The Tribunal sets aside the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and decides in substitution that Mr Beaumont meets the disability requirements for access to the National Disability Insurance Scheme as set out in section 24 of the National Disability Insurance Act 2013 (Cth).

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

NATIONAL DISABILITY INSURANCE SCHEME - access - multiple myeloma - terminal

illness - pain - palliative care - Rule 5.8 - deeming provision - assistive technology and equipment - commonly used items - usually requires assistance - section 24(1)(c) - whether substantially reduced functional capacity - substituted decision.

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

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

Mulligan v National Disability Insurance Agency [2015] FCA 544

Mulligan and National Disability Insurance Agency [2015] AATA 974

National Disability Insurance Agency v Foster [2023] FCAFC 11

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

Madelaine and National Disability Insurance Agency [2020] AATA 4025 (13 October 2020)

National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415

Our Guidelines - Becoming a participant - Applying to the NDIS, 1 February 2024

1. The issue before the Tribunal is whether the applicant, Mr Richard Beaumont, meets the access criteria to be a participant of the National Disability Insurance Scheme ('the NDIS' or 'the scheme') in accordance with section 21 of the National Disability Insurance Act 2013 (Cth) ('the NDIS Act' or 'the Act').
2. Mr Beaumont is a 59-year-old man who was diagnosed in September 2020 with stage 2 multiple myeloma (a type of blood cancer that develops from plasma cells in the bone marrow) with associated thoracic spine fracture and symptomatic lesions.
3. He underwent VRD chemotherapy treatment followed by a bone marrow transplant in April 2021 and has remained on maintenance Lenalidomide (an oral chemotherapy medication). Mr Beaumont experiences chronic pain, fatigue, lethargy, gastrointestinal issues and loss of muscle strength and stability because of his condition and the side-effects of Lenalidomide, oxycodone (opioid medication used to manage pain) and various other medications. As a result, he is no longer able to work and has difficulty managing his 2.5 acre property which he shares with his wife.
4. On 25 May 2023, a delegate on behalf of the National Disability Insurance Agency decided that although Mr Beaumont satisfied the age and residency access criteria, he did not meet the disability requirements under section 24 or the early intervention requirements under section 25 of the Act.
5. On 2 June 2023, Mr Beaumont sought internal review of the original decision pursuant to section 100 of the NDIS Act. On 26 June 2023, the Respondent affirmed the original decision. Mr Beaumont then sought review of the internal review decision by this Tribunal pursuant to section 103 of the NDIS Act on 10 July 2023.
6. The Tribunal held a two-day hearing by video on 19 and 27 March 2024. Mr Beaumont was unrepresented in the proceedings. The Agency was represented by counsel, Mr Kenneally.
7. In arriving at its decision, the Tribunal has considered the various documents contained in the joint hearing tender bundle which was accepted into evidence. This included a set of documents filed by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act') ('T-Documents'), a Statement of Facts, Issues and Contentions prepared by the Respondent dated 17 January 2024[1], various medical documents filed by the Applicant and a report dated 27 October 2023 by Ms Julie Newton, occupational therapist, which she prepared following a functional capacity assessment with Mr Beaumont on 11 October 2023.[2]
8. Mr Beaumont and his wife Mrs Beaumont gave oral evidence at the hearing. Mr Beaumont's general practitioner ('GP'), Dr Logan Shemer, and Ms Newton were also called to give evidence. The Tribunal was assisted by the opening and closing submissions of both parties.
9. Mr Beaumont presented as a frank and honest witness who engaged thoroughly in the hearing process, despite enduring considerable discomfort in order to do so. Prior to his cancer diagnosis in 2020, Mr Beaumont lived an active lifestyle and ran his own wood joinery business, employing between four to six staff members. He stated that he woke regularly at 5:45am and was busy until 7:30pm, running the business and helping to raise three children. He was involved in his local Buddhist community and often engaged in social and recreational activities outside of the home.
10. Following his diagnosis and the resulting pain and fatigue, Mr Beaumont lost much of the independence he previously enjoyed and described himself as a "fraction of the man" he used to be. The Tribunal observed that Mr Beaumont demonstrated a strong desire to remain as active and independent as possible. Ms Newton made similar observations in her report and said at the hearing: "My impression of Mr Beaumont is someone who does value his independence and I can see that he would be probably wanting to do all those things himself until he literally cannot".
11. At the time of his application to the Tribunal, Mr Beaumont's multiple myeloma was in remission. On the 30 January 2024, during a telephone directions hearing, Mr Beaumont advised the Tribunal and the Respondent that his cancer was again active following investigations of increased pain in October 2023. The same day, Mr Beaumont also filed and served radiology reports regarding CT and MRI scans taken by Dr Troy Stapleton and Dr Allan McKenzie dated 9 and 28 December 2023 respectively, which revealed additional lesions and a crush fracture of his T7 vertebra.[3]
12. At the hearing, Mr Beaumont and Mrs Beaumont, reported significant changes in relation to Mr Beaumont's level of pain and its impact on his day-to-day functional capacity. The Tribunal also heard evidence from Dr Shemer that the trajectory of Mr Beaumont's pain and functional impairment is likely to worsen, both during the upcoming treatment phase as well as from the ongoing effects of the disease which is likely to result in further lesions and fractures to his spine. Dr Shemer confirmed that Mr Beaumont's condition is terminal and that palliative care options will be available as the cancer progresses. A week after the hearing, Mr Beaumont was scheduled to have a pelvic biopsy to investigate a lesion in his hip which is causing significant pain. We heard he is likely to commence chemotherapy, immunotherapy and possibly radiotherapy shortly thereafter.
13. The contents of Ms Newton's report were not challenged by either party and the Tribunal accepts that it provides reliable evidence of Mr Beaumont's capacity at the time of his assessment. However, due to the changes in Mr Beaumont's condition, it is clear this report can no longer be relied on as providing a full picture of Mr Beaumont's current functional capacity. The Respondent accepts that Mr Beaumont is a credible witness and that his evidence was consistent with Ms Newton's predictions about a decline to his functional capacity should the cancer return.

1. To become a participant of the NDIS, Mr Beaumont must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:

(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).

1. There is no dispute that Mr Beaumont satisfies the age and the residence requirements. What the Tribunal must decide is whether Mr Beaumont satisfies the access criteria in section 24 ('the disability requirements') or section 25 ('the early intervention requirements').
2. Section 24 of the Act states:

(1) A person meets the disability requirements if:

(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

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

(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

(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.

1. If Mr Beaumont does not meet the disability requirements, the Tribunal must consider whether he meets the early intervention requirements set out in section 25 of the Act which relevantly states:

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

(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 a 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

(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.

1. Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. The relevant rules in Mr Beaumont's case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) ('the Access Rules'), which form part of the legislative framework.

1. In respect of subsection 24(1)(b) of the Act, concerning permanency of an impairment, the Access Rules provide:

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.

1. In respect of subsection 24(1)(c) of the Act, concerning substantially reduced functional capacity, the Access Rules state:

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.

1. The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[4] The relevant Operational Guideline at time of decision is Our Guidelines - Becoming a participant - Applying to the NDIS (1 February 2024) ('the Access Guideline').[5]
2. We also note that in Mulligan[6], Mortimer J held that the legislation pertaining to the access criteria requires "a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted".[7] The Full Court of the Federal Court of Australia in Foster[8] also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[9]

1. For Mr Beaumont to gain access to the Scheme, the Tribunal must be positively satisfied that all the access criteria in either the disability requirements or the early intervention requirements are met. Mr Beaumont carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[10]

1. The Respondent accepts that subsection 24(1)(a) is met and that Mr Beaumont has the following physical impairments flowing from multiple myeloma and its treatment:

(a) Chronic musculoskeletal pain; and > > (b) Fatigue.

2. Mr Beaumont's GP, Dr Shemer, was of the view that Mr Beaumont would benefit from increased psychological support, though it did not appear to the Tribunal that Mr Beaumont sought to claim an impairment based on a psychological condition. There was no evidence before the Tribunal from Mr Beaumont's treating psychologist, who he has seen for approximately 3 years under a Mental Health Plan. Mr Beaumont also considered he needed more psychological support; however, he had not seen his psychologist since late 2023. It was his understanding that he could only access five subsidised sessions per year (rather than the standard 10 sessions routinely available under these plans). While it may be the case that Mr Beaumont would benefit from psychological support to deal with his pain and terminal diagnosis, the Tribunal is satisfied that his impairments for the purpose of subsection 24(1)(a) are confined to chronic musculoskeletal pain and fatigue arising from multiple myeloma and its treatment.

