Rooney and National Disability Insurance Agency [2021] AATA 3523 (1 October 2021)

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

Ditchfield and National Disability Insurance Agency, Re [2019] AATA 2121

Madelaine and National Disability Insurance Agency, Re [2020] AATA 4025

Explanatory Memorandum to the National Disability Insurance Scheme Bill 2013

1. The Applicant seeks review of a decision made on 30 June 2020 following an internal review under section 100 of the National Disability Insurance Scheme Act 2013 ("the Act") which decided that he did not meet the applicable access criteria[1] ("the reviewable decision").

2. The Applicant injured his right knee in March 2019 when he fell in a stormwater ditch whilst walking home on a darkened road in Bali. He suffered a wound which quickly became infected. He was operated on in Bali before being transported back to Australia one week later as an emergency patient. Upon his return he was admitted to the John Fawkner Hospital on 3 April 2019 for treatment for sepsis. This required a number of procedures including four operations in a week. Amongst the procedures were wound debridement, attempted tendon and skin grafts, and manipulation under anaesthetic which led to scar failure and further infection. Initially, the Applicant was treated at the John Fawkner Hospital and then subsequently, particularly for the purposes of rehabilitation, was at the Brunswick Private Hospital. He was in hospital for 11 weeks.

3. Rehabilitation commenced at approximately the end of May, early June 2019 whilst he was still in hospital. This rehabilitation took place twice a week and usually involved a session with the physiotherapist manipulating and massaging the leg concerned. Additional therapy was undertaken through an exercise physiologist who gave the Applicant exercises to improve his strength and balance. He also undertook therapy in a swimming pool.

4. On 2 June 2020 the Applicant made an Access Request to become a participant in the National Disability Insurance Scheme ("NDIS"). The assistance he sought was the purchase of a mobility scooter which was said would enable him to travel, shop and play golf again.[2]

5. On 24 June 2020 the Respondent declined the Applicant access to participation in the NDIS. The Applicant then sought internal review of this decision on 25 June 2020.

6. The issues for determination by the Tribunal in this application are whether the Applicant satisfies:

(a) the disability requirements of section 24 of the Act; or

(b) the early intervention requirements of section 25 of the Act.

THE ACCESS CRITERIA UNDER THE ACT AND THE RULES

7. Section 21 of the Act provides that a person meets the access criteria if:

(c) they satisfy the age requirements (section 22);

(d) they satisfy the residence requirements (section 23); and

(e) at the time of the request for access to the scheme they meet the:

8. It is conceded by the Respondent that the Applicant meets the age and residence requirements.[3]

9. Section 24 "Disability requirements" of the Act provides:

(1) A person meets the disability requirements if:

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

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

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

(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.

10. Section 25 "Early intervention requirements" provides:

(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 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.

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

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

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

11. The Respondent has also conceded that the Applicant's impairments are permanent and that he thereby satisfies sections 24(1)(a) and (b) of the disability requirements. Section 24 (1)(d), that the impairment affects the Applicant's capacity for social or economic participation, is also conceded.

12. The areas where the parties disagree concern section 24(1)(c) and (e) of the Act.

13. As for section 24(1)(c) of the Act, the Applicant contends that he has a substantially reduced functional capacity to undertake the following activities:

14. It is also contended on the Applicant's behalf that his impairments affect his capacity for social and economic participation within the meaning of section 24(1)(d) of the Act.

15. In determining these issues, recourse must be had to the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 ("the Rules").

16. Concerning the question of whether an impairment results in a substantially reduced functional capacity to undertake relevant activities identified in section 24(1)(c) of the Act, Rule 5.8 provides as follows:

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

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

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

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

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

17. This Rule is a deeming provision in that it defines when a person must be taken to have a substantially reduced functional capacity within the meaning of section 24(1)(c) of the Act. If the criteria enumerated in the Rule are met with respect to the performance of each of the activities or outcomes therein, the disability requirements in section 24(1)(c) of the Act are deemed to be satisfied.

18. The term "commonly used items" as referred to in Rule 5.8(a) is relevant in determining whether a prospective participant has a substantially reduced functional capacity for the purposes of section 24(1)(c) of the Act because such a person is unable to participate effectively or completely in a relevant activity as described in that Rule.

