interaction.

    Evidence – medical practitioners

32. The following is evidence from medical practitioners who have examined and/or treated the Applicant.

    Dr ‘A’ (general practitioner)

33. Dr ‘A’ has been the Applicant’s general practitioner since March 2010. He has completed medical forms and written detailed reports about the Applicant’s medical conditions on 14 March 2018, 31 May 2018, 4 April 2019, 17 August 2019, 20 August 2019, 2 March 2020, 28 July 2020 and 10 August 2021.  

1. On 10 August 2021, Dr ‘A’ provided an updated report listing each of the Applicant’s primary and secondary medical conditions, his assessment about treatment and the permanency of these conditions, and the impact of these conditions on her functional capacity as follows:

   Primary conditions:

   Lumbar spondylosis with bilateral foraminal stenosis, degenerative disc disease, and facet joint arthritis.

   1.    Permanency: Permanent. Not suitable for surgical intervention, currently treated through pain management. No further appropriate treatment options available that would likely result in marked improvement in symptoms or functional capacity. The current management of [the Applicant’s] back pain is sufficient. [The Applicant’s] significant reduction in functional capacity and mobility due to her condition is unlikely to improve.

   2.    Functional capacity: Substantial reduction in functional capacity to undertake activities related to social interaction, mobility, and self-care due to substantial reduction in physical movement. Unable to walk short distances unassisted, unable to stand for prolonged periods, unable to bend, twist, squat, reach, lift, or other related activities around the house. Difficulty getting to and from medical appointments, social events, and other activities external to residents due to reduced movement and resultant pain. Unable to undertake cleaning duties or prepare moderate meals other than instant meals and light snacks.

   Chronic pain syndrome

   3.    Permanency: Permanent. Multi-factorial and unlikely to reduce in context of lack of further treatment modalities.

   4.    Functional capacity: Generalised significant reduction in functional capacity to undertake activities related to mobility and self-care and ongoing high opiate and neuropathic medication load.

   Adjustment disorder with depressed mood

   5.    Permanency: Permanent, secondary to physical conditions and chronic pain syndrome. Aggravated by high opiate load and need for neuropathic agents which increase cognitive clouding. Improvement in her psychiatric condition is unlikely while the external stresses, namely her chronic and degenerative physical conditions, persist. Given the permanence of these conditions, and the period of impact these have become chronic in nature. It is therefore unlikely psychological conditions will fully remit and will need to remain under management.

   6.    Functional capacity: Difficulty actively engaging in social activities and building new relationships due to combination of psychological conditions, cognitive fog as well as physical discomfort and difficulties with mobility and transport to and from events.

   Severe obstructive sleep apnoea

   7.    Permanency: Permanent. Fully treated as capable via CPAP. [The Applicant] is compliant with treatment. No further treatment options for expected improvement in symptoms or functional capacity.

   8.    Functional capacity: Contributing factors to substantial reduction in functional capacity to undertake activities related to social interaction, mobility, and self-care due to resultant severe somnolence and clouding of thought process, further aggravated by long-term opioid analgesics.

   Secondary conditions:

   Type 2 diabetes mellitus. [The Applicant has adhered] to treatment and a strict dietary regime since being diagnosed, with no effect on reducing BMI. Adds to fatigue.

   Morbid obesity. [The Applicant has had] several unsuccessful attempts with diet treatments, and it is unlikely that this will improve and will therefore continue to be a contributing factor in her significantly reduced functional capacity for mobility and need for neuropathic agents which are renowned for associated weight gain but necessary for pain management, and use of Quetiapine, mood stabilisation which also has significant side-effect of associated weight gain.

   Asthma and COPD. COPD is a progressive disease despite treatment regime and cessation of smoking many years ago (apart from brief recommencement last year during early COVID lockdown, but again ceased). This is complicated by pre-existing lifelong asthma. Each acute severe infection or flareup further reduces residual functional capacity leading to greater impact on oxygeneration and functional capacity, particularly relating to mobility. It is exacerbated by need for opiates which depress respiratory centre and is associated therefore with carbon dioxide retention and reduced oxygenation, which increase somnolence and impair cognition respectively. [The Applicant] is compliant with prescribed medication for the same but this will worsen with time rather than improve.[17]

   [17] Exhibit A13.

2. Dr ‘A’ concluded the report with the opinion that:

   it is imperative to consider the permanence of these conditions and their effect on functional capacity as a combination, in a holistic manner. These conditions are not experienced in isolation of one another, but as a cohesive lived experience by [the Applicant] and negatively impact on the other conditions around them to increase the degree of disability and functional capacity.[18]

   [18] Exhibit A13.

3. The information in this report by Dr ‘A’ also needs to be considered within the context of his earlier reports about the Applicant, particularly in relation to treatments for some of her conditions. On 2 March 2020, Dr ‘A’ provided a comprehensive medical history of the Applicant from 2013. He noted that the Applicant ‘was convinced to retrial the CPAP machine’ in 2019 due to ‘worsening somnolence’ and her ‘symptoms [being] exacerbated with weight gain’.[19] He also stated that she currently (that is, March 2020) ‘has ongoing severe sleep deprivation due to difficulty with tolerance to CPAP machine and this is unlikely to improve’.[20]

   [19] Exhibit A2.

   [20] Exhibit A2.

4. On 28 July 2020, Dr ‘A’ provided a medical report responding to questions from the NDIA stating the following in relation to the Applicant’s conditions:

   ·Morbid obesity: the Applicant’s morbid obesity is a secondary condition ‘caused by her various conditions and diagnoses’; barriers to her achieving significant weight loss are financial (higher cost of healthy food, cost of weight loss medications/ bariatric surgery, cost of access to an exercise program) and psychological (poor motivation, low pain threshold).[21]

   ·COPD: the Applicant has a ‘combination of longstanding asthma upon which COPD (emphysema/chronic airway limitation) has been superimposed due to her history of smoking’; and, in July 2020, treatments included inhaled steroids, a long-acting bronchodilator and smoking cessation.[22] 

   ·Severe obstructive sleep apnoea: the Applicant’s sleep apnoea is associated with ‘daytime somnolence and fatigue’ and is an ‘added aggravating factor in both asthma and COPD’; this condition ‘is complicated by [the Applicant’s] use of strong pain medication which aggravates impact of sleep apnoea’.[23] In July 2020, the Applicant was being ‘more compliant’ in ‘trying the CPAP machine each night’.[24]

   [21] Exhibit A12.

   [22] Exhibit A12.

   [23] Exhibit A12.

   [24] Exhibit A12.

5. In response to summons requests (and included here by way of background), medical records in relation to the Applicant also showed:[25]

   [25] These records are from summons issued to Dr ‘A’, treating specialists of the Applicant, and the local regional hospital.

   ·Medical imaging reports for the Applicant dating from 2014 to 2021.

   ·The Applicant was referred to a physiotherapist for strengthening exercises in January 2018, attended aquatic physiotherapy exercise program once in February 2018 and underwent a physiotherapy osteoarthritis chronic care program assessment regarding her knees in March 2018.[26]

   [26] Exhibit R10, pages 37, 43 and 56.

   ·The Applicant had right knee replacement surgery in May 2019 and left knee replacement surgery in June 2021.[27]

   [27] Exhibit R10, pages 111, 228-441.

   ·An email from a psychologist addressed to Dr ‘A’ dated 31 March 2018 noted the Applicant had been referred for ‘management of her adjustment disorder with depressed mood, anxiety, low self-esteem and persistent pain within a context of polypharmacy use and recent long-term relationship breakdown’.[28] The psychologist observed this ‘is a complex case with multiple physiological, pharmacological and psychological interacting components’, and stated he would begin treating the Applicant.[29]

   [28] Exhibit R10, page 59.

   [29] Exhibit R10, page 59.

   ·On 18 February 2021, Dr ‘A’ completed a comprehensive GP management plan for the Applicant that included the following information in relation to her conditions and treatments:

   oPsychosocial: ‘consider referral [of the Applicant] for counselling / EAP / psychologist’.[30]

   [30] Exhibit R10, page 159.

   oDiabetes mellitus type 2: the Applicant ‘would benefit from visiting diabetic educator’.[31]

   [31] Exhibit R10, page 160.

   ·On 14 July 2021, Dr ‘A’ completed a NSW fitness to drive medical assessment for the Applicant due to her musculo-skeletal disorder (severe arthritis) and sleep apnoea. This assessment stated that the Applicant’s severe arthritis ‘may impact on safe driving’ and no further assessment was required, and the Applicant’s sleep apnoea is ‘well controlled’.[32] The assessment stated the Applicant met the medical criteria for a conditional license, with the only listed condition that she ‘must wear glasses or contact lenses when driving’.[33] This assessment was consistent with Dr ‘A’’s consultation notes dated 14 July 2021 that stated:

   [32] Exhibit R10, pages 458-459.

   [33] Exhibit R10, page 460.

   RMS [Roads and Maritime Services] Medical attended. No concerns with driving last 12/12

   No memory impairment

   No contraindications to driving.[34]

   ·On 11 August 2021, a letter from the Therapeutic Goods Administration provided approval for the Applicant to use ‘CBD100’ for the purpose of ‘chronic pain’.[35]

   ·On 31 August 2021, Dr ‘A’ updated the Applicant’s GP management plan and noted:

   oPsychosocial: the Applicant stated CBD oil made her ‘feel a bit calmer’.[36]

   oDiabetes mellitus type 2: the Applicant has had ‘some education on diabetes’ and they had discussed her diet.[37]

   [34] Exhibit R10, page 491.