1. The Respondent originally contended in its Statement of Facts, Issues and Contentions (SFIC), dated 17 January 2024, that Mr Beaumont's impairments were not permanent, as distinct from his condition of multiple myeloma. It was submitted that Mr Beaumont has undergone some treatment for his impairments, but there was insufficient evidence available for the Tribunal to be positively satisfied that there are no available, evidence-based treatments likely to remedy his pain and fatigue.
2. However, the Respondent's position on this issue changed as a result of evidence given at the hearing, in our view appropriately. We agree with the Respondent's concession that Mr Beaumont's relevant impairments are now permanent. We note those treating Mr Beaumont are taking a multidisciplinary treatment approach, which to a large extent is being overseen and co-ordinated by Dr Shemer. The evidence before us establishes that Mr Beaumont is receiving appropriate treatment, including pain management, and we are satisfied his condition is being medically managed and treated as well as it can be given its seriousness and severity.

Social and Economic Participation - Subsection 24(1)(d)

1. The Respondent also accepts that subsection 24(1)(d) of the Act is met. Mr Beaumont is no longer able to work and reported a significant reduction in his social participation including attendance at Buddhist meetings and social gatherings with his wife and friends. We agree that this is an appropriate concession, and we are satisfied Mr Beaumont meets subsection 24(1)(d).

1. The Respondent contended that subsection 24(1)(e) of the Act only arises for consideration if the Tribunal finds that the other criteria in subsection 24(1), especially paragraphs (b) and (c) are met. This is because where a person's impairment is not permanent or does not result in a substantially reduced functional capacity, the Tribunal could not be satisfied that "the person is likely to require supports under the [NDIS] for the person's lifetime".
2. During the second day of the hearing, counsel for the Respondent indicated that they would concede subsection 24(1)(e) is met if the Tribunal found that Mr Beaumont's impairments satisfied subsection 24(1)(c) regarding substantially reduced functional capacity. Again, we consider this an appropriate concession, and we are satisfied Mr Beaumont will need lifetime NDIS assistance if we find he has substantially reduced functional capacity.

SUBSTANTIALLY REDUCED FUNCTIONAL CAPACITY - SUBSECTION 24(1)(C)

1. The sole remaining issue for the Tribunal to determine under section 24 is whether Mr Beaumont's impairments, namely musculoskeletal pain and fatigue, result in substantially reduced functional capacity in at least one of the six functional domains of communication, learning, self-care, self-management, social interaction and mobility.
2. Broadly speaking, the Respondent accepts that Mr Beaumont has certain reduced functional capacities in one or more of the activities listed in subsection 24(1)(c). However, the Respondent contends that Mr Beaumont does not have substantially reduced functional capacity in any of the domains. Mr Beaumont submits that he has substantially reduced functional capacity in the domains of mobility, self-care and social interaction.
3. The test in subsection 24(1)(c) is one of objective functional capacity and requires the Tribunal to consider both what the person can and cannot do.[11] A subjective comparison between what a person could do before the onset of their disability and their function currently is not, in the Respondent's submission, the appropriate yardstick. The Tribunal must also distinguish between what the person does not do, as opposed to what they cannot do.[12]
4. The Respondent contends that Mr Beaumont may experience pain doing certain things, but this does not mean he meets the threshold of a substantial reduction in functional capacity. It was submitted in its SFIC that management of Mr Beaumont's pain is a separate consideration.[13]
5. The Tribunal is not persuaded that management of Mr Beaumont's pain is an entirely separate consideration. It is precisely the operation of pain on his body, including the registering of that pain by Mr Beaumont's brain which is at the heart of this inquiry as to whether Mr Beaumont can be said to have substantially reduced functional capacity. Pain brings to bear an additional psychological element to the physical impairment of fatigue in the context of a weakened musculoskeletal system caused by fractures and lesions. It is, by its very nature, both physical and psychological and can interfere with a person's capacity to undertake tasks that result in severe pain, even in circumstances where the physical body still retains the theoretical functional capacity to execute certain movements. In our view, there is clearly a limit to the amount of suffering a person can endure before a particular task or activity becomes effectively impossible for them in a practical sense. We also consider there will inevitably be an individual and subjective element to this inquiry. An objective, theoretical capacity (based on scans, for example) will not necessarily translate into actual functional capacity in the case of a particular individual.

1. Mr Beaumont explained that the original impetus for his application for access to the NDIS was to obtain some assistance with gardening and to help cover the costs associated with fortnightly physiotherapy and some extra psychological support. In his evidence, Dr Shemer said Mr Beaumont needed travel support to attend medical appointments and occupational therapy to help maintain his functioning in the home, and which would reduce pressure on Mrs Beaumont.
2. As we have alluded to above, on the first day of the hearing, Mr Beaumont told the Tribunal that a chest infection in October 2023 and noticeable pain in his left scapula led to further medical investigations. In December 2023, CT and MRI scans revealed active myeloma. He explained that while it is not present in his blood or bone marrow, he has multiple lesions throughout his skeleton and that "his bones are being eaten out". Mr Beaumont also has a crush fracture in his T7 vertebra, a lesion in his left scapula and a large lesion in his right hip, which needs to be investigated.
3. He expects to shortly commence eight x 3-week sessions of chemotherapy and immunotherapy. Radiotherapy might be used on his T7 vertebra to relieve pain. Dexamethasone (cortisone-like medicine or steroid) may also be prescribed for the pain; however, this severely interrupted his sleep when prescribed in the past.

1. As a result of these changes to his condition, Mr Beaumont said his impairments, namely pain and fatigue, had increased significantly since October 2023. As a result of pain, Mr Beaumont described greater difficulty completing certain tasks or movements and said he constantly looks for ways to take the pressure of his back and avoid pain. For example, he described difficulty bending over and said if he dropped something, he must go down to pick it up in a certain way because he is worried the "bones will snap" while bending and that any sudden movement to his back causes significant pain. He also said: "I know I'm not quite there yet because I don't want to admit it, but I know that theoretically I'm going to be so close to being wheelchair bound, but I don't want to be, so I don't even really entertain it as an option at this stage."
2. Mr Beaumont currently takes Targin 20mg slow release twice daily; one in the morning and one in the evening. He may also take Endone 5mg quick release PRN for break through pain when required. Both Targin and Endone (oxycodone) are prescribed opioid pain medications.
3. Mr Beaumont was adamant he did not want to "climb the opiate ladder". He said oxycodone makes him drowsy, causes brain fog and bowel issues including constipation. He experiences nausea from other medications.
4. In describing the utility of oxycodone, Mr Beaumont said "the pain is never gone". The oxycodone "puts the pain a bit more into the background" and stops "the high peaks of pain". It doesn't allow him to walk any further, just with less discomfort.
5. Mr Beaumont has resisted taking a higher dose of Targin - up to 30mg twice daily, suggested by his GP, Dr Shemer, because he thinks the side-effects, such as brain fog, would reduce his functional capacity. He explained that if he has a busy day of appointments, such as a scan at the hospital, he will sometimes take an Endone in the morning in addition to the Targin. This allows him to withstand the pain associated with the extra activity of travelling to the hospital and undergoing procedures. He submitted, convincingly in the Tribunal's view, that while extra pain medication might increase his physical functional capacity on those busy days, the side effects of brain fog and fatigue outweigh its utility on normal or less busy days.
6. Under cross-examination by counsel for the Respondent, Mr Beaumont confirmed that he would have been taking either Targin 10mg or 15mg twice daily when he travelled to the UK to see his relatives in June 2022. He said his pain is now much worse, particularly since the collapse of his T7 vertebra which occurred in late 2023. He believes he increased his Targin dose to 20mg in January 2023 because he was having to top up with Endone once or twice a day. It was around this time that Dr Shemer suggested he increase his Targin dose to 30mg.
7. Mr Beaumont uses medicinal cannabis and alcohol in the evenings as a strategy to manage pain and avoid the associated side-effects of being "zonked out" from the frequent use of opioids. He said that he never drinks or smokes cannabis during the day. As such, it does not interfere with his ability to do things between 12pm to 4pm which is the most active part of his day. He sometimes still needs Endone in the evenings to manage pain.
8. Mr Beaumont explained he attended a pain management clinic, a psychologist and the 'drug and alcohol people' at the time of his diagnosis in late 2020. He said he would be seeing them all again at the Cancer Care Centre in Nambour as part of his upcoming chemotherapy. He will be discussing radiotherapy and pain management with his haematologist Dr Manjunath Narayana. Mr Beaumont said he was "pretty cluey" about what treatment is available, how it affects him and his pain management choices.
9. Mr Beaumont consumes approximately five or six standard drinks per night over a five-to-six-hour period, which is a reduction from the seven standard drinks he reported to Ms Newton in October 2023. Usually, he consumes three wine tonic spritzers, two vodka tonics and one nip of whiskey. He said the doctors check his liver and haven't advised him that it's detrimental.