19. The Tribunal agrees with the Respondent's contention that in assessing whether a person can participate effectively or completely in a relevant activity, Rule 5.8(a) requires the decision-maker to undertake that assessment on the basis that such person is unaided by assistive technology, equipment or home modifications other than "commonly used items". Therefore, if a person can mobilise with a commonly used item, they will not satisfy the requirements of Rule 5.8(a). In the alternative, the language used in Rule 5.8(a) requires the decision-maker to reach a conclusion as to whether a person aided by commonly used items can participate effectively or completely in one of the relevant activities.

20. The term "commonly used item" is not defined in either the Act or the Rules.

21. The Respondent in its Statement of Facts, Issues and Contentions has identified several matters relevant to construing the term "commonly used item." It is worthwhile summarising them here as they do assist.[4]

22. Consistent with the ordinary meaning of the word "substantially", it is a significant threshold for an applicant to satisfy.

23. It should not be lost sight of that in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.[5]

24. The meaning of the term "commonly" is "usually; generally; ordinarily." Such terms do, to some extent, lack precision. Frequency or popularity may be indicative of common usage however, they are not the only, or determinative factors.

25. The Applicant contended that items used by 50% of the general population are probably correctly described as commonly used. Items used by less than 1% of the general population are not commonly used.[6] The Tribunal does not agree with this contention.

26. To this extent the Tribunal considers that the term in this context must surely refer to commonly used items by persons who have the disability concerned. Glasses may be common amongst people who have some level of vision impairment (bearing in mind that the range of vision impairment in the population can vary significantly) the same way crutches may be common amongst persons who have restrictions on their capacity to walk. A back brace for instance may be common amongst persons who suffer significant back complaints but is not common in the community as a whole.

27. There are also other indicia of commonly used items which include whether the item:

(b) can be used without the need for complex or specialised customisation or installation;

28. Another observation should be made about the language used in Rule 5.8(a) which refers to commonly used items such as glasses. In most instances glasses are only dispensed after one has obtained a prescription. The prescription follows an examination by an optometrist or ophthalmologist who determines the nature of the defect in the patient's sight and which lens will rectify such a defect. This does require the application of professional skill and expertise to a significant and high level. It is further reason for concluding that the threshold contemplated by the Rule is a high one.

29. The Applicant in the closing written submissions filed on his behalf contends that if the types of crutches which he requires are not commonly used items such as glasses, then he is entitled to be a participant in the NDIS scheme. The Respondent by way of response has properly pointed out that contrary to this assertion, if the finding is made that crutches are not a commonly used item, it would have the effect that the Applicant would satisfy the disability requirements in section 24(1)(c) of the Act. However, he would still be required to satisfy the requirements of section 24 (1)(e) of the Act. The Respondent contends that the Applicant does not so satisfy that subsection.

30. The Applicant's approach to this question is to look at it from the perspective of, as he calls them, "bespoke forearm crutches in issue in this case".[7] This approach adopted in the Applicant's closing submissions was at variance with what the Applicant stated to a Consultant Occupational Physician, Dr Haynes, who was retained by the Respondent to examine him in May 2021. Dr Haynes in his report of 13 May 2021 recorded that the Applicant stated his equipment (two elbow crutches and a walking frame) was not bespoke and did not require prescription.[8] Dr Haynes further recorded that specific customisation or special fittings were not required. This inconsistency in the Applicant's position was not explored during the hearing, or for that matter, in either party's written submissions. However, the admission made by the Applicant to Dr Haynes must be taken into account by the Tribunal.

31. The Applicant's submissions identify several reasons why his crutches are not commonly used items.

32. Firstly, he contends that prescription glasses are much more commonly used. Approximately half the population wear glasses or contact lenses. Crutches are far less commonly used. The Tribunal refers to its consideration on this topic above. Whilst frequency or popularity may be indicative factors, they are not the only nor determinative ones. Glasses are common amongst people with eyesight difficulties. Whereas crutches are common amongst persons who have, such as the Applicant, significant restrictions on their capacity to walk or otherwise use their legs.

33. Secondly, the Applicant contends that the choice to wear glasses or contact lenses in many cases is one of personal choice, often based on cosmetic considerations. He contends this is not the case with the type of bespoke forearm crutches that he uses. Crutches are vital for the Applicant's mobility but many people, notwithstanding that they have a need for glasses, may choose not to wear them. Without the crutches the Applicant cannot participate effectively or completely as contemplated by Rule 5.8(a).