   [35] Exhibit R10, page 471.

   [36] Exhibit R10, page 482.

   [37] Exhibit R10, page 483.

6. Dr ‘A’ gave considered and sincere oral evidence to the Tribunal on 7 December 2021 in relation to the Applicant, her medical history and options for treatment.

7. At the hearing, Dr ‘A’ reiterated the interrelationship between the Applicant’s medical conditions. He explained that he has tried to engage the Applicant with supports such as physiotherapy, exercise physiologists, psychologists and specialist reviews but this has been complex due to both the Applicant’s financial capacity to afford these services and the limited availability of services in their area. In terms of treatment options, he said:

   It’s not just the physical component, there is definitely a lot of chronic pain and the negative aspects that come…with chronic pain but there’s also the long-term use of multiple medications and the chronicity of the low mood which I’m sure is a secondary thing but it’s been there for so long, it becomes very difficult to treat.[38]

   [38] Oral evidence of Dr ‘A’, 7 December 2021.

8. In relation to the Applicant’s condition of ‘lumbar spondylosis with bilateral foraminal stenosis, degenerative disc disease, and facet joint arthritis’, Dr ‘A’ explained that the degeneration is ‘widespread throughout the lumbar spine’ and surgery is not an option. He acknowledged that she is ‘quite deconditioned’ and has put on weight, which makes it hard to do the exercises and training required to ‘reverse’ these changes.[39] In response to a question about the Applicant’s description of the current pain she is experiencing (outlined at paragraph 21 above), Dr ‘A’ confirmed that a CT scan or an MRI of her back could identify whether an isolated area was causing the problem but noted that previous imaging showed ‘a widespread problem’ in her spine.[40] 

   [39] Oral evidence of Dr ‘A’, 7 December 2021.

   [40] Oral evidence of Dr ‘A’, 7 December 2021.

9. Dr ‘A’ also explained the Applicant’s condition of ‘chronic pain syndrome’, noting she has ongoing issues with her knees (even after surgery) that ‘throws out’ her ankles, hips and lumbar spine.[41] Dr ‘A’ considered treatments such as intensive physiotherapy or exercise physiotherapy would be financially prohibitive for the Applicant and she would need to rely on other people to get to appointments. He also opined that these treatments would not achieve an improvement that would get the Applicant off her medications or improve her mobility to the extent that she would be ‘able to work again’ or ‘look after all the care needs she has’.[42] Dr ‘A’ noted he had other patients who had experienced ‘mixed results’ from pain specialists but accepted this could be an option for the Applicant if the specialist was available in the area on a regular and reliable basis.[43]

   [41] Oral evidence of Dr ‘A’, 7 December 2021.

   [42] Oral evidence of Dr ‘A’, 7 December 2021.

   [43] Oral evidence of Dr ‘A’, 7 December 2021.

10. Dr ‘A’ told the Tribunal the Applicant’s condition of ‘adjustment disorder with depressed mood’ was triggered by her chronic pain and loss of capacity to work. In terms of treatment, Dr ‘A’ acknowledged he had referred the Applicant to a psychologist in early 2018 but was not aware of the outcome as the psychologist subsequently relocated. He also accepted that the Applicant would benefit from seeing a psychiatrist to review her treatment (noting there is ‘limited access’ to psychiatric support from the nearest hospital in the area) and receiving treatment from a psychologist.[44]

    [44] Oral evidence of Dr ‘A’, 7 December 2021.

11. In relation to the Applicant’s condition of ‘severe obstructive sleep apnoea’, Dr ‘A’ said there was no other available treatment except the CPAP machine, which she is ‘fully compliant’ with, and weight loss.[45] Dr ‘A’ stated that weight loss (bariatric) surgery was expensive and there were very few opportunities for this surgery in the local public health system. He observed the Applicant had some success with reducing her weight using medication to suppress her appetite, and he had referred her to a community health service for education and dietary support following her diagnosis of diabetes in February 2021. Dr ‘A’ also noted the Applicant’s weight played a ‘large’ but ‘secondary’ role in her other medical conditions.[46]

    [45] Oral evidence of Dr ‘A’, 7 December 2021.

    [46] Oral evidence of Dr ‘A’, 7 December 2021.

12. Dr ‘A’ opined that the Applicant’s condition of COPD affected her ability to undertake physical activities and observed she becomes ‘significantly short of breath’ walking from the waiting room to his office (a distance of 15 metres) as her ‘oxygenation desaturates’.[47] He confirmed the Applicant’s ability to ambulate with the aid of a walking stick was 25 metres.

    [47] Oral evidence of Dr ‘A’, 7 December 2021.

    Dr ‘B’ (consultant rheumatologist)

13. Dr ‘B’ is a consultant rheumatologist who wrote a medical report on 29 May 2015 after the Applicant presented with a ‘history of osteoarthrosis and possible fibromyalgia’.[48] Dr ‘B’ provided the following impression of the Applicant’s condition:

    [The Applicant] has primary and secondary osteoarthritis. This is evident in her right CMC [carpometacarpal] joint, probably accounts for some of her shoulder aching, in her knees and her neck and lower back. Whether she has fibromyalgia on top of this is another question and today I am not inclined to think she does. Rather, the aches and pains could all be explained by her osteoarthritis. She gives a history to suggest cervical and lumbar disc wear and has had sciatica in the past.[49]

    [48] Exhibit ST-ST6, page 6.

    [49] Exhibit ST-ST6, page 7.

14. Dr ‘B’’s report set out treatment options of pain medication, weight loss and CT guided facet joint steroid injections for the Applicant.

    Dr ‘C’ (orthopaedic surgeon)

15. On 12 October 2015, Dr ‘C’ provided a written medical report after reviewing the Applicant’s knees.[50] Dr ‘C’ noted the Applicant was unable to work due to pain in her right knee and suggested arthroscopy. Although Dr ‘C’ wrote that he had placed the Applicant on the wait list, there is nothing in the Applicant’s summonsed medical records to show Dr ‘C’ performed this surgery or that the Applicant had surgery on her knees until 2019 and 2021.

    [50] Exhibit A7.

    Dr ‘D’ (orthopaedic surgeon)

16. Dr ‘D’ is an orthopaedic surgeon who wrote medical reports dated 1 March 2018, 3 July 2019 and 24 March 2021. He reported on 1 March 2018 that the Applicant had severe arthritis in her right and left knees, and advised replacement surgery ‘one knee at a time’.[51]

    [51] Exhibit T-T3.

17. In the report on 24 March 2021, Dr ‘D’ stated the Applicant had right knee replacement surgery in May 2019 and he had reviewed her six weeks post-surgery. He noted that, following her right knee operation, the Applicant had ‘good range of motion, her flexion was 120⁰ which is excellent, she had good extension, the wound had healed well, there was no DVT [deep vein thrombosis] and [he] was happy with her x-rays’.[52] Dr ‘D’ noted that he had not seen the Applicant at six months post-surgery.

    [52] Exhibit R5.

    Dr ‘E’ (forensic psychiatrist)

18. At the request of the NDIA, Dr ‘E’ (forensic psychiatrist) completed a psychiatric assessment of the Applicant via videoconference on 13 November 2020 and provided a written report dated 2 December 2020.

19. Dr ‘E’ reported that the Applicant presented with ‘low self-confidence, increased appetite with associated weight gain, reduced mood reactivity and social withdrawal’; he assessed that she had an ‘adjustment disorder with depressed mood as per criteria in the Diagnostic and Statistical Manual for Mental Disorders version 5’.[53]

    [53] Exhibit R2, page 9.

20. Dr ‘E’ noted that the Applicant had trialled different antidepressant medications with limited benefit: in 2019, she commenced Pristiq and subsequently commenced Seroquel and was compliant with her current medication regime.

21. In his report, Dr ‘E’ opined the following in relation to the Applicant’s functional capacity in the areas of communication, social interaction, learning, mobility, self-care and self-management and potential need for treatment/support. He noted his opinion was limited as some of the Applicant’s ‘symptoms contributing to impairment are attributable to both her physical health conditions and her psychological condition’:[54]

    ·Communication: The Applicant had no impairment or restrictions on her ability to communicate.

    ·Social interaction: The Applicant maintained contact with her family members by phone and in person. She was not able to interact in group environment due to low self-confidence and psychological treatment may assist with improving her self-confidence.

    ·Learning: The Applicant has ‘impairment in concentration due to effects of poorly treated sleep apnoea and low mood impact on pace and extent of learning’ but she is ‘not likely to require assistance in learning new information…relevant to her day-to-day functioning’.[55]

    ·Mobility: Any impairment in mobility was ‘due to the Applicant’s physical health conditions’ and her psychiatric condition of ‘adjustment disorder’ did ‘not impair her mobility’.[56]

    ·Self-care: The Applicant’s ‘psychiatric condition did not impact on her ability to maintain personal hygiene’ and she would be ‘capable of applying make-up and going to the hairdresser…but [did] not engage in this activity as she has limited her social functioning and also has reduced interest in personal appearance due to low mood’.[57] 

    ·Self-management: The Applicant ‘has the capacity to make decisions and solve problems independently’.[58]

    [54] Exhibit R2, page 12.