1. In her report, Ms Newton said Mr Beaumont described his pain as "present 7 days per week, in a constant and continual form, which progresses over the course of the day".[14] She expressed the opinion that "Mr Beaumont does not demonstrate deconditioning or self-limiting behaviours in relation to his self-care activities".[15]

1. Dr Shemer has been Mr Beaumont's treating GP since October 2023 when his previous GP, Dr Robert Tuffley retired. Prior to Dr Tuffley's retirement, there was a bridging period from June 2023 when Dr Shemer was involved in Mr Beaumont's care. He sees Mr Beaumont about once per month.
2. Dr Shemer said he is aware of the problems with the evening control of Mr Beaumont's symptoms and associated psychological strain. In relation to the quantity of alcohol consumed, he stated: "It's probably a little bit high for my liking but if I was in his situation I would probably respond in a similar manner". Dr Shemer confirmed he was aware of Mr Beaumont using medicinal cannabis and doesn't think it compromises his treatment nor impact Mr Beaumont's decision not to increase his night-time Targin dose.
3. Dr Shemer confirmed Mr Beaumont's disease had been reasonably stable until changes in symptomology, specifically pain, resulted in further investigations by his haematologist in late 2023. These investigations revealed the disease was active again and will require further treatment. This will include a combination of chemotherapy, immunotherapy and possibly radiotherapy to active lesions. It is hoped this will result in a stabilisation of his chronic condition. Dr Shemer explained the treating team are no longer in the first and second line of treatment and as they move down the treatment line, the disease becomes more resistant, and the response can be unpredictable. He believes Mr Beaumont's cancer was more advanced than stage 2, advising the planned interventions were not curative treatment.
4. Pain was described as the primary issue for Mr Beaumont, along with fatigue and lethargy from the disease and treatment. Dr Shemer said, "as the disease progresses, his pain experience will get worse". The treatment attempts to improve Mr Beaumont's bio-chemical status; however, it will not improve his functional capacity or quality of life. If his opioid dose is increased, Mr Beaumont might have a mild to moderate improvement to pain but it's more likely he will experience side effects which outweigh the benefits of analgesia, including his ability to maintain quality of life.
5. Dr Shemer expressed concern about Mr Beaumont driving longer distances in terms of being able to manage pain and discomfort. He said he believed Mrs Beaumont was providing Mr Beaumont with a significant degree of assistance to "achieve daily living", for example, by driving him to medical appointments.
6. Dr Shemer emphasised that quality of life cannot just be assessed from a functional point of view, but also a cognitive, emotional and social point of view. In the context of treating palliative patients, he said sedation, constipation and malaise were side effects some patients are not willing to suffer. Palliative care will be available to help optimise Mr Beaumont's pain management and other complications of treatment as the disease progresses.

1. The following evidence was presented during the proceedings in relation to Mr Beaumont's functional capacity.

1. Ms Newton's report considered Mr Beaumont's functional capacity with respect to mobilising. She commenced her assessment of him at 12pm, which is his most active part of the day. As mentioned above, the contents of Ms Newton's report were not challenged by either party and the Tribunal accepts it as an accurate assessment of Mr Beaumont's functional capacity at the time, with his capacity getting worse, rather than better, since that time.
2. Her report uses the categories of home, community, transfers and sitting tolerance, stair mobility and falls history to assess mobility. Ms Newton concluded that all categories except falls were 'difficult' for Mr Beaumont based on her observations of him performing daily activities, the completion of standardised assessments and information gathered from speaking with him.[16]
3. Ms Newton reported the following[17]:

Home - Mr Beaumont described being in constant pain, he mobilises within his home independently, however, will steady himself by hanging onto furniture. > > Community - Mr Beaumont mobilises independently albeit with difficulty. He previously used walking sticks or his wheelchair for community access. He stated he rarely uses these mobility aids. > > He can walk approximately 200 to 400 meters before he requires a break secondary to pain. Notably he reported his pain is at the base of his neck. He will rest for 5 to 10 minutes before resuming. > > Mr Beaumont will drive within the local area. He stated he can drive to Sunshine Coast University Hospital which is approximately 40km away. He described his tolerance for driving has increased over the last year, however he would drive no further than this. > > Transfers, sitting tolerance - Can transfer independently, although his pain may interfere with transfers and make him 'catch his breath'. > > Mr Beaumont reported he has limited sitting tolerance on backless chairs (e.g., stools). He described how he uses cushions to support his back and assist with his positioning. He identified prolonged sitting will increase his stomach pain and discomfort. He will use cushions when sitting on the couch and in the car. > > Stair mobility - Paces himself on flights of stairs, and always uses the handrail to steady himself. > > He demonstrated he was able to independently mobilise on the 3 steps within his house. > > Falls history - Mr Beaumont stated he has not experienced any falls. He reported experiencing dizziness at times, along with his decreased bone density puts him at high risk for injury should he suffer a fall.

4. Ms Newton also reported Mr Beaumont will go to the grocery store with his wife, however, he will generally sit and wait for her to complete the shopping.[18]
5. In his oral evidence, Mr Beaumont provided the following information with respect to his current mobility around the home:

(a) He does not use mobility aids and can get around the house, however he must hold onto furniture in the house to relieve pain and allow him to move around. > > (b) He has trouble bending down and if he drops something, he needs to pick it up in a certain way. > > (c) He can get in and out of chairs, using his hands to lower himself and propping himself up with pillows for support. > > (d) He can ascend and descend up to five steps. He thought he might be able to navigate 10-12 steps but did not provide a recent example. > > (e) He hasn't had any falls since his diagnosis. Occasionally he gets dizzy but no more than a couple of times per week. > > (f) He can get in and out of bed but must manoeuvre in a certain way to complete the task. > > (g) Due to a combination of pain and hot weather, Mr Beaumont has not done any woodwork in his shed (located some distance from the house) since about October 2023. If he took an Endone (5mg PRN) to manage pain, the effects of the medication on his cognition would make it unsafe for him to operate any machines with spinning blades.

6. Mr Beaumont provided the following evidence with respect to his mobility in the community:

(h) He has a light-weight folding chair and cushion in the car for occasions when the car is parked a distance away from the ultimate destination. He said he could carry the lightweight chair himself (which was later disputed by Mrs Beaumont). > > (i) He can walk about 100 to 200 meters but then needs to rest by leaning against something or sitting down. > > (j) He can drive 7-10 minutes to Noosaville where his GP, physiotherapist, pharmacy and local shops are located. He would drive to Noosaville about once or twice a fortnight. He is always careful about the side-effects of his medication when deciding to drive. > > (k) If he goes to the supermarket with his wife, he needs to lean against something or sit down after 10 minutes. > > (l) He can only carry very light items, like toilet paper. > > (m) His ability to stand still, for example, in a queue, is "less than 5 minutes". > > (n) He can walk around the hospital but needs to sit down or lean regularly. > > (o) He thought he could drive to the hospital 60km away "at a pinch, at a push, depending on the day" and how much oxycodone he'd taken. He was unsure of the state that he would arrive in and whether he would be capable of doing anything at the hospital if he drove himself. When asked if he could drive to the hospital for a procedure and then home the same day, he said no. > > (p) His wife generally drives him to the hospital. He could not recall a time in 2024 that he had driven himself. Once he commences chemotherapy, his wife will have to drive. > > (q) He lives in a regional location and does not use public transport, though there is a bus stop located near his property.

