Almswdni and National Disability Insurance Agency (NDIS)

Almswdni and National Disability Insurance Agency (NDIS) [2025] ARTA 1090 (23 July 2025)
Applicant/s:  GHAIDH ALMSWDNI
Respondent:  NATIONAL DISABILITY INSURANCE AGENCY
Tribunal Number:                2023/9173

Tribunal:General Member Gooch
Place:Adelaide
Date:23 July 2025

Decision:The Tribunal affirms the decision under review under section 105(a) of the Administrative Review Tribunal Act 2024.

Statement made on 23 July 2025 at 5:08pm
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reviewable decision of Chief Executive Officer – becoming a participant- access request – whether applicant meets the access criteria – whether applicant meets the disability requirement – whether applicant has impairments which are, or likely to be permanent – whether impairment or impairments result in substantially reduced functional capacity – whether early intervention requirements met – requirements not satisfied – reviewable decision affirmed.
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24.
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 18, 20, 21, 22, 23, 24, 25, 27, 209
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 Items 14, 126 and 138 of Schedule 1
National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth); rr 5.1, 5.4, 5.8, 6.8, 6.9
Cases
Davis v NDIA [2022] FCA 1002
Mulligan v NDIA [2015] FCA 544
NDIA v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Secondary Materials
Productivity Commission Report, Disability Care and Support
Statement of Reasons

This is a review of a decision by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Agency) to reject an application by Ms Almswdni to access the National Disability Insurance Scheme (the Scheme).
Ms Almswdni is a 62 year old woman living with two adult children and one minor child (a current participant in the Scheme). Ms Almswdni sought access to the Scheme on the basis of impairments attributable to a range of medical conditions, including schizophrenia, post-traumatic stress disorder (PTSD) major depressive disorder (MDD), osteoporosis, hearing loss, fibromyalgia, chronic pain, age related degenerative disease, osteoarthritis, migraine and hypertension.[1]
[1] Respondent’s Statement of Facts, Issues and Contentions p1
On 29 August 2023 a delegate of the CEO decided Ms Almswdni did not meet the access requirements in subsection 21(1)(c) of the National Disability Insurance Scheme Act 2013 (the NDIS Act).
On 9 October 2023 Ms Almswdni applied for an internal review of this decision and on 5 December 2023 another delegate of the CEO affirmed the decision (the decision under review).
On 7 December 2023 Ms Almswdni applied to the Administrative Appeals Tribunal (the AAT) for review of this decision.
From 14 October 2024 the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.[2] This decision and statement of reasons is made by the Tribunal.
[2] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24
A hearing was held over two days on 2 and 3 June 2025 and was conducted by MS Teams video conference. An Arabic interpreter assisted throughout the hearing.
At the hearing the applicant did not have legal representation but was supported by her adult son and daughter. The Agency was represented by Ms Campbell of Counsel instructed by Maddocks Lawyers.
Documents considered included:
a.Respondent’s Hearing Bundle – Exhibit 1
For the reasons set out below the Tribunal affirms the decision under review.

Application for a litigation supporter

At the commencement of the hearing Ms Campbell, Counsel for the Agency, made submissions to the Tribunal that this may be an appropriate matter for the Tribunal to appoint a litigation supporter under section 67 of the Administrative Review Tribunal Act 2024 (the ART Act). Ms Campbell referred to the anticipated evidence of Dr Verma, psychiatrist, to the effect that Ms Almswdni has no capacity to act for herself in relation to this application.
Section 67 of the ART Act provides that the Tribunal may appoint a person to be a litigation supporter if the Tribunal considers that:
a.The party does not have decision making ability; and
b.The appointment is necessary, taking into account the availability and suitability of other measures that would allow the party to participate in the proceeding.
Ms Almswdni was supported at the hearing by her two adult children who are her main caregivers at home. They confirmed that there was no-one else available who would or could attend to give support to their mother throughout the hearing.
With the consent of the parties the Tribunal deferred making a decision on the appointment of a litigation supporter until after hearing the evidence of Dr Verma. Dr Verma’s evidence, subsequently given under affirmation, confirmed that in her assessment Ms Almswdni currently had no capacity to understand her application or manage the Tribunal hearing. Dr Verma’s opinion was that the applicant was either subject to active psychotic symptoms arising from undertreated schizophrenia or suffering from a cognitive impairment arising from dementia. As a result the applicant would be unable to understand or respond appropriately to any questions.
It was the Tribunal’s observation that Ms Almswdni’s responses as relayed by the interpreter did not demonstrate an ability to follow proceedings or respond appropriately. She repeatedly said she did not understand despite us confirming with her adult children that the interpreter was speaking the correct language.
There is currently no panel from which the Tribunal may appoint a litigation supporter. A litigation supporter may only be appointed if they consent to that role. The Tribunal must also ensure that no conflict of interest exists between the appointee and the applicant. An appointment should reflect the likely wishes of the applicant insofar as they may be ascertained.[3]
[3] S67 of the ART Act
In considering whether a litigation supporter ought to be appointed the Tribunal is to give consideration to the availability and suitability of other measures that would allow the person to participate in the proceeding.[4]
[4] S67(1)(b) of the ART Act
Currently Ms Almswdni’s adult daughter acts as her mother’s nominee with Centrelink and has authority to assist with her banking. Her adult son and daughter act together in attending medical appointments with their mother. There is no formal guardian appointed.
Both Ms Almswdni’s adult children were present at the hearing. An interpreter was available to assist Ms Almswdni and her children participate in the hearing to the extent they are able.
I am satisfied the interests of the adult children are aligned with Ms Almswdni’s in wanting to gain access to NDIS supports to assist in her care.
In all likelihood, if the Tribunal were to appoint a litigation supporter, one or other of her children would be considered an appropriate appointee as being persons able to put their mother’s case to the Tribunal. As both children were present at the hearing the Tribunal was of the view there was little to be gained from a formal appointment of either adult child as a litigation supporter. It was not anticipated that Ms Almswdni would be required to make any decisions during the course of the hearing.
The Tribunal declined to make an appointment at this stage.