    [55] Exhibit R2, pages 14-15.

    [56] Exhibit R2, page 15.

    [57] Exhibit R2, page 16.

    [58] Exhibit R2, page 18.

1. In oral evidence to the Tribunal, Dr ‘E’ described the impact of the Applicant’s impairment on her social interactions as ‘significant’ and said:

   …her social interactions were largely limited to family members. She mentioned that she was no longer interested in making friends, she avoided contact with all the friends that she’s had in the past because she’s really embarrassed about them seeing her the way she was, she wasn’t wanting to… build on the conversations she had with the neighbours, she wasn’t really inviting them home. And this seems to be a significant decline in her pre-morbid functioning where she was…running a radio show and…working fulltime… She’s really withdrawn from that so there’s been a significant impairment in her functioning, in my opinion.[59]

   [59] Oral evidence of Dr ‘E’, 6 December 2021.

2. In both his written report and oral evidence, Dr ‘E’ made recommendations about further treatment that could benefit the Applicant in relation to her psychological condition. These included:

   ·Consultation with ‘a psychiatrist to review her treatment regime given that she has had a suboptimal response to psychiatric treatments’ to date.[60] There would be an associated cost with this treatment as it is ‘hard to find’ a psychiatrist who ‘bulk-bills’ through Medicare.[61]

   ·Consultation with an experienced clinical psychologist (with clear and established goals for treatment) ‘aimed to improve her self-confidence may assist with some improvement in her social functioning’.[62]

   [60] Exhibit R2, page 10.

   [61] Oral evidence of Dr ‘E’, 6 December 2021.

   [62] Exhibit R2, page 10.

3. In making these recommendations, Dr ‘E’ further observed that the Applicant’s:

   psychiatric condition should be expected to resolve if her physical health conditions are successfully treated. I note from documents reviewed that her physical health conditions are regarded to be chronic and if that is indeed the case, her psychiatric condition may not fully resolve.

   I note that there has been some reduction in anxiety on her current medication regime. A favourable response to the proposed changes in her treatment plan would probably result in reduction in severity of symptoms rather than complete remission of her psychiatric condition. In my opinion, there is scope for mild to moderate improvement in her symptoms and any such improvement would be associated with proportional improvement in her psychosocial functioning.[63]

   [63] Exhibit R2, page 11.

   Dr ‘F’ (consultant physician in rehabilitation medicine)

4. Dr ‘F’ is a consultant physician in rehabilitation medicine who, at the request of the NDIA, examined and assessed the Applicant at her home on 11 June 2021, and provided written reports on 12 July 2021 and 26 October 2021.

5. In his report dated 12 July 2021, Dr ‘F’ outlined the Applicant’s medical history, her social and personal history, and her present complaints. In relation to her personal care, he observed she is ‘independent in all aspects of self-care’.[64] Dr ‘F’ also provided a review of available medical documents and findings from his clinical examination of the Applicant.

   [64] Exhibit R6, page 5.

6. Dr ‘F’ summarised his clinical findings as follows:

   [The Applicant] presents as an overweight and relatively deconditioned lady with good mobility and minimal pain in both shoulders. She has reasonable grip and grasp function despite her history of osteoarthritis affecting both hands. There was generalised stiffness in the lumbar spine with limited trunk flexion in keeping with her longstanding degenerative lumbar spine condition. There were no features of radiculopathy. She had a limited capacity for squatting and crouching consistent with her bilateral knee osteoarthritis and although her balance was relatively poor there was no ataxia and no sign of radiculopathy.

   Her main functional limitations were in terms of her mobility, her significantly reduced capacity for climbing, squatting as well as general stiffness and restricted mobility through the thoracolumbar spine, whilst noting her reduced tolerance of prolonged standing. Her upper limb function was preserved.

   I observed her accessing her kitchen and bedroom area using the internal stairs and grab rails. I also observed her accessing the small shower and toilet area and her ability to sit and stand without assistance.

   Although I did not carry out a formal Mini-Mental State Examination she did not demonstrate any cognitive issues and confirmed that she enjoys reading.[65]

   [65] Exhibit R6, pages 9-10.

7. Dr ‘F’ set out the Applicant’s diagnosed conditions and medical summary, noting she suffers from ‘a number of co-morbidities’.[66] He opined that the Applicant’s ‘deconditioning is a significant issue’ and her ‘obesity, deconditioning and failure to maintain any form of exercise program’ is ‘problematic’.[67] He also observed the Applicant had ‘largely relied on passive and avoidant strategies to manage her pain’.[68]

   [66] Exhibit R6, page 5.

   [67] Exhibit R6, page 12.

   [68] Exhibit R6, page 14.

8. Both in his written report and in oral evidence to the Tribunal, Dr ‘F’ made recommendations for the Applicant in relation to treatment including:

   ·Assessment by an exercise physiologist to instruct her in some exercises to maintain her strength and mobility, and improve her gluteal strength, quadriceps strength and core stability. He stated that this could be maintained through hydrotherapy (unsupervised pool exercise program) or a land-based home exercise program. However, Dr ‘F’ also noted that ‘compliance…is likely to be poor and there is limited access to resources for exercise rehabilitation’.[69]

   ·Referral to a pain clinic to review her current medication, engage with a pain psychologist and a pain education program, and assess ‘possible benefits of lumbar facet joint injections’ notwithstanding her ‘long history of chronic pain and in some respects opiate dependency’.[70]

   ·Referral to a rehabilitation physician, which is available through the public health system in a regional town 45 minutes’ drive from the Applicant’s home.

   ·On the basis of Dr ‘A’ reporting the Applicant’s level of breathlessness due to COPD after walking 15 metres, Dr ‘F’ proposed undertaking ‘medical assessments and investigations to determine the cause of that breathlessness’.[71]

   [69] Exhibit R6, page 18.

   [70] Exhibit R6, page 15.

   [71] Oral evidence of Dr ‘F’, 8 December 2021.

9. Dr ‘F’ also recommended review of the Applicant’s most recent assessment ‘to determine whether she has been compliant’ with dietary advice.  He opined:

   I have little doubt that if she were to successfully lose weight then this would have a significant impact on her mobility, her bilateral knee pain and also her chronic lumbar pain and this would therefore increase her overall mobility, enjoyment of life, access to the community and functional capacity.

   I did not form the view that breathlessness or any symptoms related to her mild COPD is having a significant impact on her functional capacity. Nor do I consider that her obstructive sleep apnoea is having any significant impact on her functional capacity other than the need to use a CPAP machine at night.

   In my opinion the main impact on the Applicant’s mobility and therefore her functional capacity is coming from her obesity, deconditioning, her chronic degenerative lumbar spine condition and her bilateral knee osteoarthritis which will likely benefit from the planned left total knee arthroplasty.[72]

   [72] Exhibit R6, page 15.

10. In oral evidence, Dr ‘F’ stated that an exercise program would not cure the Applicant’s underlying diseases but would ‘remedy’ her symptoms and increase her function.[73]

    [73] Oral evidence of Dr ‘F’, 8 December 2021.

11. In relation to functional assessment of the Applicant, Dr ‘F’ noted:

    She is independent in self-care and currently receives adequate assistance with cleaning and domestic duties. She does not require any attendant care or personal care support and in her current accommodation she does not require any additional assistive aids.

    …

    In my opinion the only domestic assistance that [the Applicant] currently requires is in relation to housework and general cleaning, provision of online shopping and a home delivery service, and with transport to access the community with a mobility scooter and her car.[74]

    [74] Exhibit R6, pages 18-19.

12. For completeness, I note the Applicant provided oral evidence in which she questioned the assessment undertaken by Dr ‘F’ and his clinical findings in relation to some aspects of her functional capacity. The Applicant’s cleaner who was present (in the caravan) also gave oral evidence to the Tribunal about the assessment undertaken by Dr ‘F’ and whether he had observed the Applicant do particular physical activities such as access her bathroom. In his oral evidence, Dr ‘F’ strongly refuted these claims. He noted the cleaner was in the caravan, not in the annex where the assessment occurred and therefore had not observed his examination of the Applicant or her access the bathroom. While I accept there are two different views, in terms of the issues I must determine, I have considered any pertinent differences together with other available and relevant evidence.

    Evidence – occupational therapist

    Ms ‘G’ (occupational therapist)

13. Ms ‘G’ is an occupational therapist who assessed the Applicant in her home and provided a written report dated 30 November 2021. Ms ‘G’ also gave oral evidence at the hearing on 7 December 2021.

14. In her written report, Ms ‘G’ explained the purpose of her report was to provide an assessment of the Applicant’s ‘current functional performance and ability’ in the areas of communication, social interaction, learning, functional mobility, self-care and self-management. Ms ‘G’ stated the Applicant’s impairments, social background and her goals; these were to access the NDIS to ‘get support with domestic assistance, shopping, transport and community access, mobility/transfer aids and social support’ to ‘improve her quality of life and reduce the burden on her elderly parents and sons’.[75]

    [75] Exhibit A17, page 2.