7. Mrs Beaumont gave evidence that Mr Beaumont could walk for about 5 minutes or 100 meters if the footpath was flat before needing to sit down. Sometimes he may be able to walk a little further after resting, but this was less frequent now. In her estimate, Mr Beaumont could walk by himself for about 100 meters after driving to the local shops. Mrs Beaumont disputed that Mr Beaumont was able to carry the light-weight aluminium chair and said she carries it when they are out in public. She thought he feels slightly embarrassed about using the chair in public. She has noticed that he is finding it hard to get in and out of one of their cars which is lower to the ground. He can get up and down the steps in the house but leans on furniture when moving around the house. Mrs Beaumont said he wouldn't be able to go on the bus in his condition and that, in any event, that bus doesn't go the hospital.
8. The Tribunal had the impression that Mr Beaumont had a slight tendency to over-estimate his functional capacity at times, using what he previously could or thought he should be able to do as the basis for his answers to questions rather than concrete examples of recent functional capacity. This is not at all intended as a criticism of Mr Beaumont; rather it reflects a trait consistent with his determination to remain independent for as long as possible. For this reason, we prefer Mrs Beaumont's evidence in relation to the use of the aluminium chair and the local bus.
9. The Tribunal otherwise accepts that the evidence of Mr Beaumont reflects an accurate picture of his current functional capacity in the domain of mobility.

1. At the time of his assessment, Mr Beaumont reported to Ms Newton being capable of completing most of the cleaning activities within the home. However, he spread the cleaning tasks over the week and did small bursts of activity. He shared pool maintenance responsibilities with his wife. She did most of the laundry tasks, but Mr Beaumont assisted hanging out lighter pieces of clothing depending on his pain.
2. Mr Beaumont said he is currently able to do some cleaning, such as vacuuming one room, but would need to lean or sit down after five minutes to rest. He can load or unload the dishwasher using modified movements, put clothes in the washing machine, put clothes away in drawers, wipe down the benches, and tidy the kitchen. He will often leave the dishes after the evening meal until the following afternoon when he clears them ahead of his wife preparing dinner.
3. Due to current levels of pain, particularly in his left shoulder / scapula, he finds it difficult to hang out clothes particularly as they are heavier when wet (Mrs Beaumont clarified in her evidence that they have a clothesline on their back deck which is elbow height). He can use a light-weight swisher (mop) to clean up after their new puppy if it has an accident. In relation to cleaning tasks, he said that while he does these activities, they "take it out" of him and cause "unnecessary discomfort". He later clarified that when he uses the term discomfort, he means pain.
4. Prior to her oral evidence, Member Bean provided Ms Newton with a summary of the changes to Mr Beaumont's reported levels of pain and functioning. Ms Newton opined that the new fracture would explain a lot of the pain and she thought Mr Beaumont's report of current functional capacity was consistent with the changes to his condition. It was conceded by Ms Newton under cross-examination by Counsel for the Respondent that her opinions, as expressed before the Tribunal, were an educated guess based on what she had been told. The Tribunal accepts that Ms Newton would need to conduct a new functional assessment, including direct observations, to update her report and express new opinions with any precision. Nevertheless, the Tribunal also notes that her report made predictions about Mr Beaumont's functional decline should the cancer return. She wrote: "I am of the opinion that Mr Beaumont will require extensive support with all aspects of his self-care and self-management once his cancer progresses". The Tribunal takes Ms Newton's oral evidence no further than this.
5. Mrs Beaumont gave evidence that she does the bulk of the vacuuming, and that Mr Beaumont would be unable to vacuum more than one room over the course of a day. She hangs out the laundry and prepares the evening meal.
6. The Tribunal accepts that Mr Beaumont can only vacuum one room of the house per day and that it requires a high degree of effort. Accordingly, in the Tribunal's estimate, it would take Mr Beaumont the best part of one week of significant daily effort to vacuum his entire house. This, of course, would not include all the other basic cleaning tasks (some of which he does) that usually need to be completed by households on a weekly basis such as:

(a) mopping floors

(b) doing the dishes / using the dishwasher

(c) cleaning kitchen benchtops

(d) hanging out laundry

(e) cleaning the toilet

(f) cleaning the shower

(g) cleaning the bathroom vanity

(h) changing bedroom linen.

1. Mrs Beaumont gave evidence she cleaned the bath after Mr Beaumont used it. While Mr and Mrs Beaumont were not directly questioned about who cleaned the bathroom regularly, it is inferred from Mrs Beaumont's evidence that she cleaned the bath because Mr Beaumont was unable to. This inference is consistent with Mr Beaumont's evidence that bending over is increasingly very difficult, even for short periods and that he experiences dizziness. As mentioned at paragraph 39 of this decision, he is worried the "bones will snap" while bending and that any sudden movement to his back causes significant pain. It is also consistent with Ms Newton's report where she states: "I opine as his condition progresses he will likely experience further functional limitation, deterioration and subsequent exacerbation of his symptoms.[19]
2. Similarly, we are satisfied on the evidence, including his very limited standing capacity, difficulty bending over, inability to carry the lightweight chair or heavier grocery items, use of modified movements to stack the dishwasher and fatigue that Mr Beaumont would be unable to undertake all the cleaning tasks stated above at paragraph 70 with the frequency, duration and mobility required to keep his home in a hygienic and clean state. While he can do light cleaning and tidying, there are significant limits to what Mr Beaumont can do which will have a cumulative effect over time on the cleanliness and hygiene of his home. In effect, the only reason that Mr Beaumont's house remains clean and tidy is because Mrs Beaumont is doing a large share of the cleaning tasks, such as the laundry and vacuuming, as he does not have the functional capacity to do it.

1. During his assessment with Ms Newton, Mr Beaumont said he can prepare himself breakfast and snacks, and that his wife prepared the main evening meal. He was independent with eating but due to his dentition, requires a soft diet and cuts his food into small pieces. He would also attend the grocery store with his wife but would generally sit and wait for her to complete the shopping.
2. Mr Beaumont currently remains independent with eating but has lost weight due to nausea from medication and a loss of appetite.
3. He told the Tribunal he attends the local shops independently about once or twice per fortnight to purchase a small number of items. He will accompany his wife to do the larger grocery shop on occasion but said he would need to lean against something or sit down after 10 minutes. Mr Beaumont said that it is uncomfortable for him to stand for any more than five minutes, and he will sit down while his wife stands in a queue. He cannot carry heavy shopping bags but can push a trolley and carry light items like the toilet paper.
4. When asked by the Tribunal how Mr Beaumont would cope if she was in hospital for 4 weeks, Mrs Beaumont thought that would present a "serious problem". Mrs Beaumont would ask her son who lives locally to help, as Mr Beaumont would need support with cleaning, meals and travel to medical appointments. She thought Mr Beaumont could cope for a few days and she had left him overnight previously when caring for another family member. She agreed with propositions put by Counsel for the Respondent that Mr Beaumont would be able to order groceries online, heat pre-prepared meals, prepare his cereal for breakfast and make a sandwich for lunch. With respect to ordering groceries online, we are not confident Mr Beaumont would be able to retrieve groceries from where they were left, or to put all of them away within a reasonable timeframe given his evidence that he can only carry light items and bending down is very difficult.

1. With respect to looking after his health care needs, Mr Beaumont can drive the 7-10 minutes to his local GP, physiotherapist and pharmacy and attend those appointments independently. At the time of his assessment, Mr Beaumont could drive himself to medical appointments at the Sunshine Coast University Hospital, indicating "his tolerance for driving had increased over the last year, however he would drive no further than this". He told the Tribunal the hospital was located 40km away, however Google maps reveal it to be approximately 60km from his home. This is consistent with his evidence that it can take up to one hour to travel each way. The Cancer Clinic in Nambour (where he also attends) is located about 36km away, or a 30-minute drive. Mr Beaumont said it is physically taxing to sit in the car for the two-hour return trip to the Sunshine Coast University hospital.
2. Noting the evidence at paragraph 61 of this decision, the Tribunal finds that Mr Beaumont can independently attend upon his GP, physiotherapist and pharmacy which are all located about a 7-10 minute drive away.
3. However, we find he is currently unable to drive by himself to the hospital located 60km away where he attends essential medical appointments. The evidence suggests he has been unable to do this since the start of the year despite his claim that he might be able to complete the drive "at a pinch". The Tribunal is not confident Mr Beaumont would be in a fit state to undergo a procedure or engage effectively with his treating team if he managed to get himself to the hospital, and we are satisfied from the evidence that he would be unable to drive himself home following an appointment due to pain and fatigue. We note the evidence that Mr Beaumont sometimes takes PRN oxycodone to withstand the pain of interventions at his hospital appointments and this would also impact his ability to drive home safely.