The legislative framework

The development of the Scheme proceeded on the basis of a report of the Productivity into disability care and support.[5]
[5] Productivity Commission Report, Disability Care and Support
In instituting the recommendations from the Productivity Commission’s report, parliament sought to provide a Scheme which recognised the rights of persons with a disability to self-determination, dignity and the opportunity to live independently as fully participating citizens. This goal was to be balanced by the need to maintain the financial sustainability of the Scheme.[6]
[6] Ss 3 and 4 of the NDIS Act.
The NDIS Act provided for the Agency whose roles was to manage the Scheme and to:
a.Provide general services in the form of co-ordination, strategic or referral services or activities for people with a disability generally;[7]
[7] S13 of NDIS Act
b.Provide funding for persons or entities to enable them to assist people with a disability generally by way of information, building community capacity or by helping people to participate in economic or social life;[8]
[8] S14 of NDIS Act
c.Assist in developing the disability sector by facilitating innovation, research and best practice standards and to assist in building community awareness about disabilities;[9] and
[9] S8 of the NDIS Act
d.Create individual plans providing reasonable and necessary supports for those persons who meet the access criteria to become full participants in the Scheme.[10]
[10] Section 18 of the NDIS Act
The Scheme was not intended to provide individualised plans and reasonable and necessary supports to all persons with a disability. Instead, prospective participants must make an access request. Only if the CEO considered they met the access requirements in sections 21 to 25 of the NDIS Act would they become a Scheme participant.
The statutory provisions relevant to this review are:
a.the Administrative Review Tribunal Act 2024 (‘the ART Act’);
b.the National Disability Insurance Scheme Act 2013 (‘the NDIS Act’) (as in place prior to 3 October 2024); and
c.the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules) made under Sections 27 and 209 of the NDIS Act for the purposes of section 24 and 25 of the NDIS Act.
The Agency also issues Operational Guidelines to assist staff in the administration of the NDIS Act. These are policy documents without legislative force. The guidelines relevant to this review are the NDIS- Applying to the NDIS Guidelines (‘the Access Guidelines’).
The Tribunal is not bound to follow the Access Guidelines and will not do so where they are inconsistent with the NDIS Act.
However, in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2)[11] Brennan J held that a Tribunal should take into account relevant government policy where it is not inconsistent with the provisions or objects of the legislation and does not lead to an unjust decision in the circumstances of a particular case. Therefore, to the extent that they are relevant to this review and not inconsistent with the legislation, the Tribunal will have regard to the Access Guidelines.
[11] (1979) 2 ALD 634
With the passage of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 amendments were made to the NDIS Act, including to sections 24 and 25 of the NDIS Act which address access issues. This amending act commenced on 3 October 2024 and included transitional provisions applying to matters already on foot. Item 126 of Schedule 1 provided that amendments made to sections 24 and 25 of the NDIS Act only apply to applications made after 3 October 2024.
As Ms Almswdni’s application was made after 3 October 2024 the amendments will not apply to this application.
Subitem 126(3) also provides that the Access Rules as in force prior to the amendments will continue to apply to this application.

Tribunal’s jurisdiction

A decision that a person does not meet the access criteria is a reviewable decision.[12]
[12] Item 1 of s99 of the NDIS Act
I am satisfied Ms Almswdni made a request to the Agency for internal review within time.[13]
[13] Page 10 of Exhibit 1
An internal review was conducted by a different delegate of the CEO and on 5 December 2023 the original decision was affirmed. Section 103(1) provides that an application may be made to the Tribunal for review of an internally reviewed, reviewable decision of the CEO.
An application to the Tribunal on behalf of Ms Almswdni was made on 7 December 2023.[14]
[14] Page 1 of Exhibit 1
I am satisfied the Tribunal has jurisdiction to review this decision.[15]
[15] Section 12 of the ART Act

Access request

Once a person makes an access request to the Agency, the NDIS Act provides that the CEO (or their delegate) must decide whether or not the applicant meets the access criteria.[16]
[16] Sections 18 and 20 NDIS Act.
Section 21 of the NDIS Act provides that a person meets the access criteria if:
·The person meets the age requirements set out in section 22 (ie that they were aged under 65 years of age at the time of application)[17];
·The person meets the residence requirements set out in section 23 (eg. that at the time of consideration, the person was a resident of Australia holding citizenship, a permanent visa or protected special category visa)[18]; and
·The person meets the ‘disability requirements’, the ‘early intervention requirements’ or both.[19]
Sections 24 and 25 of the NDIS Act (respectively) set out the disability requirements and early intervention requirements that must be met.