15. Ms ‘G’ used the World Health Organization Disability Assessment Schedule (WHODAS 2.0) assessment instrument to measure the Applicant’s level functional capacity based on self-reported scoring by the Applicant. On the basis of these scores, the following assessment outlined the ‘domain’ (for example, ‘cognition’) and the Applicant’s level of impairment:

    ·Cognition – understanding and communicating: no impairment

    ·Mobility – moving and getting around: severe impairment

    ·Self-care – hygiene, eating and staying alone: mild impairment

    ·Social interaction – getting along with others: moderate-severe impairment

    ·Life activities – household responsibilities: severe impairment

    ·Life activities – work and school: extreme impairment

    ·Participation in society: severe impairment.[76]

    [76] Exhibit A17, pages 2-3.

16. Ms ‘G’ provided an interpretation of these results, which is that the Applicant has ‘most recorded impairment in domains related to mobility and those impacted by poor mobility, being getting around and completing life activities’.[77]

    [77] Exhibit A17, page 3.

17. In relation to the Applicant’s current functional capacity in the area or domain of mobility, Ms ‘G’ reported:

    [The Applicant] has severe difficulty standing for long periods (<15 min) and walking long distances (<50m) due to the pain and fatigue from her conditions. Likewise, her pain, fatigue and her reduced motivation impacts her ability to get out of her home. [The Applicant] was observed to mobilise independently around her home (<15m) with aid of a walking stick. She reports that she utilises a 4WW [four wheel walker] when accessing her community, as she walks ~ 25m then uses the 4WW seat to rest on…

    [The Applicant] has a driver’s licence and car, however, is only able to travel within her local area due to the pain driving triggers. She reports that trips out in the car are infrequent as she feels that she is barely able to drive safely. She used to rely on her mother for frequent transport, but her mother’s poor health now prevents this. [The Applicant] reports that she does not use local buses as they aggravate her pain.

    [The Applicant] has assistive aids/technology in the home including a shower stool and grab-rails to assist transfers across thresholds. [The Applicant] has reduced tolerance for standing, and has reports [sic] fear of falling, so has a shower stool, HHSH [handheld shower hose] and suction-rails to reduce her falls risk in the shower. To transfer off the toilet, she uses the assistance of the vanity to pull herself into standing. To transfer out of her arm-chair she rocks forwards/backwards to gain momentum to propel herself up. There are 2 steps between the annex and caravan with bilateral grab rails that [the Applicant] relies on to help her mobilise up/down the stairs. As her ability to stand still for long periods is impaired, she has a perching stool in the kitchen to enable her to complete light food preparation activities. [The Applicant] reported that she’s independent with bed mobility, but twisting and bending of her spine aggravates pain.[78]

    [78] Exhibit A17, pages 3-4.

18. In relation to the area or domain of social interaction, Ms ‘G’ stated that the Applicant has ‘moderate functional impairment’ due to ‘reduced mobility associated with her joint degeneration and chronic pain’ and noted the Applicant reported:

    … that she has no friends as she has difficulty visiting them and difficultly completing normal community activities with them. Furthermore, she has reduced motivation and energy levels to participate in social interactions due to her depression and fatigue related to sleep apnoea. Her only regular contact is her direct family members, and the paid cleaner.

    [The Applicant] reports that her history of opioid use for pain management has impacted her behaviours, at times, making her not act like herself. Similarly, [the Applicant’s] depression, pain and fatigue from her conditions impacts her ability to initiate activities and she reports that there are days where she won’t be able to get out of bed.[79]

    [79] Exhibit A17, page 4.

19. Ms ‘G’ set out the Applicant’s functional capacity for self-management as follows:

    [The Applicant] reports that she has severe difficulty with taking care of her household responsibilities and getting housework done due to her pain and reduced range of motion. She is unable to rely on her family to assist. She reports “SASH” cleaners are currently attending…2 x a week, with 2hrs for cleaning and laundry and then 30 min the following day to collect the laundry. As [the Applicant] lives in a caravan park, there are only communal washing facilities that are a ~80m walk away. She is not able to ambulate long distances nor carry heavy loads due to her pain and reduced range of motion…

    [The Applicant] uses online banking on her phone to manage her finances and is required to budget heavily to ensure she can afford her rent, medications and food on her DSP pension.

    Due to her conditions, [the Applicant] does not cook as it is painful for her to stand for long periods (e.g to chop food). This is compounded by her reduced motivation associated with her depression to complete cooking tasks and the flow-on cleaning/washing up tasks. She completes online shopping where she orders pre-made meals that she heats in the microwave. [The Applicant] reports extreme difficulty with transporting the grocery bags from her front door up the 2 steps to the kitchen. She reports that it can take all day to move the bags as she requires rests between loads.

    [The Applicant] self-administers her medication from a webster pack arranged by her chemist. She requires a webster pack due to a history of medication mistakes attributed to confusion from opioid use.[80]

    [80] Exhibit A17, pages 4-5.

20. Ms ‘G’ assessed the Applicant as ‘independent with aids’ in self-care including showering, dressing, toileting, grooming, meal preparation, sleep/overnight care, and medication management, and ‘independent’ with eating and drinking.[81] However, Ms ‘G’ also reported:

    [The Applicant’s] level of self-care functioning fluctuates depending on her chronic pain symptoms and mental health. While [the Applicant] is independent in all self-care tasks, she often does not complete them due to pain and fatigue, meaning she often goes many days without attending to her personal hygiene.

    [The Applicant] reports that she lacks the energy to shower, conducting showering about once a week only. Hair washing and hair brushing are also difficult as the sustained above head movements are difficult, and she will avoid this due to likely aggravation of pain.[82]

    [81] Exhibit A17, page 3.

    [82] Exhibit A17, page 5.

21. Regarding functional capacity in the areas of communication and learning, Ms ‘G’ stated the Applicant scored an average of ‘no difficulty’ in ‘understanding and communicating’ and she presented as ‘having good cognition and communication skills’.[83]

    [83] Exhibit A17, page 5.

22. Ms ‘G’ made recommendations for services and supports for the Applicant, which included domestic assistance (cleaning and laundry) and home maintenance, meal/food delivery services (two meals per day or as recommended by dietitian), social support for connections with others, personal care for hair washing, psychological support, exercise physiologist/ physiotherapy/ hydrotherapy, assistive technology, transport and support coordination.

23. In oral evidence at the hearing, Ms ‘G’ confirmed that the WHODAS 2.0 assessment was based on the Applicant’s self-reporting of her function. Ms ‘G’ said that, while she was able to observe the Applicant’s functional capacity inside her home, she was unable to assess the Applicant’s capacity to mobilise outside her caravan due to poor weather. Ms ‘G’ said she observed the Applicant to stand for five minutes before she had to sit down due to ‘reduced tolerance’ and pain, and she considered it would be ‘reasonable’ for the Applicant to walk 25 to 50 metres with a four-wheel walker, although she would not be able to do this while carrying a washing basket filled with clothes.[84]

    [84] Oral evidence of Ms ‘G’, 7 December 2021.

24. Ms ‘G’ also told the Tribunal her opinion that the Applicant ‘has chronic impairments in her functional capacity’ that affects her mobility, social interaction and self-management was based on her interpretation of the medical evidence of Dr ‘A’ that the Applicant’s medical conditions are ‘not likely to get better’ and are ‘progressive’.[85] She stated that the Applicant’s ‘mobility has a significant functional impact…[and] that’s impacting the social interactions’.[86]

    [85] Oral evidence of Ms ‘G’, 7 December 2021.

    [86] Oral evidence of Ms ‘G’, 7 December 2021.

    CONSIDERATION

25. As set out in paragraph 9, the sole issue for determination by the Tribunal is whether the Applicant satisfies the access criteria in either section 24 or section 25 of the Act.

    Section 24 of the Act: the disability requirements

26. To satisfy the disability requirements in subsection 24(1) of the Act, the Applicant must meet all the conditions in paragraphs 24(1)(a) to (e). I now consider each of these requirements.

    Paragraph 24(1)(a): does the Applicant have a disability?

27. Paragraph 24(1)(a) of the Act requires that the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or to one or more impairments attributable to a psychiatric condition.

28. Consistent with Mortimer J’s decision in Mulligan v National Disability Insurance Agency,[87] Chapter 8.1 of the Access Operational Guideline includes the following paragraphs:

    [87] [2015] FCA 544 at [15]–[16].

    The term ‘disability’ is described in Article 1 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) as follows:

    “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

    For the purposes of becoming a participant in the NDIS the focus of ‘disability’ is on the reduction or loss of an ability to perform an activity which results from an impairment.

    The term ‘impairment’ commonly refers to a loss of, or damage to, a physical, sensory or mental function.

    The narrower definition of ‘disability’ employed by the NDIS seeks to target those people with disability who have a significant impairment to their functional capacity. This functional definition of disability focuses on outcomes for people with disability that are in the most need (Explanatory Statement to the Becoming a Participant Rules).

    The NDIA must be satisfied that a person has a disability that is attributable to one or more impairments which results in a reduction or loss of an ability to perform certain activities.