1. At the time of his functional assessment, Mr Beaumont told Ms Newton that he was independent with all personal care activities. He reported he will sit on a shower chair to dry himself after his shower and paces himself when completing grooming, dressing and toileting. Mr Beaumont was able to manage his own medication and reported that he was sleeping well, though pain impacted his movement in bed.
2. Mr Beaumont confirmed to the Tribunal he is still independent with respect to grooming, showering, and dressing himself. He is very slow in the mornings, requiring approximately two hours for his stomach to settle (owing to the various medications) and to get ready for the day. His most active time of the day is between 12pm to 4pm.
3. Mrs Beaumont told the Tribunal that Mr Beaumont now wears slip on shoes and that she is not sure how he would manage to pull on socks. He can get in and out of bed independently, but it takes time.

1. Mr Beaumont currently potters in the garden. He tried to rake some leaves for 5-10 minutes a few days prior to the hearing. He could weed a small patch of ground by sitting on a cushion. He can pick up the odd stick or palm frond. He said he was not able to do any gardening activity for more than about five minutes without a rest. He helps maintain the pool, but his wife must do the heavier tasks such as carrying and lifting the pool salt.
2. When questioned by counsel for the Respondent whether he could do two 5-minute blocks of gardening activity with a break in the middle, Mr Beaumont said he might, but it would depend on how he felt. He later told the Tribunal that he had been guilty of pushing pain limits in the past but sometimes wanted to feel like he had "done something". It was unclear to the Tribunal whether Mr Beaumont could currently perform two 5-minute blocks of gardening activity with any regularity or consistency.
3. Mrs Beaumont said he can pick out a few weeds in the garden. She doesn't like it when he picks up sticks in the garden because she is nervous that a long bone may snap under pressure. She feels she needs "to be more watchful" of him but also conceded he has not had any falls since his cancer was first diagnosed.
4. Mr Beaumont was questioned about his letter to the Agency on 2 June 2023 where he noted he was able to perform 2-3 hours of physical activity about four days per week.[20] During this period, Mr Beaumont confirmed he was able to spend significantly more time in the garden, including sitting on the ground weeding. However, his inability to properly maintain his garden at that time, which consists of tens of palms, large trees and significant lawn, prompted his application for NDIS support. It is accepted by the Tribunal that changes to his condition have increased his pain and reduced his functional capacity since his original application to the NDIA.
5. The evidence supports the view that Mr Beaumont's capacity in the garden is limited to pottering: pulling a few weeds in a seated position, picking up some sticks or a palm frond, or raking a few leaves for around five minutes duration. He thought that on a 'good day' he could use the ride-on-mower, though it was unclear when he last performed this task. Mr Beaumont told the Tribunal that his son had recently visited and mowed the lawns for him.
6. Due to pain and fatigue, he cannot use a whipper snipper, trim bushes, use a push mower, manoeuvre wheelie bins, clear the large volume of palm tree fronds or falling eucalyptus sticks or keep on top of the weeding.

1. As we have noted above, in determining whether Mr Beaumont meets subsection 24(1)(c), the Tribunal is bound to apply the legislation as enacted, including the NDIS Access Rules. The Access Guidelines form part of the NDIA's policy framework, and to the extent they are consistent with the Act, should be applied unless there is good reason not to do so.[21]
2. In Mulligan,[22] Mortimer J explained that rule 5.8 of the Access Rules is a deeming provision; that is, if a person's circumstances are caught by its terms, they must be taken to have a substantially reduced functional capacity for the purposes of subsection 24(1)(c). However, her Honour made clear that considering a person's circumstances through the prism of rule 5.8 is only part of the statutory task. If the deeming provision is not met, the decision maker must proceed to consider whether, regardless of rule 5.8, a person's functional capacity is substantially reduced in any of the six domains of activity.[23]
3. Accordingly, the Tribunal's first deliberate task is to determine if Mr Beaumont's circumstances are captured by the deeming provision. If the Tribunal finds the deeming provision does not apply, it must then consider the evidence before the Tribunal regarding his functional capacity in each domain and determine whether he meets the statutory threshold. The Access Guidelines naturally inform this task.
4. As we consider the domains relied on by Mr Beaumont are the relevant domains in his case, we will limit our consideration to the domains of social interaction, self-care and mobility.

1. The Respondent contends that Mr Beaumont has the capacity for social interaction and the ability to access situations that lead to social interaction. Mr Beaumont told Ms Newton that he was not as social as he was prior to his diagnosis, and he was self-conscious about the impact of the medication on his teeth. Mr Beaumont explained to the Tribunal that pain affects his desire and ability to attend social gatherings and engage with people, particularly in the evening. In his view, his ability to socialise has been substantially reduced.
2. Mr Beaumont usually attends a monthly Buddhist meeting and had attended such a meeting from approximately 11am until 2pm a week or two prior to the hearing. This involved attending a group member's home and sitting on a sofa with pillow support for his back. He attended a wood-working group on three occasions but found it difficult and elected not to continue as he had wood-working tools at home. Mr Beaumont would like to do trivia at the local pub but is unable to do so due to increased pain and fatigue in the evenings when these events are held. He speaks with his children on the phone and interacts with them when they visit. He can also communicate with relatives in the UK using WhatsApp.
3. Mrs Beaumont said they had both previously been involved in beach clean ups and enjoyed attending concerts together, but Mr Beaumont could no longer participate in these community activities. He couldn't join her on bush walks and bird watching/photography excursions due to pain and the inability to mobilise beyond 100 meters before needing to rest.
4. In her oral evidence, Ms Newton told the Tribunal: "His impairment in social interaction is not because of a lack of skill at interacting, it's the impact of his condition on his ability to interact". She further stated: "It's not that he can't interact, it's the effect of his pain, of his limited mobility, of his limited sitting tolerance, limited walking tolerance that impact his ability to interact." Ms Newton noted Mr Beaumont did not display any behaviours of concern, however she explained pain can be all consuming and it can make it hard to focus on conversations with others.
5. The Access Guideline refers to socialising as "how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations". Mr Kenneally submitted on behalf of the Respondent that this domain requires the Tribunal to focus primarily on the skills of social interaction, not the opportunity to exercise the skills. In his submission, Mr Beaumont can still achieve social interaction, even if such interactions have reduced because of his physical impairments.
6. The Tribunal accepts that there has been a major change to the Mr Beaumont's social life and that his experience of pain prevents him from participating in many of the social activities which he previously enjoyed. It has also meant that Mr and Mrs Beaumont are no longer able to do many of the recreational and voluntary activities that they shared together. The Tribunal was left with no doubt that pain significantly impacts Mr Beaumont's desire to seek out social interactions with friends and other members of the community. Particularly in the context of a terminal diagnosis where one might be expected to seek support from social networks, the limits on Mr Beaumont's ability to socialise undoubtedly exacerbate his feelings of frustration about a life that is increasingly constricted.
7. However, the Tribunal is satisfied that Mr Beaumont has the underlying ability and personal skills to socially interact. There is no evidence that the Mr Beaumont has difficulties in behaving within the social limits accepted by others or an inability to understand social cues. He maintains relationships with his wife, children, and members of his local Buddhist community. It appears that he interacts regularly and appropriately with various members of his treating team and attends on the pharmacist or local shops by himself about once per week without cause for concern about his interactions. He also engaged appropriately with Ms Newton, Dr Shemer, Mr Kenneally and the Tribunal in relation to these proceedings. For these reasons, the Tribunal finds that rule 5.8 does not apply as he does not require assistive technology, equipment or assistance to socially interact. Further, the evidence does not support a finding more broadly that Mr Beaumont has a substantially reduced functional impairment with respect to social interaction.