34. The Tribunal cannot accept this contention for the reason as noted earlier that most people wearing glasses do so after obtaining a prescription. Rarely is it a case of personal choice based on cosmetic considerations. Particularly, as one gets older, deterioration of eyesight is commonplace. Just as crutches are vital for the Applicant's mobility so are glasses for most of their wearers vital for them achieving optimal eyesight and being able to function in daily life.

35. Thirdly, the Applicant submits that the crutches concerned directly assist him to overcome the impacts of his disabilities by increasing his functional capacity to undertake his usual activities. Prescription glasses do not directly assist the person in the same way, they are said to be more peripheral in their effect. The Tribunal cannot accept this contention either. Prescription glasses, as noted earlier, are vital for the wearer to achieve optimal eyesight. Many people without wearing glasses are significantly handicapped. It would be quite wrong to say that they are more peripheral in their effect.

36. Fourthly, the Applicant contends people generally are not disabled in the sense used by the Act, by having some poor form of eyesight which can be assisted by glasses. The Tribunal considers that people having some form of impaired eyesight which can be assisted by glasses are disabled in the relevant sense. However, they will not satisfy the access criteria because glasses (which are an item commonly used by the vision impaired) enable them to participate effectively or completely in the activity concerned.

37. The Tribunal accepts the Respondent's contention that crutches are commonly used items for several reasons. Those reasons are as follows:

(a) Elbow crutches are relatively inexpensive items;

(b) Elbow crutches are easily accessible, readily available for purchase at a variety of outlets;

(c) They require no particular customisation or prescription,[9] unlike glasses; and

(d) They are widely used by people requiring some additional support with their mobility in a similar way and as noted earlier, glasses are widely used by people requiring some additional support with their sight.

38. The Respondent pointed to further matters in support of its contention that crutches are commonly used items emerged from the evidence which the Tribunal accepts.

39. Whilst at Brunswick Private Hospital, the Applicant was consulted by a physiotherapist once per day. Eventually, he was fitted with crutches that had moulded handgrips by an equipment supplier. The cost of them was between $75 to $80 for the pair.[10]

40. The exercise physiologist and occupational therapist gave the Applicant tuition in the use of crutches. The suppliers and the physiotherapist adjusted the arm and the elbow to the most comfortable setting.

41. The reason the Applicant uses crutches is because he is unable to mobilise without them. He has attempted to use a walking stick but could not maintain his balance.

42. Adjustments can be made at four different settings to alter the height of the crutches.

43. The Tribunal was referred to a decision of Member Parker in Re Ditchfield and NDIA[11] in which it was held that neither a walking frame nor crutches fall within the definition of "commonly used items" for the purposes of Rule 5.8(a) of the Rules. The foundation for that finding was a reference to paragraph 8.3.1 of the NDIA Operational Guidelines which provides that "commonly used items include glasses, walking stick glasses, nonslip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids." The Tribunal noted that neither walking frames nor crutches were included in that list. Interestingly, reference was also made to the same paragraph of the Operational Guidelines which addressed the concept of specialist disability aids and/or equipment. The reasons noted that it is also provided that they would "generally be specifically designed to assist in increasing functional capacity and participation" of people with a disability (first limb) and that they "be formally prescribed by a medical practitioner, specialist clinician or allied health professional" (second limb).

44. As noted above in these reasons the Applicant's crutches were not formally prescribed in the relevant sense. Therefore, this Tribunal, with the greatest of respect for the reasons articulated above, cannot accept that crutches do not fall within the definition of a commonly used item as was found by the Member in Ditchfield.

45. Therefore, the Tribunal concludes that crutches are a commonly used item within the meaning of Rule 5.8(a).

46. Reference should be made to the Applicant's use of orthotics and whether they are commonly used items for the purposes of Rule 5.8(8). The Applicant did not really touch on this topic in submissions.

47. It should be observed that at the time that Ms Greene, an Occupational Therapist from the Brunswick Private Hospital, conducted her assessment on 27 November 2020,[12] the Applicant was not using orthotics. In his evidence he stated that he commenced using them in approximately November 2020. He was wearing them when he undertook his assessment with Dr Haynes.

48. The Respondent contends and the Tribunal agrees that the orthotics used by the Applicant would fall within the meaning of "commonly used items" for several reasons.