    …

    Whether a prospective participant has a disability attributable to an impairment is a question of fact to be determined on the balance of available evidence, including their diagnosis. [emphasis in original]

1. I consider these paragraphs set out that a person has a disability within the meaning of paragraph 24(1)(a) of the Act where the available evidence shows that:

   ·they have an impairment, which is a loss of, or damage to, a physical, sensory or mental function; and

   ·their impairment/s are the cause of their reduction or loss of ability to perform an activity.

2. The medical evidence of Dr ‘A’ shows the Applicant has been diagnosed with the conditions of lumbar spondylosis with bilateral foraminal stenosis, degenerative disc disease, and facet joint arthritis; chronic pain syndrome; adjustment disorder with depressed mood; severe obstructive sleep apnoea; type 2 diabetes mellitus; morbid obesity; and asthma and COPD.

3. While each of these conditions are considered separately below, I note and accept the evidence of Dr ‘A’ outlined at paragraph 35 that the Applicant’s conditions are ‘not experienced in isolation of one another’.

   Lumbar spondylosis with bilateral foraminal stenosis, degenerative disc disease, and facet joint arthritis

4. Based on the medical evidence of Dr ‘A’ and Dr ‘F’, I am satisfied the Applicant’s conditions of lumbar spondylosis with bilateral foraminal stenosis, degenerative disc disease and facet joint arthritis cause a loss of, or damage to, her physical function and a reduction in her ability to perform physical activities.

5. I find these conditions are a disability within the meaning of paragraph 24(1)(a) of the Act.

   Chronic pain syndrome

6. I have considered and agree with the Respondent’s submissions that pain is ‘not an “impairment” per se’, but the experience of ‘pain might be such as to limit particular bodily functions and so constitute an “impairment”’.[88]

   [88] Respondent’s Statement of Facts, Issues ad Contentions, 29 October 2021, paragraph 45.

7. I am satisfied the medical evidence of Dr ‘A’ and Dr ‘F’ shows the Applicant’s condition of chronic pain syndrome is an impairment because her experience of pain causes loss of, or damage to, her physical function and a reduction in her ability to perform activities.

8. I find this condition is a disability within the meaning of paragraph 24(1)(a) of the Act.

   Adjustment disorder with depressed mood

9. Based on the medical evidence of Dr ‘A’ and Dr ‘E’, I find the Applicant’s condition of adjustment disorder with depressed mood causes her to experience low mood and loss of, or damage to, her mental function and reduces her ability to perform activities.

10. I find this condition is a disability within the meaning of paragraph 24(1)(a) of the Act.

    Severe obstructive sleep apnoea

11. Based on the medical evidence of Dr ‘A’ set out at paragraph 34 that the Applicant experiences ‘severe somnolence and clouding of thought process’ from her condition of obstructive sleep apnoea, I find this condition causes her to experience loss of, or damage to, her physical and mental functions and reduces her ability to perform activities.

12. I find this condition is a disability within the meaning of paragraph 24(1)(a) of the Act.

    Type 2 diabetes mellitus

13. As set out in paragraph 34, Dr ‘A’ reported the Applicant’s condition of type 2 diabetes mellitus ‘adds’ to her level of fatigue. However, there is no medical evidence that this condition on its own is an impairment or causes the Applicant to experience loss of, or damage to, her physical or mental functions or a reduction in her ability to perform activities.

14. I am not satisfied the evidence before the Tribunal shows this condition is a disability within the meaning of paragraph 24(1)(a) of the Act.

    Morbid obesity

15. There is limited medical evidence that the Applicant’s condition of morbid obesity causes her to experience loss of, or damage to, her physical function and a reduction in her ability to perform activities. The available evidence is:

    ·Dr ‘A’’s opinion set out at paragraphs 34 and 37 about the causes of the Applicant’s weight-gain, barriers to her losing weight and her ‘unsuccessful attempts’ at weight loss, and that morbid obesity is a ‘contributing factor’ to her ‘significantly reduced functional capacity’.

    ·Dr ‘F’’s opinion set out at paragraph 61 that the Applicant’s obesity (as well as her ‘deconditioning’) is ‘problematic’, and weight-loss would positively impact on her mobility.

16. I am not satisfied this evidence is sufficient for me to make a finding the Applicant’s condition of morbid obesity on its own is a disability within the meaning of paragraph 24(1)(a) of the Act.

    Asthma and COPD

17. As set out in paragraph 34, Dr ‘A’ stated in his report dated 10 August 2021 that the Applicant’s conditions of asthma and COPD affect her carbon dioxide retention and cause reduced oxygenation, which ‘increase [her] somnolence and impair [her] cognition’.

18. I observe the oral evidence of Dr ‘A’ and Dr ‘F’ articulated different medical opinions about the possible reasons for the Applicant’s high levels of breathlessness on physical exertion. However, weighing all the evidence, I am satisfied this condition causes the Applicant to experience loss of, or damage to, her physical and/or mental functions and reduces her ability to perform activities.

19. I find this condition is a disability within the meaning of paragraph 24(1)(a) of the Act.

    Paragraph 24(1)(b): are the Applicant’s impairments permanent, or likely to be permanent?

20. The Participant Rules provide the following guidance to consider when an impairment is, or is likely to be, permanent:

    5.4 An impairment is, or is likely to be, permanent (see paragraph 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.

    5.5 An 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 their psychosocial functioning, may improve.

    5.6 An 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 in order 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).

    5.7 If 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. [emphasis added]

21. For the purposes of this requirement and for the reasons set out in paragraphs 81–101 above:

    ·I am satisfied the Applicant’s impairments are lumbar spondylosis with bilateral foraminal stenosis, degenerative disc disease, and facet joint arthritis; chronic pain syndrome; adjustment disorder with depressed mood; severe obstructive sleep apnoea; and asthma and COPD.

    ·I am not satisfied the medical evidence shows the Applicant’s conditions of type 2 diabetes mellitus and morbid obesity are an impairment as set out in chapter 8.1 of the Access Operational Guideline and the Act.

22. I now consider whether each of the Applicant’s impairments are, or are likely to be, permanent as required by paragraph 24(1)(b) of the Act and the Participant Rules.

    Lumbar spondylosis with bilateral foraminal stenosis, degenerative disc disease, and facet joint arthritis

23. Having regard to the medical evidence, I am satisfied that the Applicant’s impairment of lumbar spondylosis with bilateral foraminal stenosis, degenerative disc disease, and facet joint arthritis is of a ‘degenerative nature’. Consequently, rule 5.7 of the Participant Rules is to be applied to determine whether the Applicant’s impairment is permanent and whether ‘medical or other treatment would not, or would be unlikely to, improve the condition’.

24. The report of Dr ‘A’ on 10 August 2021 stated this impairment was ‘permanent’, treated through ‘pain management’ and there are ‘no further appropriate treatment options’ (see paragraph 34). The Applicant’s current treatment for this impairment is pain medication including opiates and CBD oil, and assisted by her weight-loss through diet and medication.

25. The report of Dr ‘F’ on 12 July 2021 provided an alternative medical opinion: Dr ‘F’ observed the Applicant suffered from ‘a number of co-morbidities’ and opined about the effect of her obesity and deconditioning (see paragraph 61). He recommended the following treatments that would be likely to improve the Applicant’s impairment:

    ·assessment by an exercise physiologist to improve her strength and mobility, and develop a home exercise program;

    ·attendance at a pain clinic to review her current pain medication, engage with a pain psychologist and/or participate in a pain education program; and/or

    ·seeing a rehabilitation physician.

26. I accept the Applicant attended ‘one-off’ physiotherapy and hydrotherapy appointments in early 2018, and the Applicant gave oral evidence to the Tribunal that she does some seated home exercises for her knees and back. However, both the Applicant and Dr ‘A’ confirmed to the Tribunal that she has not seen or engaged with an exercise physiologist or a rehabilitation physician and she has never attended a pain clinic.

27. I have considered the relevant evidence of Dr ‘A’ that the Applicant’s access to treatment is complicated by her limited financial situation and the availability of services in her local area, and have balanced this together with the objective and credible oral evidence of Dr ‘F’, who listed relevant medical specialists available to the Applicant.

28. Overall, I am satisfied the evidence shows the Applicant can access treatment through the public health system from an exercise physiologist and/or rehabilitation physician in a regional town that is 45 minutes’ drive from her home, and can access a pain clinic through a public hospital that is two hours’ drive from her home.

29. In view of the Applicant’s current description of her back pain set out at paragraph 21, I also note the oral evidence of both Dr ‘F’ and Dr ‘A’ that further investigations would be useful to ascertain the source of this pain and consider whether treatment (such as injections) could improve the condition.

30. I find the evidence shows there are medical or other treatments that would, or would be likely to, improve her condition. Therefore, I am not satisfied this impairment is, or is likely to be, permanent as required by paragraph 24(1)(b) of the Act.

    Chronic pain syndrome

31. The medical evidence of Dr ‘A’ set out at paragraph 34 stated that the Applicant has been diagnosed with chronic pain syndrome, which is ‘multi-factorial’ and has been treated with opiate pain medication and CBD oil.

32. Consistent with rule 5.4 of the Participant Rules, I consider whether there are any ‘known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment’.