1. For reasons which will become apparent below, the Tribunal considered it artificial to separate our discussion of Mr Beaumont's functional capacity in the domains of mobility and self-care, as many of the limitations pertaining to Mr Beaumont's self-care arose because of mobility issues.
2. The Access Guideline describes self-care as "personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bath, eat or go to the toilet".[24] Self-management is described as possibly including 'day-to-day' tasks at home, however it notes the Agency's focus is on a person's "mental or cognitive ability to manage [their] life, not [their] physical ability to do these tasks".[25]
3. While some domestic tasks could be considered within the domain of self-management, the Tribunal considered them in the context of self-care in this case. This is because it is Mr Beaumont's physical impairments, rather than any cognitive or psychosocial impairments, which affect his capacity to perform certain tasks, particularly around the home, including cleaning, laundry, meal preparation, pool maintenance and gardening.[26] It is Mr Beaumont's physical impairments which also impact his mobility, or moving around which is described as "how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs".[27]
4. The Respondent accepts that Mr Beaumont experiences some reduction in his capacity for self-care because of his impairments but contends that there are no significant gaps in his capacity to maintain his personal health, safety and well-being. Similarly, the Respondent accepts that Mr Beaumont experiences some reduction in his capacity for mobility because of his impairments, however it does not consider this reduction to meet the threshold of substantial.

Is 'self-care' or 'mobility' captured by the deeming provisions of rule 5.8

1. Rule 5.8 prescribes circumstances or criteria to be applied in assessing whether Mr Beaumont's impairments result in a substantially reduced functional capacity to undertake self-care or mobility.[28]
2. The Full Court of the Federal Court of Australia in Foster noted that:

[t]he Guidelines are merely administrative 'tools'. They do not provide a legislative definition of the relevant activities. They do not control the meaning of the phrase "substantially reduced functional capacity". Nor do they alter the threshold criteria for when a person meets the disability requirements as specified in s 24(1) of the NDIS Act. They are not the equivalent of statutory provision and are not to be construed in like manner: Australian Prudential Regulation Authority v TMEffect Pty Ltd [2018] FCA 508; 76 AAR 540 at [59] per Perry J. Rather they provide non-exclusive content to the range of "tasks and actions" (as referred to in r 5.8) that comprise the "activities" the NDIA is required to consider, consistent with the legislative history, context and purpose.[29]

3. Foster decided that it was an error to apply the NDIA's guidelines in a way as to equate a person's inability to undertake one task forming part of "self-care" (in that case, toileting) and to deem this to be the relevant activity for which functional capacity was required to be assessed. Katzmann, Perry and Derrington JJ observed that:

In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do. > > Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of "self-care", the Tribunal applied the Guidelines in such a way as to equate Mr Foster's impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.[30]

4. For present purposes, the Tribunal is required to consider the bundle of tasks and actions which form the concepts of self-care and mobility. Within these bundles, we must consider the tasks that Mr Beaumont can do and those that he can't do because of his impairments. As every applicant's circumstances are different, the assessment must be practical and applied to the relevant circumstances of the individual applicant concerned. For example, in the case of Mr Beaumont, gardening is a relevant task which we must assess as part of his day-to-day life and responsibilities.

**_Rule 5.8(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

1. There are two key questions that must be considered when assessing whether Mr Beaumont has substantially reduced functional capacity as per rule 5.8(a). The first question is to consider what it means to say someone is unable to participate effectively or completely in mobility. The second is to determine what is meant by assistive technology or equipment (other than commonly used items such as glasses) and whether it could be said Mr Beaumont uses either. The issue of home modifications was not raised in the proceedings.
2. In Foster, their Honours held that "[i]n the overall legislative scheme, the adverb 'completely' appears to be redundant, and in any event, unachievable".[31] For this reason, the word 'effectively', should be the focus and is taken to mean "serving to effect the purpose; producing the intended or expected result".[32] We note it is possible that the adverb 'completely' was intended to direct attention toward the breadth or range of activities falling within the relevant domain, while 'effectively' could be seen to be directed to a more qualitative assessment. However, we defer to and are of course bound by the construction arrived at by the Court.
3. In their Honours view:

The proper construction of the phrase "effectively and completely" in r 5.8 is informed first by the NDIS Act, pursuant to which it was made. As the Full Court said in National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415 at [138]: > > In dealing with legislation such as the Act, a number of particular considerations should be remembered. First, the subject matter of the NDIS legislation is unique, as is its structure: it embeds an approach to the support of persons with disability which was previously non existent. In its structure, it does more than 'ordinary' legislation by incorporating objects and purposes. It incorporates a number of values, which are integral to the legislative scheme. It is always necessary to ensure that constructional choices, and construction, are undertaken paying sufficient regard to the legislative scheme as a whole, for that forms the context for any particular provision: see R v A2 [2019] HCA 35; (2019) 93 ALJR 1106 at [32] [34] (Kiefel CJ and Keane J), [124] (Bell and Gageler JJ). In the case of the Act, because of its particular features, the need to examine particular provisions in the wider context of the scheme as a whole is especially important.[33]

4. A person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The significance of the task to the overall concept of the activity is, to our mind, also relevant. However, it remains for the decision-maker to assess the degree to which the person can participate in the activity.[34]
5. The evidence outlined at paragraphs 60-62 of this decision shows that Mr Beaumont, on occasions, uses a lightweight aluminium chair to aid his mobility in the community, particularly where the required distance to be travelled is greater than 100-200 meters. We therefore need to consider whether Mr Beaumont is unable to effectively mobilise by virtue of being unable to walk more than about 100-200 meters without assistive technology or equipment.
6. Firstly, the Tribunal is required to consider whether the use of the light-weight metal chair could be characterised as assistive technology or equipment. Neither is defined in the NDIS Act or Rules.
7. "Assistive technology" is defined in the Assistive Technology Operational Guideline, issued by the NDIA on 20 June 2022, in the following way:[35]

The World Health Organisation has a universal definition of assistive technology. > > Assistive technology is equipment or devices that help you do things you can't do because of your disability. Assistive technology may also help you do something more easily or safely. Assistive technology will reduce your need for other supports over time. > > This could be small things like non-slip mats, or special knives and forks. It could be big things like wheelchairs and powered adjustable beds. It also could be technology like an app to help you speak to other people if you have a speech impairment. > > Not all equipment or technology you use is assistive technology. Many people use some equipment as part of their lives, for example, a radio to listen to music, or a standard microwave oven to cook food. > > Assistive technology is only the equipment you need because it helps you do things that you normally can't do because of your disability. It includes items that: > > • mean you need less help from others > > • help you do things more safely or easily > > • help you to keep doing the things you need to do > > • allow you to do tasks independently > > • are personalised for you. > > (Our emphasis)

8. The current guideline in place at the time of hearing states: 'assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.' Inclusion of the word 'prescribed' arguably raises the threshold beyond that contemplated by rule 5.8(a). In Foster, it was held that the catheters had been prescribed in direct response to Mr Foster's medical needs arising from his impairment.[36] The Access Guideline at the time stated: "Such items would generally be specially designed to assist in increasing the functional capacity and participation ... and be formally prescribed by a medical practitioner...".[37] The Full Court did not express a view either way about the relevance of a prescription, or whether assistive technology could be prescribed by an allied health practitioner (rather than a medical practitioner), but noted the Assistive Technology Operational Guideline was "clearly broad enough to include catheters".[38]
9. In the Tribunal's view, the definition outlined in the Assistive Technology Operational Guideline and as applied in Foster, supports a conclusion that there is no inherent quality to assistive technology or equipment beyond the function to help people do things they normally can't, or which are particularly difficult. Therefore, assistive technology or equipment does not, to our minds, necessarily need to be prescribed or purchased, for example, at significant cost.
10. Further, 'commonly used items', also not defined in the Act or Rules, should be interpreted using a plain reading of the text. Glasses are commonly used items because they are routinely used by a wide range and large number of people to improve vision. People do not commonly use walkers, nor do they commonly carry lightweight chairs to aid their walking beyond 100 metres.
11. In Mr Beaumont's case, he uses a light-weight aluminium folding chair, purchased from K-mart, to help him access the community in circumstances where he is required to walk for longer than approximately 100-200 metres or 10 minutes. The need for this chair arises because of his impairments of pain and fatigue. He has improvised with a cheap folding chair in circumstances where a significantly more expensive form of equipment might otherwise be used, such as a walker with brakes, storage and a seat. While the equipment is different, the purpose or function, namely, to enable a person to travel longer distances with a safe place to rest, is essentially the same. In the Tribunal's view, a chair is not a commonly used item if it is being used to improvise for equipment that is assistive in nature, like a walker.
12. If the Tribunal is wrong regarding our interpretation of the use of the chair as assistive technology or equipment, it is necessary to consider whether rule 5.8(a) requires an applicant to be using assistive technology or equipment (however defined) or simply demonstrate the need for assistive technology or equipment because the applicant 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 it. In the Tribunal's view, any requirement that a person possess or use assistive technology or equipment at the time of their application might have the undesirable outcome of advantaging applicants with greater financial resources over those from lower socio-economic backgrounds. It might also give an unfair advantage to those with greater knowledge of the legislative framework, who could bolster their access request through the purchase of equipment, supports or services at the time of their application.
13. It is clear from the evidence that Mr Beaumont is unable to mobilise effectively over 100-200 meters in the community without the assistance of something akin to a walker. His use of an improvised chair is essentially in lieu of a walker; an item which might more readily satisfy preconceived notions of assistive technology or equipment. In that sense, he needs assistive technology to effectively mobilise over 100-200 meters.
14. However, it is not entirely clear to the Tribunal how often Mr Beaumont requires the use of the aluminium chair, or in what circumstances. Having reviewed the evidence, the Tribunal is unable to determine whether the aluminium chair has ever been used, for example, to support attendance at medical appointments. Therefore, even if our analysis is correct that the chair could be considered assistive technology or equipment, Foster suggests this alone is not enough. There would need to be a connection between the equipment (chair) and the task (walking in the community over 100-200 metres) such that it could be considered central to the activity of mobility. Without greater particulars about the frequency and reasons for the task (such as attending essential medical appointments), the Tribunal is unable to find that Mr Beaumont cannot participate effectively in the activity of mobility without assistive technology or equipment.
15. We note that if the adverb 'completely' was given a construction closer to what we have referred to above, this may have supported an argument by Mr Beaumont that he is simply unable to mobilise to the extent necessary for his daily life without the use of something akin to a walker. However, this issue does not arise on the construction of rule 5.8 adopted in Foster.
16. For completeness, counsel for the Respondent contends that the use of furniture to lean on and hold while mobilising in the home should be considered a commonly used item. We make no finding either way except to say that leaning on furniture could be evidence of the need for assistive technology in line with our analysis at paragraph 119. If the use of furniture to lean on was held to potentially indicate a need for assistive technology, it would not affect our conclusion in this case as we accept Mr Beaumont's evidence that he can currently walk unassisted for up to 10 minutes in the community. This suggests the availability of furniture to lean on is not necessarily essential for him to be able to mobilise around his home.
17. Accordingly, we do not find that Mr Beaumont's circumstances are captured by rule 5.8(a) in relation to mobility.