49. Firstly, the orthotics used by the Applicant had not been prescribed or specifically made for him following measurement and fitting.

50. Secondly, the orthotics used by him are comparatively inexpensive costing approximately $100.00.[13] Specifically, prescribed and moulded orthotics on his evidence would cost somewhere between $300 and $350.[14]

51. Thirdly, even if the orthotics were customised, it does not mean they cannot be commonly used.

52. Ms Greene's assessment revealed that the Applicant could walk 369 metres in 13 minutes aided by one crutch. The Applicant said that the use of orthotics made him a little more stable, and that he is able to "do a little bit more"[15]. Without the orthotics he puts pressure on the top front of his foot and his toes, and his heel does not touch the ground. It appears that overall, notwithstanding that he was wearing orthotics, there was no apparent improvement in the Applicant's ability to ambulate when he was examined by Dr Haynes. Therefore, as the Respondent contends, at the very least, temporary orthotics made little, if any, difference to his functional capacity.

53. By reason of the foregoing the Tribunal considers that orthotics are commonly used items within the meaning of Rule 5.8(a).

54. The Tribunal considers that the Applicant's impairment has not resulted in a substantially reduced functional capacity to undertake the activity of social interaction. There is no doubt, and the Tribunal accepts as such, that some activities which constitute social interaction are more difficult for him to undertake. However, he can still nonetheless undertake them.

55. Some considerable attention in the course of the material and the hearing of this application concerned the Applicant's activities at a local golf club. Golf, it was submitted, is an important part of the Applicant's social interaction. He plays nine holes of golf twice per week. On Wednesdays he plays with the Royal Park Veterans group. On Saturday morning he plays with the North Melbourne Social Golf Club who he described as a group of approximately 40 or 50 members who are all men, he had played football or cricket with, or against, over a 40-year period. Indeed, he said in the witness box that if he didn't have golf, he would have no social network. The Tribunal accepts this contention. However, he is still able to attend the golf club and interact socially with people who are present there. He is still able to play golf with the assistance of a motorised golf cart.

56. The Applicant conceded in evidence, and it was observed by Dr Haynes, that he continues to play a nine-hole round of golf twice weekly. Other than the motorised golf cart, no other assistance is required to complete the round of golf. The Respondent contends and the Tribunal agrees that motorised golf carts are frequently used by golfers of all ages and physical abilities. They are available at most golf clubs.

57. Additional activities undertaken by the Applicant include attendance at the gymnasium and a swimming pool. These activities are undertaken without any assistance.

58. None of the activities identified by him required assistance from a carer or support worker, or even for that matter, his wife.

59. In terms of other interpersonal relations or dealings, there was no evidence before the Tribunal in any form that the Applicant's disability had caused such relations or dealings to suffer in any way. Commendably, despite his disability, he has been able to maintain social interaction with friends and acquaintances as before he suffered his injury.

60. By reason of the foregoing matters, the Tribunal concludes that with respect to social interaction, the Applicant does not fall within the circumstances deemed by Rule 5.8(a) to (c) of the Rules nor has he demonstrated a substantially reduced functional capacity to undertake the activity for the purposes of section 24(1)(c) of the Act.

61. Reference was made to the decision of Deputy President Humphries in Re Madelaine v NDIA ('Madelaine')[16] and how one defines a functional capacity to mobilise within the meaning of the section. It is worthwhile reproducing several passages from the Deputy President's reasons:

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

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

"[109] It is unfortunate that activities she was previously able to accomplish-travelling to Sydney or the snowfields, walking on the beach, walking for pleasure-are now beyond her. But such activities are not the appropriate yardstick. A huge (and, for the purposes of section 3 (3, unsustainable) number of Australians would be eligible to participate in the NDIS if they were.

62. It should be observed in that case the applicant's mobility was not without risk and never without pain. Additionally, it should also be observed that she was unable to undertake many activities that she was able to previously. These activities included travelling to Sydney or the snowfields, walking on the beach, and walking for pleasure. Those activities are now beyond her.

63. The Deputy President held that it was a reasonable distance within the meaning of Rule 5.8 that the applicant in that case could travel 50 metres for ten minutes by herself utilising a walking stick. He also held that a person in addition to the capacity to walk as noted, who is able to drive by themselves on most days in their car, does not experience substantially reduced functional capacity to mobilise. It was, he said, irrelevant that the distance the applicant could drive was not great, nor that she may not be able to do it indefinitely. It was the fact that many tasks associated with daily living could be achieved through the use of her car. Therefore, he found that the applicant did not have a substantially reduced functional capacity to mobilise.