33. The Tribunal in FBJV and NDIA provided the following explanation of ‘remedy’:

    While the word ‘remedy’ can include ‘cure’, the [Participant] Rules do not require that the treatments would be likely to ‘cure’ the impairment. In this regard, the word ‘remedy’ should be given its ordinary everyday meaning. The Macquarie Dictionary relevantly defines ‘remedy’ to mean ‘something that cures or relieves a disease or bodily disorder; a healing medicine, application, or treatment’… For completeness, the Tribunal notes that ‘relieve’ is defined to mean ‘to ease or alleviate (pain, distress, anxiety, need, etc.).’ Accordingly, an impairment is ‘permanent’, or likely to be permanent, for the purpose of determining access to the NDIS, when there is no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to cure or relieve the impairment. This necessarily includes easing the impact or effects of the impairment.[89][emphasis added]

    [89] [2021] AATA 913 at [117].

34. The evidence of Dr ‘A’ set out at paragraph 34 stated this condition was ‘permanent’ and ‘unlikely to reduce in the context of lack of future treatment modalities’. Treatments undertaken by the Applicant that are relevant to this impairment include attending ‘one-off’ physiotherapy and hydrotherapy appointments in 2018, having right and left knee replacement surgery in 2019 and 2021, taking pain medication (opiates and CBD oil), some weight-loss through diet and medication since February 2021, and doing seated homes exercises for her knees and back.

35. As I already outlined at paragraph 107 above, the report of Dr ‘F’ on 12 July 2021 set out the following treatments would be likely to improve the Applicant’s condition:

    ·assessment by an exercise physiologist to improve her strength and mobility, and develop a home exercise program;

    ·attendance at a pain clinic to review her current pain medication, engage with a pain psychologist and/or participate in a pain education program; and/or

    ·seeing a rehabilitation physician.

36. The Applicant and Dr ‘A’ confirmed to the Tribunal that she has not attended a pain clinic in relation to her condition of chronic pain. She also has not seen or engaged with an exercise physiologist, a rehabilitation physician or a psychologist.

37. In relation to the impairment of chronic pain syndrome, I note that both Dr ‘A’ and Dr ‘F’ observed the Applicant has taken a ‘passive approach’ to treatment to avoid pain. This was also agreed by the Applicant, who stated (understandably) she is scared of ‘overexerting’ her body and making the pain worse.

38. In view of Dr ‘A’’s evidence, I have considered whether the Applicant’s access to treatment from medical specialists is affected by her limited finances and the availability of services in her local area. However, I am satisfied the evidence shows the Applicant can access treatment through the public health system from an exercise physiologist, rehabilitation physician and/or a psychologist in a regional town that is 45 minutes’ drive from her home.

39. The Applicant’s representative made submissions at the Tribunal hearing that treatment from a pain clinic is not ‘available’ to the Applicant (as set out in rule 5.4 of the Participant Rules) because she cannot drive two hours to attend the nearest pain clinic at a public hospital and her son cannot drive her because he has work commitments.

40. I do not accept this submission. First, there is no evidence before the Tribunal that the Applicant is unable to sit in a car for extended periods; indeed, she sat for periods that exceeded two hours during the Tribunal hearing. I also consider that it is not excessive for a family member to assist the Applicant with accessing this type of treatment on either an occasional or ‘one-off’ basis.

41. Second, I am not satisfied that the requirement to drive for two hours from a small regional town to a public hospital equates to treatment not being ‘available’. In particular, I note it is not unusual in Australia for people to drive from regional areas to larger cities to access specialist medical treatment and a drive time of two hours to access such treatment could occur even within areas of a large city such as Sydney.

42. Third, the evidence before the Tribunal in relation to the Applicant’s capacity to drive was inconsistent. The Applicant’s NSW driver licence was renewed only five months prior to the Tribunal hearing following a medical assessment and the medical notes of Dr ‘A’ recorded ‘no contraindications’ to her driving (see paragraph 38). This was contrasted by the Applicant’s oral evidence that she limited her driving to her local area due to her use of CBD oil.

43. I am not satisfied the evidence shows the Applicant’s impairment of chronic pain syndrome is, or is likely to be, permanent as required by paragraph 24(1)(b) of the Act.

    Adjustment disorder with depressed mood

44. The medical evidence of Dr ‘A’ outlined at paragraph 34 stated the Applicant has been diagnosed with adjustment disorder with depressed mood, ‘secondary to [her] physical conditions and chronic pain syndrome’. Since 2019, this impairment has been treated with anti-depressant medication. The Applicant also saw a psychologist briefly in 2018.

45. The report of Dr ‘E’ on 2 December 2020 stated that the Applicant’s psychiatric impairment would benefit from consultation with a psychiatrist to review her treatment (pharmacological) regime; and/or seeing a clinical psychologist for regular counselling.

46. Both the Applicant and Dr ‘A’ told the Tribunal that she has not consulted a psychiatrist or seen a clinical psychologist for counselling. I also accept the Applicant may not be able to afford access to a psychiatrist though the private health system.

47. However, I am satisfied the Applicant has access through the public health system to a psychiatrist (at the hospital) and/or a clinical psychologist in a regional town that is 45 minutes’ drive from her home. I am also satisfied that she can access counselling with a psychologist through a GP mental health care plan and this treatment has been outlined in her GP management plan from 18 February 2021. Given the Applicant resides in a regional area, it may also be the case that she can access treatment from a psychologist through telehealth.

48. I find that the Applicant seeing a psychiatrist and/or a clinical psychologist is ‘known, available and appropriate’ treatment that would be likely to remedy her impairment.

49. I am not satisfied the Applicant’s impairment of adjustment disorder with depressed mood is, or is likely to be, permanent as required by paragraph 24(1)(b) of the Act.

    Severe obstructive sleep apnoea

50. The evidence of Dr ‘A’ to the Tribunal is that the only treatments available to the Applicant for her sleep apnoea are the use of a CPAP machine and weight loss.

51. The evidence about the Applicant’s effective use of the CPAP machine differed between the medical reports as follows:

    ·Dr ‘A’ reported in August 2021 that the Applicant’s impairment of severe obstructive sleep apnoea was ‘fully treated as capable via CPAP’ (see paragraph 34). However, this contemporary assessment differed to Dr ‘A’’s reporting in 2020 that the Applicant was being ‘more compliant’ in ‘trying the CPAP machine each night’ and her sleep apnoea was ‘complicated by [her] use of strong pain medication’ (see paragraph 37).

    ·Dr ‘E’ reported that the Applicant’s sleep apnoea was ‘poorly treated’ in November 2020 (see paragraph 54), and the Applicant told him:

    Her sleep pattern was interrupted due to her sleep apnoea. She believed that the CPAP machine was no longer effective and needed to be replaced. She was able to fall asleep due to the sedating nature of her medications but woke up intermittently due to the faulty CPAP machine.[90]

    ·Dr ‘F’ reported the Applicant’s obstructive sleep apnoea does not have ‘any significant impact on her functional capacity other than the need to use a CPAP machine at night’ (see paragraph 63).

    [90] Exhibit R2, page 4.

52. While I place considerable weight on the evidence of Dr ‘A’ as the Applicant’s long-term treating general practitioner, the medical evidence is not consistent in relation to whether the Applicant is fully compliant with using the CPAP machine and/or whether the CPAP machine she uses is ‘faulty’. Overall, I accept the evidence suggests the Applicant is attempting to use the CPAP machine but has difficulties with this due to experiencing pain when lying on her back. The question then is whether the Applicant’s attempted compliance with using a CPAP machine equates to her accessing all ‘known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment’.

53. In relation to the Applicant’s weight-loss, the oral evidence of Dr ‘A’ was the Applicant had made efforts to reduce her weight through diet and medication since her diagnosis of diabetes in February 2021. In August 2021, Dr ‘A’ outlined the Applicant’s pain medication could cause her to gain weight and, in July 2020, Dr ‘A’ wrote about the financial and psychological barriers to the Applicant losing weight.

1. I have also considered the clear and somewhat emphatic evidence of Dr ‘F’ about the benefit of weight-loss to the Applicant.

2. On the basis of the available medical evidence, it is not clear the Applicant has exhausted all available weight loss treatments or has attained her maximum weight loss. For example, she has not had a review of her pain medication by a pain clinic/pain specialist (given Dr ‘A’’s view that her pain medication could cause weight gain) or attended a psychologist to address any psychological barriers to losing weight, and there is minimal information about whether further weight-loss could be achieved through diet and/or medication.

3. Considering the evidence about the Applicant’s current treatments, I cannot find there are ‘no known, available and appropriate treatments’ that would be likely to remedy her impairment of severe obstructive sleep apnoea.

4. I am therefore not satisfied the Applicant’s impairment of severe obstructive sleep apnoea is, or is likely to be, permanent as required by paragraph 24(1)(b) of the Act.

   Asthma and COPD

5. The written evidence of Dr ‘A’ set out at paragraph 34 noted the Applicant’s conditions of COPD and asthma that are treated by medications. At the Tribunal hearing, Dr ‘A’ gave oral evidence about the significant breathlessness experienced by the Applicant from walking 15 meters due to her condition of COPD and oxygenation desaturation.

6. I note this evidence of Dr ‘A’ significantly contrasted with the view set out by Dr ‘F’ that the Applicant’s breathlessness or symptoms related to her COPD did not have a ‘significant impact on her functional capacity’ (see paragraph 63). When asked about the Applicant’s level of breathlessness reported by Dr ‘A’, Dr ‘F’ gave oral evidence at the hearing that the Applicant’s impairment from asthma and COPD would benefit from specialist medical review to investigate both the level and cause of her breathlessness. He further stated that, even patients with severe breathlessness from emphysema, benefit from treatment from an exercise physiologist and/or rehabilitation physician.