1. Mr Beaumont does not use any assistive technology, equipment or home modifications to undertake self-care, other than the use of a shower chair. Mr Beaumont reported that he could stand in the shower to wash himself and only used the chair to sit on while drying. For this reason, we find Mr Beaumont's circumstances are not captured by rule 5.8(a).

Rule 5.8(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

1. In answering the question whether Mr Beaumont usually requires assistance, we must identify the specific task or tasks that he usually requires assistance with to determine whether, overall, he experiences a substantial reduction in functional capacity in the activity of self-care and/or mobility.
2. As outlined above, Mr Beaumont is currently independent with several tasks associated with self-care including eating, toileting, showering, grooming and he manages to do some tasks in relation to meal preparation, shopping, cleaning and gardening. He utilises a range of strategies to maintain his independence and functional capacity by modifying his movements, pacing himself, improvising and doing small bursts of activity. Similarly, Mr Beaumont manages to mobilise independently around the home by holding on to furniture and he can drive short distances to access his GP, physiotherapist and the local shops.
3. The evidence suggests that cleaning and gardening (each of which consist of several tasks and sub-tasks) and attending medical appointments at the hospital, pose the greatest challenge to Mr Beaumont.

1. When considering whether Mr Beaumont usually requires assistance with self-care or mobility, the Tribunal notes that the Access Guidelines seem to suggest a higher threshold in relation to disability-specific supports by inserting the word 'high': "a high level of support from other people...".[39] The term 'high' has been used rather than an adjective for 'usually' such as 'normally', 'routinely', or 'generally'. The Tribunal's interpretation of rule 5.8(b) is that the term 'usually' operates on the frequency or regularity of the assistance provided, that is, does Mr Beaumont, more often than not, require assistance with elements of self-care or mobility. We find the guidelines are inconsistent to the extent that they attempt to set a threshold level of support which must be required for completion of the task or activity. This is not to say that considerations of the overall importance of a task to the activity are irrelevant, which is discussed further below.
2. The term 'assistance' incorporates physical assistance, guidance, supervision or prompting. We are satisfied that the type of assistance that Mr Beaumont receives and/or needs is physical assistance, for example, his wife completing the heavier part of certain tasks or doing the entire task in place of Mr Beaumont. He does not need to be guided, supervised or prompted.

1. The Tribunal is satisfied on the evidence that Mr Beaumont usually requires assistance with a significant number of cleaning tasks. While it does not seem to us that the term usually invites a consideration of the regularity of task that the person needs assistance with, the Tribunal regards it a matter of common sense that the relative regularity and importance of the task to the health, safety and wellbeing of a person are relevant considerations. The cleaning tasks that Mr Beaumont cannot do are tasks that are required to be performed on a daily or weekly basis. They also have a direct bearing on other aspects of his self-care. For example, if his bathroom is unclean, it could affect his showering and grooming.
2. Similarly, we are satisfied that Mr Beaumont usually requires assistance to travel to his medical appointments at the hospital 60km away because he is unable to drive himself for distances longer than about 10 minutes at a time, and he has no means of getting to these appointments, other than relying on his wife to drive him. While the appointments are not daily, and the appointment schedule may vary, they are relatively common. He has relied on Mrs Beaumont to perform this task since the start of the year. Attending these appointments are also essential to monitoring Mr Beaumont's health, treating his cancer and managing his pain.
3. The issue of gardening, admittedly, is a more difficult concept within the domain of self-care. Except to the extent that it might have an influence on one's general wellbeing, the completion of gardening activities has no real impact on other self-care activities. It could hardly be said to be important, let alone essential, to Mr Beaumont's health or safety. On the other hand, Mr Beaumont happens to live on a 2.5 acre property (where he and his wife settled after their house burnt down in 2016). The garden is a reality that cannot be ignored, just as the location of the hospital 60km from his home in a regional location is also part of Mr Beaumont's circumstances. Gardening is one of the reasons why Mr Beaumont applied to become a NDIS participant in the first place - because he could no longer manage it and was hoping for some assistance. While there are various tasks and levels of intensity when it comes to gardening, the Tribunal accepts that Mr Beaumont is unable to complete several basic tasks, such as raking, weeding and manoeuvring wheelie bins. It is less clear how frequently such tasks would need to be completed.
4. In isolation, gardening would not, in this Tribunal's view, be significant enough to the concept of self-care, to meet the threshold of usually requires assistance in rule 5.8(b). However, when considered in combination with the various cleaning tasks that Mr Beaumont is unable to perform due to his impairments and his inability to attend essential medical appointments at the hospital without assistance (namely his wife driving him), the Tribunal finds that Mr Beaumont requires assistance (namely physical assistance) from other people (usually his wife) with a significant proportion of the bundle of tasks which make up the domain of 'self-care'. We also consider that proportion, as well as the nature of the tasks affected, to be sufficient to support a conclusion that Mr Beaumont usually requires assistance from other people to participate in the activity of self-care. For this reason, we say Mr Beaumont is deemed to have a substantially reduced functional capacity under rule 5.8(b).
5. For an abundance of clarity, had gardening not been an issue in this case, we would still find that Mr Beaumont usually requires assistance in the domain of self-care because of his inability to complete key cleaning tasks and attend medical appointments without physical assistance from his wife.

1. For reasons outlined directly above and recognising the somewhat unavoidable overlap in the treatment of the evidence under the domains of self-care and mobility in this case, the Tribunal finds in the alternative that Mr Beaumont's circumstances in relation to mobility are captured by the deeming provision.
2. The Tribunal is satisfied that Mr Beaumont requires physical assistance from Mrs Beaumont with a significant proportion of the bundle of tasks and activities which make up the domain of mobility. He requires physical assistance from his wife to drive him to his medical appointments at the hospital, which are essential to monitoring his health, treating his cancer and managing his pain. He also relies on Mrs Beaumont to do most of the grocery shopping and requires her physical assistance to undertake a range of cleaning and gardening tasks which he can no longer perform due to the pain associated with mobilising. In our assessment, Mr Beaumont's need for physical assistance with these tasks and activities supports a conclusion that he usually requires assistance from another person with mobility within the meaning of rule 5.8(b).