64. There was much evidence before this Tribunal on the question of the Applicant's mobility. It is worthwhile reproducing that material for the purposes of these reasons.

65. In a walking mobility assessment conducted in November 2020 by Ms Greene, the Applicant ambulated for 369 metres in 13 minutes around local streets. He did so using one forearm crutch on his left hand side. He accepted this in his evidence. The Applicant also said in his evidence that he built up to 369 metres but the pain and lack of strength in his leg prevent him from going any further. It is as far as he can go. To achieve this distance, he has to push himself as hard as he can.

66. In his evidence the Applicant acknowledged that with two crutches "at a stretch" he can cover 400-500 metres before his leg gets too sore. It takes him about 15 minutes to do so.

67. The Applicant pushes with his arms to get up and then either uses crutches or a walking frame.

68. He can walk about 10 to 15 metres potentially without crutches. Dr Haynes observed in his evidence that the Applicant could walk 5 metres on carpet without the assistance of crutches.

69. Dr Haynes made several pertinent observations in his report of 13 May 2021 which he confirmed in his evidence. He conducted an assessment of the Applicant on 3 May 2021. He considered the Applicant's knee to be quite bad, taking into account the restriction of movement in it and the deformity.

70. Dr Haynes observed the Applicant using two elbow crutches when away from home. The Applicant recounted to Dr Haynes that he used a walker when at home. Dr Haynes observed, as noted above, that such equipment is not bespoke, does not require a prescription, nor is it customised with special fittings.

71. Dr Haynes assessed the Applicant's walking capacity and observed him as being capable of walking both indoors and outdoors for up to 100 metres using two elbow crutches before requiring a two-minute rest. He also observed the Applicant walking on carpet without crutches with a very marked limp favouring his right leg for approximately 5 metres. Whilst using elbow crutches he walked with a limp but was able to traverse approximately 50 metres. He was observed negotiating a set of five stairs but did have significant difficulty negotiating such stairs. In his evidence Dr Haynes said that he was not surprised that Ms Greene's assessment revealed that the Applicant could walk approximately 369 metres in a timeframe of approximately 13 minutes.

72. The Applicant agreed that he could walk about 10 to 15 metres without crutches and then he was "done". This is consistent with Dr Haynes' observations that he could walk for 5 metres without crutches.

73. Associate Professor Love, an orthopaedic surgeon retained by the Respondent to examine the Applicant, observed that the Applicant walks with crutches on each arm, has limited flexion and there is no instability.[17] There is pain present within the range of motion. In his evidence he stated that the Applicant has a severely compromised knee. The main evidence for this being the significant restriction of motion that was present when he undertook the examination of the Applicant.

74. As noted earlier in these reasons, the Applicant plays nine holes of golf twice per week with the assistance of a mechanised golf buggy.

75. He also attends a swimming pool and the gym three days a week. He drives there usually with his wife. At the swimming pool he undertakes hydrotherapy exercises. At the gym (unaided, but with difficulty) he undertakes an extensive program of exercises including 5 kg weights, groups of 15 squats on a chair, and other leg strengthening exercises using a leg press machine (leg extensions, leg curl and leg presses) for about 30 minutes each time. When he carries out these exercises he does so without assistance, but as he acknowledged with difficulty.

76. The Applicant is able to drive for half an hour but believes he could drive for up to one hour before developing increased right knee pain. He drives to golf taking approximately 20 minutes.

77. The Tribunal repeats that the evidence shows amongst other things:

(a) The Applicant can walk between 5 and 15 metres without crutches;

(b) With crutches, he can walk up to 369 metres in 13 minutes;

(e) He can undertake a reasonable exercise program in the gym.

78. This evidence demonstrates that the Applicant's mobility comfortably exceeds a distance of 50 metres, that distance which was considered in Madelaine 'to be reasonable. Following the reasoning of the Deputy President in Madelaine, it should be observed that the fact an individual undertakes a task more slowly or differently to others than when compared with before he suffered his injury, or perhaps more accurately the onset of the disability, does not necessarily mean the person cannot participate effectively or completely in an activity. Speed and difference are not, as noted in Madelaine, the appropriate yardstick.