7. I am not satisfied the Applicant’s impairments of asthma and COPD are, or are likely to be, permanent as required by paragraph 24(1)(b) of the Act.

8. For these reasons, I do not find any of the Applicant’s impairments are permanent within the meaning of paragraph 24(1)(b) of the Act.

   Paragraph 24(1)(c): do the Applicant’s impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication; social interaction; learning; mobility; self-care; self-management?

9. Paragraph 24(1)(c) of the Act requires the Applicant to demonstrate that her impairments result in substantially reduced functional capacity to undertake any of the activities listed in subparagraphs (i) to (vi); communication, social interaction, learning, mobility, self-care, and/or self-management.

10. Paragraph 5.8 of the Participant Rules provides:

    5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) – if its result is that:

    (a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

    (b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

    (c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

11. Further guidance is set out in chapter 8.3.1 of the Access Operational Guideline:

    The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:

    By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.

    In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant’s impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.

    Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.

    When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person’s need for assistance is consistent with normal expectations of a person of a similar age…

    A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.

    When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person’s ability to function in the periods between acute episodes. [emphasis in original]

12. Prior to considering each of the activities in subparagraphs (i) to (vi) of paragraph 24(1)(c) of the Act, I make the following general observations in relation to the evidence about the Applicant’s functional capacity.

13. First, I found the variations and inconsistencies in the medical evidence somewhat troubling. On the one side, the reports of Dr ‘A’ and Ms ‘G’ (supported by the written and oral evidence of the Applicant) depicted the Applicant as a person who is extremely unwell and regularly unable to get out of bed or leave her caravan and, consequently, experiences significant social isolation due to her inability to mobilise. This evidence was that her thought processes and memory are also ‘clouded’, which significantly affects her capacity to self-care, self-manage and participate in social interaction.

14. On the other side, the written and oral evidence of Dr ‘F’ accepted the Applicant had ‘a number of co-morbidities’, but noted her ‘obesity, deconditioning and failure to maintain any form of exercise program’ was ‘problematic’ and affected her functional capacity (see paragraph 61). Dr ‘F’ provided clear and objective evidence that addressing these issues through treatment from an exercise physiologist and/or a rehabilitation physician would not cure the Applicant’s underlying diseases but would improve her functional capacity. The evidence of Dr ‘E’ was also that the Applicant’s psychiatric condition would improve if her ‘physical health conditions are successfully treated’ (see paragraph 57).

15. In considering these inconsistencies in the evidence, I note the written reports of both Dr ‘A’ and Ms ‘G’ relied heavily on the Applicant’s self-reporting of her functional capacity. Further, some of the Applicant’s self-reported limitations were not tested in the assessment undertaken by Ms ‘G’, and Dr ‘A’ only tested these limitations in the confines of his medical rooms, albeit over a period of many years. In contrast, Dr ‘F’ outlined his observations from his own assessment at the Applicant’s caravan/annex and made minimal references to the Applicant’s self-reporting of her functional capacity in his evidence. 

16. Second, and of considerable concern given the Applicant’s level of functional incapacity, has been her apparent reluctance to engage with treatments that are available through the public health system in a regional town that is 45 minutes’ drive from her home. The clear evidence of Dr ‘F’, that was agreed by Dr ‘A’ in his evidence to the Tribunal, is there are available treatments that could improve the Applicant’s functional capacity; these include seeing an exercise physiologist and/or rehabilitation physician, attending a pain clinic, and seeing a psychiatrist and/or clinical psychologist.

17. I now consider the evidence in relation to the Applicant’s functional capacity for each of the activities.

    Communication

18. Chapter 8.3 of the Access Operational Guideline states that communication:

    includes being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age.

19. There is no evidence before the Tribunal that the Applicant has a substantially reduced functional capacity to communicate. In particular, the report of Dr ‘E’ stated there were no restrictions on the Applicant’s ability to communicate and the assessment by Ms ‘G’ stated the Applicant had no impairment of understanding or communication.

20. At the Tribunal hearing, the Applicant provided extensive and detailed oral evidence over three days. She engaged with the process in a cheerful and positive manner, although she experienced occasional difficulty with recall. The Applicant was supported to participate in the hearing by a disability advocate who ensured the videoconference technology operated well and the Applicant was comfortable and had access to relevant documents. However, I also note Dr ‘E’ provided evidence that the Applicant participated by videoconference in his psychological assessment without the assistance of another person.

21. I am satisfied the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake communication.

    Social interaction

22. Social interaction is described in chapter 8.3 of the Access Operational Guideline as including:

    making and keeping friends…, interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context.

23. Dr ‘E’ reported the Applicant maintained contact with her family members, and the Applicant told the Tribunal she interacted with her neighbours at the caravan village and her cleaner who attended twice a week.

24. Dr ‘E’ provided evidence that the Applicant was unable to interact in a ‘group environment’ due to her ‘low self-confidence’ but noted that this may improve with psychological treatment (see paragraphs 54 and 57). He also observed in his oral evidence that the Applicant had experienced a ‘significant decline’ in her level of social interaction from her pre-morbid functioning when she worked and operated a community radio program.

25. The report of Ms ‘G’ referred to the Applicant having a ‘moderate-severe impairment’ in getting along with others and social interaction due to her restricted mobility (see paragraph 69). However, I must place less weight on the WHODAS 2.0 assessment by Ms ‘G’ as it relied heavily on the Applicant’s self-reported scoring of her functional capacity.

26. I accept the evidence shows the Applicant experiences difficulties in social interaction in group environments and social isolation due to her restricted mobility, and her current level of social interaction is significantly less than she experienced prior to 2016.

27. However, considering the guidance set out in paragraph 5.8 of the Participant Rules, I do not find the evidence shows the Applicant’s impairments result in a ‘substantially reduced functional capacity’ to undertake social interaction. In particular, there is no evidence that the Applicant is unable to participate effectively in social interaction without assistive technology, requires the assistance of other people to participate in social interaction, or is unable to participate in social interaction even with assistance.

28. I also consider that making a finding that the Applicant experiences ‘substantially reduced functional capacity’ in relation to social interaction would be inconsistent with the evidence that shows she has not engaged with either a psychiatrist or a clinical psychologist, which may improve her functional capacity in relation to the activity of social interaction.

29. I am not satisfied the evidence shows the Applicant’s impairments result in a substantially reduced functional capacity to undertake social interaction.

    Learning

30. The Access Operational Guideline at chapter 8.3 describes learning as including:

    understanding and remembering information, learning new things, practicing and using new skills.

31. Dr ‘E’ reported the Applicant had impairment in concentration due to ‘poorly treated sleep apnoea’ and her ‘low mood’ impacts on the pace and her extent of learning (see paragraph 54). However, he also stated she did not require assistance with learning new information relevant to her day-to-day learning.

32. Ms ‘G’ reported that the Applicant presented with ‘good cognition’ (see paragraph 75). She scored ‘no impairment’ on the WHODAS 2.0 assessment for cognition (understanding and communicating).

33. I am satisfied the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake learning.

    Mobility

34. Mobility is described in chapter 8.3 of the Access Operational Guideline as meaning:

    the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs.

35. In the decision of Madelaine and NDIA the Tribunal stated:

    the threshold requirements to achieve functional capacity in relation to this activity are relatively modest. A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking; a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as movable, not fixed, free to move.

    The use of the phrase move around...to undertake ordinary activities of daily living in the [Access Operational] Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.[91] [emphasis added]

    [91] [2020] AATA 4025 at [104]-[105].

36. The evidence about whether the Applicant’s impairments result in her ‘substantially reduced functional capacity’ to mobilise varied.

37. Dr ‘E’ reported that the Applicant’s psychiatric condition ‘does not impair her mobility’ and any impairment in her mobility is due to her ‘physical health conditions’ (see paragraph 54).

38. Dr ‘F’ opined that the ‘main impact on the Applicant’s mobility and therefore her functional capacity’ is due to her ‘obesity, deconditioning, her chronic degenerative lumbar spine condition’ (see paragraph 63); he also considered that treatment from an exercise physiologist and/or a rehabilitation physician would improve her mobility.

39. Dr ‘A’ and Ms ‘G’ described the Applicant’s functional capacity to mobilise as follows: she can walk 15 metres using a walking stick and mobilise outside her home using a four-wheel walker or driving her car; she can stand for less than 15 minutes; she can transfer in and out of her armchair independently; she can get in and out of her bed independently; she can access the toilet and shower independently with aids; and she can get in and out of her car independently with aids. The Applicant moves around her caravan and annex using a walking stick, and goes up and down the two connecting stairs by holding onto a grab bar.

40. I now consider the Applicant’s functional capacity to mobilise in view of the guidance set out in paragraph 5.8 of the Participant Guidelines and chapter 8.3 of the Access Operational Guidelines.

41. Consistent with the Tribunal’s decision in Madelaine and NDIA, I also consider the ‘threshold requirements’ to achieve functional capacity in relation to mobility to be ‘modest’. I find the evidence shows the Applicant can move about her home with aids, can get in and out of her bed and chair independently, and can access the community with the assistance of her four-wheel walker and car.