Rule 5.8(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.

1. It is clear from the evidence that rule 5.8(c) is not relevant to Mr Beaumont due to his current level of functional capacity.

1. If our interpretation of rule 5.8(b) is incorrect, and Mr Beaumont could not be said to be captured by the narrower deeming provision, we are required to assess whether he has a substantially reduced functional capacity in the domains of self-care and mobility.
2. A useful starting point to the consideration of section 24 is the judgment of Mortimer J in Mulligan:[40]

51. Some general observations should be made about these matters. The term "disability" is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person's impairments on that person's abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function. > > 52. Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities extracted above) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the "reasonable and necessary supports" to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act. > > 53. At p 14 of the revised Explanatory Memorandum, the purpose of what became s 24 is described: > > Clause 24 sets out the disability requirements a person must satisfy in order to become a participant in the NDIS launch. The disability requirements are designed to assess whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments that have consequences for the person's daily living and social and economic participation on an ongoing basis. This clause also implements recommendation 3.2 of the Productivity Commission report. > > 54. Recommendation 3.2 of the Productivity Commission Inquiry Report, "Disability Care and Support" (31 July 2011), stated: > > Individuals receiving individually tailored, funded supports through the NDIS: > > · should have a disability that is, or is likely to be, permanent, and > > · would meet one of the following conditions: > > · have significantly reduced functioning in self-care, communication, mobility or self- management and require significant ongoing support; > > · be in an early intervention group, comprising individuals for whom there is good evidence that the intervention is safe, significantly improves outcomes and is cost effective. > > In exceptional cases, the scheme should also include people who would receive large identifiable benefits from support that would otherwise not be realised, and that are not covered by the groups above. Guidelines should be developed to inform the scope of this criterion and there should be rigorous monitoring of its effects on scheme costs. > > 55. Using the concept of impairment enables assessment of the severity and permanency of a person's condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted. > > 56. That being the case, no arbitrary limits are placed on access to the NDIS. No decision-maker need be satisfied a person's impairment is "serious", or more serious than another person's. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important. > > (Emphasis added).

3. The Respondent submitted that the Tribunal (differently constituted) has previously observed that "the threshold requirements to achieve functional capacity in relation to [mobility] 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".[41] In that case, the ability to independently travel 50 meters was found to demonstrate a capacity to undertake the activities contemplated in the domain of mobility.
4. The current Access Guideline describes mobility as "how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs".[42] (Emphasis added).
5. Counsel for the Respondent submitted the NDIS Act doesn't stipulate an 'average' or 'reasonable person' comparator and the relevant test is whether an applicant can achieve mobility at a "base-line level"; not what the average person can achieve. The difficulty with such an approach is that the Act makes no reference to a "base-line" of functional capacity. Further it seems to us that the process of establishing whether a person's functional capacity is reduced almost inevitably involves a comparison either with their own previous functional capacity, or the functional capacity of others. The statutory scheme could readily have made this criterion more objective, by specifying whether particular tasks or activities could be completed or not, but it has not been framed in this way. We note the Guideline with respect to the activity of communication explicitly directs a decision maker to consider how an applicant communicates "compared to other people [their] age".
6. Further, the use of the term 'easily' by the Guideline naturally invites some level of comparison about how a person undertakes particular movements or functional processes in relation to others. While the Tribunal accepts the Respondent's submission that the statutory framework does not stipulate any sort of comparator, as a matter of common sense, it would be impossible to assess any applicant without some experiential judgement about how easily or difficult a person finds certain tasks compared with other people in similar situations or attempting similar tasks, particularly when they are ordinary tasks of daily living. The Guideline reflects this practical reality.
7. The Tribunal's decision in Madelaine is often cited by the Respondent as an example of the correct approach to the interpretive task. At the time of that decision, the Access Guidelines described mobility as "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".[43] The Tribunal (differently constituted) placed significant emphasis on the word crawling, without any obvious distinction between small children and adults, opining that, "[m]ovement in the home does not need to be achieved by walking; a person might even crawl from room to room".[44] The apparent baseline used in that case was remarkably low, and hard to reconcile with the objectives and purposes of the act, including that people with disability have their dignity respected. Notably, the word 'crawling' has since been removed from the Guidelines.
8. In Madeleine it was decided that mobility should not include the ability to reach local services as that would make it a function of where one lived. In DP Humphries view: "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".[45] He thought that 50 metres was a reasonable distance to achieve the things referred to in the guidelines. While this Tribunal is not bound by other Tribunal decisions, we note that such an approach, if used generally, might ignore the reality of people who live in rural or regional locations and that 50 meters would not get some people beyond the car park of their local shopping complex. The use of supposed base-line descriptors can ignore the context and location of people's lives. In the case of Mr Beaumont, the 60km trip to the hospital for medical appointments is not optional and his ability to reach that service is central to our inquiry. Of course, arguments about the type and intensity of any support he might receive from the NDIS for travel belong to considerations under section 34 of the Act and are not relevant to the present task at hand.
9. In our view, an assessment of the extent to which a person's functional capacity is 'reduced' cannot be made in isolation from the experience of other people's mobility and self-care in day-to-day life and our assessment must be based on Mr Beaumont's actual life. Noting the threshold in section 24 revolves around the severity and permanency of the effects of the impairments, the functional assessment completed by Ms Newton, and the updated evidence obtained through the hearing process indicate a level of severe pain and fatigue currently experienced by Mr Beaumont and the associated impact on his mobility and self-care.
10. We are satisfied based on the evidence heard by this Tribunal that in the context of the tasks and activities associated with his daily life, Mr Beaumont's impairments substantially reduce his functional capacity. Due to a combination of fatigue and pain, which escalates to an unbearable level if not managed carefully, he is unable to independently attend essential medical appointments at the hospital; he is unable to complete enough cleaning tasks to maintain basic hygiene and cleanliness in his house and he can't perform simple tasks to maintain his garden at a basic level. In Mrs Beaumont's absence, we consider that Mr Beaumont would have significant difficulties obtaining groceries and preparing meals. Accordingly, we are satisfied he meets subsections 24(1)(c)(v) and (iv) of the Act in relation to self-care and mobility.
11. Mr Beaumont's substantially reduced functional capacity will worsen over time. The level of support that he requires will no doubt change as the cancer progresses and the pain increases, but that will be assessed by the Agency under section 34. Our only decision is whether his access to the scheme is justified in accordance with section 24 and we say it is.

1. Having concluded that Mr Beaumont satisfies section 24, the Tribunal is not required to engage with submissions regarding his access to the scheme under section 25.

1. The Tribunal sets aside the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and decides in substitution that Mr Beaumont meets the disability requirements for access to the National Disability Insurance Scheme as set out in section 24 of the National Disability Insurance Act 2013 (Cth).

I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for the decision herein of Member K Bean and Member N Purcell.

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

[1] Joint Hearing Tender Bundle (JHTB), B7.

[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].

[5] National Disability Insurance Agency, Our Guidelines - Becoming a participant - Applying to the NDIS, (1 February 2024)

[6] Mulligan v National Disability Insurance Agency [2015] FCA 544 ('Mulligan') at [55].

[8] National Disability Insurance Agency v Foster [2023] FCAFC 11 ('Foster').

[10] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).

[12] Timofticiuc and National Disability Insurance Agency [2021] AATA 3015 at [96].

[21] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635]

[24] Our Guidelines - Becoming a participant - Applying to the NDIS, 1 February 2024, p8.

[25] Our Guidelines - Becoming a participant - Applying to the NDIS, 1 February 2024, p8.

[26] We note that 'personal domestic activities' including basic house and yard work are considered 'daily life' activities alongside self-care activities in the current NDIS Pricing Arrangements and Price Limits 2023-24 Version 1.3 (published 7/02/2024), https://www.ndis.gov.au/providers/pricing-arrangements, p 40.

[27] Our Guidelines - Becoming a participant - Applying to the NDIS, 1 February 2024, p8.

[32] Macquarie Dictionary (8th ed, Macquarie, 2020) at p 493 cited in Foster at [82].

[39] Our Guidelines - Becoming a participant - Applying to the NDIS, 1 February 2024, p 9.

[41] Madeleine and National Disability Insurance Agency [2020] AATA 4025 at [104]. ('Madeleine')

[42] Our Guidelines - Becoming a participant - Applying to the NDIS, 1 February 2024, p8.