79. It is apparent that the Applicant has sufficient mobility to get around the house and carry out the tasks of daily life with the commonly used item of crutches. He is able to participate in other aspects of daily life by using his car. The Tribunal acknowledges that these tasks are undertaken at times with some level of pain or discomfort. They are also undertaken with some level of difficulty on occasions. Nonetheless, he is able to perform the tasks required to undertake or participate in such activities effectively or completely.

80. By reason of the foregoing matters, the Tribunal concludes that with respect to mobility, the Applicant does not fall within the circumstances deemed by Rule 5.8(a) to (c) of the Rules nor has he demonstrated a substantially reduced functional capacity to undertake the activity for the purposes of section 24(1)(c) of the Act.

81. There was evidence before the Tribunal, both oral and written, that demonstrated that the Applicant's disability has not substantially reduced his functional capacity to undertake self-care and self-management.

82. He is able to shower and dress himself unassisted (by alternating between sitting and standing) save that he needs assistance tying his right shoelace. As for showering, shower rails have been installed and he uses a shower stool and a mat. A rail has also been installed in the toilet. He can get in and out of bed, he does not require any further equipment to undertake these tasks.[18] He conceded this in cross-examination.

83. The Applicant can get in and out of bed unaided but once he is out of bed, he requires a walking frame.

84. He usually drives to the pool and the gym with his wife. However, as noted earlier in these reasons, he drives to the golf club on his own.

85. For these reasons, the Tribunal concludes that the Applicant does not satisfy the requirements of section 24(1)(c) of the Act with respect to self-care and self-management.

WHETHER THE IMPAIRMENT AFFECTS THE APPLICANT'S CAPACITY FOR SOCIAL OR ECONOMIC PARTICIPATION

86. The Respondent has conceded that the Applicant satisfies section 24(1)(d) of the Act.[19]

WHETHER THE APPLICANT IS LIKELY TO REQUIRE SUPPORT UNDER THE NATIONAL DISABILITY INSURANCE SCHEME FOR HIS LIFETIME

87. Surprisingly, the Applicant made no submissions concerning this section.

88. The Respondent identifies several reasons why it cannot be said that the Applicant requires the support of the NDIS for his lifetime.

89. As observed above, he does not satisfy the criteria of section 24(1)(c) of the Act.

90. There are other schemes in existence to which the Applicant has access. In particular, there is the Victorian Aids and Equipment Program. This program provides subsidies for mobility aids, including mobility scooters and walking frames. Support is also available under this scheme for a toilet seat riser, shoe modifications, foot orthotics and custom-made footwear together with home modifications including ramps. Apparently, the Applicant was informed that he would not qualify for assistance under that scheme until such time as this application had been disposed of. The evidence that emerged from his cross-examination was that he was eligible for the scheme but probably would have to wait once he made the application, the delay being something in the order of approximately 12 months.

91. Also, due to his age, he may be eligible for the Australian Government Aged Care "Home Care Package" which can include provision of assisted technology as well as assistance in shopping centres and attending social events. However, when the Applicant made an enquiry of this scheme at Centrelink, he was informed he did not qualify because he was receiving a pension under his superannuation scheme.

92. For these reasons, the Tribunal considers that the Applicant is not likely to require the support of the NDIS for his lifetime as required by section 24 (1)(e) of the Act, as even if he had a substantially reduced functional capacity to undertake daily tasks, there are other programs available to him to address this.

DOES THE APPLICANT MEET THE EARLY ACCESS CRITERIA?

93. The Applicant relies on his own evidence and that of two experts to justify a contention that he satisfies the early access criteria contained in section 25 of the Act.

94. He gave evidence that although he had followed a rehabilitation program of water-based exercises and gymnasium work, which has been discussed earlier in these reasons, the functionality of his knee had gone backwards. Dr Haynes in cross-examination conceded that this was the case also when compared with the previous assessment of right knee flexion undertaken in September 2020 by Mr Seeley, a physiotherapist at the Brunswick Private Hospital.[20]

95. Mr McCann, a physiotherapist called by the Applicant, in a report of 2 September 2020 opined that the Applicant would require ongoing physiotherapy treatment to maintain what limited range of motion he currently has in his right knee. He also expressed the opinion that given the Applicant's age and general lack of mobility, there was potential for further deterioration, unless he maintains a level of strength and balance through supervised and structured therapeutic intervention.