42. In making this decision, I note there appeared to be inconsistencies between the Applicant’s reported capacity to undertake activities and her actual capacity to do activities. For example, the Applicant gave extensive oral evidence at the Tribunal hearing about her extremely limited functional capacity to mobilise, her attempts to avoid pain and her inability to do any physical activities that put pressure on her spine. However, during the closing submissions of the hearing, the Applicant was observed to bend forward and down from her armchair and pull her dog onto her lap. It is difficult to know whether these inconsistencies can be explained by fluctuations between the Applicant’s ‘good days’ and ‘bad days’, and/or the clear contrast between the active life led by the Applicant prior to 2016 and her current limited activities.

43. Weighing all the evidence, I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to mobility.

    Self-care

44. The Access Operational Guideline at chapter 8.3 describes self-care as meaning:

    activities related to personal case, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs.

45. Dr ‘E’ reported that the Applicant’s ‘psychiatric condition did not impact on her ability to maintain personal hygiene’ and she would be capable of engaging in activities of self-care such as going to the hairdresser and applying make-up (see paragraph 54).

46. Ms ‘G’ also assessed the Applicant as independent in self-care with aids. The Applicant also reported that she is independent with grooming, showering, dressing, eating, toileting and caring for her health needs.

47. I am satisfied the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake self-care.

    Self-management

48. Self-management is described in chapter 8.3 of the Access Operational Guideline as meaning:

    the cognitive capacity to organise one’s life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem solving and managing finances.

49. The Applicant provided evidence to the Tribunal that she lives alone: she manages her own finances, shops online for groceries and uses a webster pack for her medications. I also note the Applicant underwent a medical assessment to renew her NSW driver license in July 2021; at that time, Dr ‘A’ recorded she had ‘no memory impairment’ (see paragraph 38).

1. There is no evidence before the Tribunal that the Applicant is unable to complete daily tasks, make decisions and manage her finances. I accept that she required the assistance and support of her son and a disability advocate to deal with the complex legal process of the Tribunal hearing. However, I do not consider participation in a three-day Tribunal hearing can be considered an ordinary daily task and note that it is usual for applicants to have representation and/or support to participate in a Tribunal hearing.

2. I am satisfied there is no evidence that the Applicant’s impairments result in a substantially reduced functional capacity to undertake self-management.

3. I find the Applicant’s impairments do not result in her having substantially reduced functional capacity to undertake any of the activities (communication, social interaction, learning, mobility, self-care, and/or self-management) as required by paragraph 24(1)(c) of the Act.

   Paragraph 24(1)(d): do the Applicant’s impairments affect her capacity for social or economic participation?

4. The Applicant is currently in receipt of the disability support pension. I also accept the evidence of Dr ‘E’ that the Applicant’s functional capacity in relation to her social interaction has been affected by her impairment of adjustment disorder with depressed mood.

5. I am satisfied that the Applicant meets the requirement in paragraph 24(1)(d) of the Act.

   Paragraph 24(1)(e): is the Applicant likely to require support under the NDIS for her lifetime?

6. Chapter 8.5 of the Access Operational Guideline states the following:

   8.5 When is a person likely to require support under the NDIS for their lifetime?

   The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(1)(e)).

   If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person's lifetime, despite the variation (section 24(2)).

   The NDIA is required to consider a prospective participant’s overall circumstances and conclude that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and NDIA [2015] AATA 974 at [153]).

   For example, if a person's support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.

   When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person's lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]–[150]).

7. As set out in paragraphs 102–143, I am not satisfied the Applicant’s impairments (lumbar spondylosis with bilateral foraminal stenosis, degenerative disc disease, and facet joint arthritis; chronic pain syndrome; adjustment disorder with depressed mood; severe obstructive sleep apnoea; asthma and COPD) are permanent.

8. In view of the policy guidance set out in chapter 8.5 of the Access Operational Guideline, I consider it would be inconsistent to make a finding that the Applicant, as a prospective participant, is likely to require support under the NDIS for their lifetime in circumstances where I find there are further treatments that may remedy her impairments.

9. This means that I cannot be satisfied the Applicant will require support under the NDIS for her lifetime. Therefore, she does not meet the requirement of paragraph 24(1)(e) of the Act.

   Section 25 of the Act: the early intervention requirements

10. The early intervention requirements are set out in section 25 of the Act. Chapter 9 of the Access Operational Guideline explains the purposes of the early intervention requirements as follows:

    Early intervention support is available to both children and adults who meet the early intervention requirements. The intention of early intervention is to alleviate the impact of a person’s impairment upon their functional capacity by providing support at the earliest possible stage. Early intervention support is also intended to benefit a person by reducing their future needs for supports.

11. I now consider whether the Applicant meets the early intervention requirements.

    Paragraph 25(1)(a): does the Applicant have a permanent impairment?

12. As set out in paragraphs 102–143, I am not satisfied the Applicant’s impairments (lumbar spondylosis with bilateral foraminal stenosis, degenerative disc disease, and facet joint arthritis; chronic pain syndrome; adjustment disorder with depressed mood; severe obstructive sleep apnoea; asthma and COPD) are permanent. It follows that I find the requirement in paragraph 25(1)(a) of the Act is not met.

    Paragraphs 25(1)(b) and (c): will the provision of early intervention support benefit the Applicant by reducing her future needs for supports in relation to disability?

13. Paragraphs 25(1)(b) and (c) require the CEO of the NDIA to be ‘satisfied that provision of early intervention supports for the person is likely to benefit the person’ in various ways. Paragraph 25(1)(b) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by reducing the person’s future needs for supports in relation to disability. Paragraph 25(1)(c) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by mitigating or alleviating the impact of the person’s impairment, preventing the deterioration of functional capacity, improving functional capacity, or strengthening the sustainability of informal supports available to the person.

14. Paragraph 6.9 of the Participant Rules sets out the issues the CEO of the NDIA would consider in relation to whether the provision of early intervention supports is likely to benefit a person under paragraphs 25(1)(b) and (c) of the Act:

    6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:

    (a)the likely trajectory and impact of the person’s impairment over time; and

    (b)the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and

    (c)evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.

15. The Access Operational Guideline at paragraph 9.3 states:

    9.3 Determining whether early intervention supports are likely to benefit the person

    The NDIA must be satisfied that the provision of early intervention supports (except for children with developmental delay) is likely to benefit the prospective participant by:

    ·     reducing the person’s future needs for supports in relation to disability (section 25(1)(b)); and

    ·     achieving one or more of the following four outcomes:

    (i)     mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake one or more activities (section 25(1)(c)(i)); or

    (ii)    preventing the deterioration of such functional capacity (section 25(1)(c)(ii));

    (iii)   improving such functional capacity (section 25(1)(c)(iii)); or

    (iv)   strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer (section 25(1)(c)(iv)).

    When considering whether the provision of early intervention supports is likely to benefit the person, the NDIA should consider:

    ·     the likely trajectory and impact of the person’s impairment over time (rule 6.9(a) of the Becoming a Participant Rules); and

    ·     the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity and in reducing their future needs for supports (rule 6.9(b) of the Becoming a Participant Rules); and

    ·     evidence from a range of sources, such as information provided by the prospective participant or their family members or carers. The NDIA may also in some cases seek expert opinion (rule 6.9(c)) of the Becoming a Participant Rules).

    When considering if a person is likely to benefit from early intervention supports, the NDIA may consider factors such as the time elapsed since the onset or diagnosis of the disability and whether there has been a recent, or impending, significant change in the person’s impairment or disability.

16. There is no medical evidence before the Tribunal to show the potential benefits of early intervention on the impact of the Applicant’s impairments on her functional capacity and reducing her future need for supports.

17. I am not satisfied that early intervention supports will be likely to benefit the Applicant in the ways specified in paragraphs 25(1)(b) and (c) of the Act.

    Subsection 25(3): is early intervention support most appropriately funded or provided through the NDIS?

18. Subsection 25(3) of the Act operates in circumstances where, even if the Applicant meets subsections 25(1) and (2), she may not meet the requirements of early intervention support because the support is not most appropriately funded or provided through the NDIS and is more appropriately funded or provided through other general systems of service delivery or support services, such as through the health system.

19. I find no evidence before the Tribunal that shows the Applicant requires early intervention support that is most appropriately funded through the NDIS. It may be relevant to note that the information provided by NSW Health suggests SASH funding may remain available to the Applicant if she is ‘deemed ineligible’ for the NDIS (see paragraph 30).

20. For these reasons, I find the Applicant does not meet the early intervention requirements in section 25 of the Act.

    CONCLUSION

21. As I am satisfied the Applicant does not meet the access criteria in either sections 24 or 25 of the Act, I find the internal review decision made on 15 November 2019 is correct.

    DECISION

22. The decision under review is affirmed.

I certify that the preceding 206 (two hundred and six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.................................[SGD].......................................

Associate

Dated: 30 March 2022

Date(s) of hearing:	6 - 8 December 2021
Applicant:	In person
Counsel for the Respondent:	Mr Philip Nolan
Solicitors for the Respondent:	Mr Jack Bewsher, National Disability Insurance Agency