Summary
- In Madelaine and NDIA [2020] AATA 4025 [opens in new window], the Tribunal considered whether a person had substantially reduced functional capacity in one of the activities set out in s 24(1)(c) of the NDIS Act. The Tribunal's provides a good overview of how it approaches this question.
- However, the decision makes some concerning statements about the mobility aspect of functional capacity. The decision emphasises how low the threshold is for a person to have functional capacity in this area, making it extremely difficult for NDIS applications to be made on the basis of substantially reduced functional capacity in this area.
Facts
Teena Madelaine has a range of conditions, including rheumatoid arthritis and chronic regional pain syndrome. She applied in 2017 to join the NDIS. In 2019 her application was rejected. Ms Madelaine sought review of this decision in the Tribunal.
The question for the Tribunal was whether any of Ms Madelaine's impairments resulted in substantially reduced functional capacity to undertake one of more the activities listed in section 24(1)(c) of the NDIS Act [opens in new window].
Ms Madelaine gave evidence that her condition had "good days and bad days". A bad day would result in her being unable to participate in activities outside of the home, and activities inside the home would be affected as well. Bad days occurred two to three times per month, with several days' duration.
Ms Madelaine usually drives her children from the home to the bus stop, a distance of 1.7 km. It takes about 10-12 minutes for Ms Madelaine to get from her house to her car. She drives to a local chemist and supermarket. She uses a four-wheeled walker around the house, or a walker or walking stick in the community. Occasionally, for longer journeys, she is pushed in a wheelchair.
Decision
In order for Ms Madelaine to be a participant in the NDIS, she had to, among other things, meet the disability criteria in s 24 of the NDIS Act [opens in new window]. This includes Ms Madelaine having an impairment or impairments that substantially reduced functional capacity in one of the following areas set out in s 24(1)(c) of the NDIS Act: - Communication
- Social Interaction
- Learning
- Mobility
- Self-Care
- Self Management
(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.
If the person meets (a), (b), or (c) above, then they are deemed as having substantially reduced functional capacity. If the person does not meet one of those criteria, then the Tribunal is required to consider whether generally the person has substantially reduced functional capacity in one of the areas: Decision [56].
At Decision [73], the Tribunal stated that the essential inquiry for the Tribunal entails an assessment of what Ms Madelaine can and cannot do in the face of her impairments, not how much better she could do if she received certain assistance.
The Tribunal found at Decision [75] that there were no activities that Ms Madelaine could not do within an "acceptable period of time" (see s 8.3.1 of the Access to the NDIS Operational Guideline) [opens in new window]. Although that phrase is not defined, the Tribunal stated "that if a task takes so long to complete that
its accomplishment is unreasonably arduous or frustrates its utility, then the
task cannot be said to be completed within an acceptable period of time". The Tribunal rejected Ms Madelaine's claims that she had substantially reduced functional capacity in relation to communication, social interaction, learning, self-management and self-care.
In relation to mobility, the Tribunal observed at Decision [101] that Ms Madelaine could travel from her house to garage and back again (50m) utilising a walking stick, drive her car to the local supermarket and chemist, get up and down from a seated position, and ambulate for 10 minutes in the community, at least on some days.
At Decision [104], the Tribunal stated that:
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 (emphasis added).
At Decision [106], the Tribunal found that, although there is no specific definition in the Guideline for when a person has substantially reduced functional capacity, "it seems reasonable to suggest that a person who
can travel 50 m by herself has the capacity to do the things referred to in the
Guideline".
At Decision [112], the Tribunal stated:
Putting to one side the deeming provision, it seems
axiomatic that a person who, in addition to the level of capacity referred to
in the previous paragraph, is able to drive herself on most days in a motor
vehicle does not experience substantially reduced functional capacity to
mobilise. It is, in the Tribunal’s view, irrelevant that the distance she can
drive is not great, nor that she may not be able to do this indefinitely. The fact
is that she can presently achieve many tasks associated with daily living
through the use of her car, including shopping, consulting her doctor, taking
her children to the bus stop and attending social outings (emphasis added).
Analysis
This decision is concerning for people with disability, particularly those whose mobility may have been impaired by their disability. Although Ms Madelaine could drive, she could only drive very short distances. Although Ms Madelaine could get from the front door of her house to her garage, it is, respectfully, difficult to see how 10 to 12 minutes to accomplish this can be seen as an "acceptable period of time".
The more concerning aspect is the Tribunal's statement that a person who could drive (in addition to being able to walk 50 metres with a walking stick) axiomatically does not have reduced functional capacity in terms of mobility). It doesn't matter whether the person can only drive very short distances - if a person can drive at all, then this decision would suggest that it will not be possible for them to demonstrate a substantial reduction in functional capacity in mobility. This has the capacity to exclude a number of people with disability, who can barely drive or only drive with significant difficulty, from obtaining support under the NDIS that would enable them to increase their community participation.
Additionally, the statement that a person can still have sufficient functional capacity in mobility and crawl from room to room of their house leads to a really unedifying image that is inconsistent with the dignity of people with disability. In my view, the NDIS should be aiming for a higher standard than the one posited by the Tribunal member in this case.
It is important to remember that each Tribunal decision will turn on its own facts, and the Tribunal will consider the specific circumstances of the particular individual, but the breadth of the statements made by the Tribunal in this case about mobility have the potential to become a significant impediment to establishing reduced functional capacity in this area.
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