96. Additionally, the Applicant relies upon a report from Mr Harmes, a podiatrist, of 28 September 2020 that also expresses an opinion that without significant ongoing therapy and support the Applicant's condition is likely to deteriorate.

97. The therapy and support that the Applicant seeks are said to be continuing gym work, a properly supervised water-based exercise rehabilitation program and periodic physiotherapy. Remedial massage has also been recommended.

98. The Respondent contends that the evidence does not establish that its CEO would be satisfied that early intervention supports are likely to benefit the Applicant in reducing the future needs for support.

99. The principal grounds upon which the Respondent relies for this contention emerge from the evidence of Dr Haynes and Dr Love. Dr Haynes stated that whilst there had been deterioration of his knee condition at this stage, he would not expect too much deterioration. However, to his credit, he stated he could not predict with any accuracy whether there would be or would not be any further deterioration of the Applicant were he to cease undertaking his current exercise and physiotherapy regime. He did say that from his assessment physiotherapy, massage and exercise have done about as much good as they were likely to do.

100. Dr Love expressed the opinion that it was unlikely that physiotherapy and massage would make any long-term difference to the symptoms. He did concede that such treatment will alter symptoms from time to time over short periods. When probed, he further conceded that the Applicant's knee had deteriorated pretty significantly but he could not say definitely whether it was going to deteriorate further from this point. The only thing he could say was that it was unlikely to improve to any significant degree.

101. The Tribunal prefers the opinions expressed by Dr Haynes and Dr Love. It had the benefit of their evidence from the witness box unlike that of Mr McCann, a physiotherapist, or Mr Harmes, a podiatrist, both of whom are not medical specialists. Dr Haynes and Dr Love are vastly experienced and qualified medical specialists. They gave their evidence in a fair and impartial way. The upshot of that evidence is that the proposed interventions sought by the Applicant are unlikely to improve the condition of his knee or prevent it deteriorating further so as to satisfy the criteria contained in section 25 (1)(c) of the Act.

102. By reason of the foregoing matters the reviewable decision will be affirmed.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of

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

[1] The reviewable decision is Document T2 of the T-Documents.

[2] The Access Request Form was completed by the Applicant's physiotherapist and signed by him on 2 June 2020.

[3] This concession is made in paragraph 3 of the Respondent's Statement of Facts, Issues and Contentions.

[4] Paragraphs 48 to 55 of the Respondent's Statement of Facts, Issues and Contentions are referred to in their entirety.

[5] Section 3(3)(b) of the Act. Reference is also made to the Explanatory Memorandum to the National Disability Insurance Scheme Bill 2013 which also stated that the purpose of having prescribed access criteria was, amongst other things, to ensure the financial sustainability of the scheme.

[6] See paragraph 14 of the Applicant's closing written submissions.

[7] Paragraph 9 of the Applicant's closing submissions. The term is used frequently in his closing submissions.

[8] These observations were made on page 6 of Dr Haynes's report.

[9] This was acknowledged by the Applicant in cross-examination at page 31 line 22 of the Transcript.

[10] Transcript page 30 lines 28 to 33.

[11] [2019] AATA 2121.

[12] A report from Ms Greene dated 8 December 2020 was in evidence before the Tribunal. She had conducted two assessments of the Applicant. The first, 28 May 2019 and the second 27 November 2020. Her recommendation was that the provision of a motorised scooter would be beneficial to the Applicant. Such equipment would reduce the Applicant's pain levels when ambulating longer distances and therefore enable them to access the community. Her report was specifically prepared for the purposes of the hearing of this application. She did not give evidence at the hearing.

[16] [2020] AATA 4025.

[17] Associate Professor Love conducted a clinical examination of the Applicant on 12 April 2021. A report from him was in evidence before the Tribunal dated 28 April 2021. He conducted a clinical examination of the Applicant's right knee.

[18] Reference is made to the report of Dr Haynes, the NDIS Access Request Form completed by the Applicant's physiotherapist (T-Documents T8/33) and an Occupational Therapy Assessment by Jacqui Greene dated 8 December 2020. Evidence to this effect was given by the Applicant from the witness box.

[19] Paragraph 32 of the Respondent's closing written submissions.

[20] Transcript page 61 lines 45-48 and page 62 lines 1 to 13.