S24 - The Disability Requirements
[17] Section 22 NDIS Act
[18] Section 23 NDIS Act
[19] Sections 24 and 25 (respectively) NDIS Act

As the amendments to access criteria made on 3 October 2024 only apply to applications made after that date[20] the relevant wording of Section 24 is as follows:
[20] Item 126 of Schedule 1 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024
(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:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self‑care;
(vi)self‑management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4) Subsection (3) does not limit subsection (2).
The requirements of section 24 of the NDIS Act are cumulative such that all criteria must be met before the person can be said to meet the disability requirements.

S25 - The Early Intervention Requirements

Section 25 deals with access to the scheme on the basis of the ‘early intervention requirements’ as follows:
(1) A person meets the early intervention requirements if:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)is a child who has developmental delay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
Note:In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(1A)For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(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 Access Rules for the purposes of this subsection.
(3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)as part of a universal service obligation; or
(b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The Access Rules set out further matters to be considered in determining when an impairment might be permanent and in deciding the significance of any reduction in functional capacity. I will discuss those later.

The decision under review

In its Statement of Facts, Issues and Contentions (SFIC) the Agency states they accept Ms Almswdni:
a.Meets the age and residency requirements under section 22 and 23 respectively. I have considered the evidence and I accept Ms Almswdni does meet these requirements.
b.Has a disability attributable to a psychosocial impairment as a result of schizophrenia, PTSD and MDD;[21]
c.Has a disability attributable to a physical impairment as a result of osteoporosis, fibromyalgia, chronic pain, age related degenerative disease, osteoarthritis and migraine;[22] and
d.Has a disability attributable to a sensory impairment as a result of her hearing loss.[23]
e.Does not have a disability attributable to an impairment as a result of hypertension as this condition is well controlled by medication.[24]
[21] Agency SFIC [31.1]
[22] Agency SFIC [31.2]
[23] Agency SFIC [31.3
[24] Agency SFIC [32]
In relation to the accepted impairments the Agency states:
a.It does not accept Ms Almswdni’s psychosocial impairments are permanent or likely to be permanent as the conditions have not yet been definitively diagnosed or subject to optimal treatment.[25]
b.It does not accept any impairment related to the condition of osteoporosis is permanent or likely to be permanent as Ms Almswdni ceased treatment that was reported to be improving the condition.[26]
c.It did not accept any impairment related to osteoarthritis or age-related degenerative disease was or was likely to be permanent. The Agency’s view was that it appeared there may be known, available and evidence-based treatments that might remedy the condition and therefore any related impairment.[27]
d.It did not accept there was sufficient evidence available to make a finding any impairment arising from fibromyalgia was or was likely to be permanent.[28]
e.It did not accept there was sufficient evidence available to make a finding that any impairment arising from migraine was or was likely to be permanent.[29]
f.It accepts sensory impairment arising from hearing loss is permanent but that this does not substantially reduce Ms Almswdni’s functional capacity in any of the relevant activities.[30]
g.it does not accept the early intervention requirements are met.[31]
[25] Agency AFIC [33] – [39]
[26] Agency SFIC [40] – [42]
[27] Agency SFIC [43] – [48]
[28] Agency SFIC [49] – [52]
[29] Agency SFIC [53] – [55]
[30] Agency SFIC [56] and [60]
[31] Agency SFIC [93] –[101]

The applicant did not provide any written submissions in response but in oral submissions her son advised the Tribunal that Ms Almswdni was not functioning at all and for her own safety could not be left alone. This was causing significant stress on the family. They had tried their hardest as a family to obtain appropriate medical treatment but this had been hampered by language barriers and limited financial resources. Their attempts were made more difficult by Ms Almswdni refusing to disclose all her symptoms to medical practitioners and also refusing recommended medication at times.
The family are desperate for assistance in caring for their mother.

Issues before the Tribunal

I consider the issues before the Tribunal are:
a.Are any of Ms Almswdni’s impairments ‘permanent’ in the manner contemplated by the NDIS Act?
b.If so, do any of the permanent impairments result in substantially reduced functional capacity to undertake any of the six activities identified in section 24(1)(c) of the NDIS Act?
c.If so do the impairments affect Ms Almswdni’s capacity for social or economic participation?
d.If so, is she likely to require supports under the NDIS for her lifetime?
e.Are the early intervention requirements met?

Are any of Ms Almswdni’s impairments permanent?

The NDIS Act speaks of ‘disabilities’ and ‘impairments’ but neither are defined in the Act.
Section 24 of the NDIS Act and Rule 5.1 of the Access Rules speaks of a person ‘having a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to impairments attributable to a psychosocial disability’.
In Mulligan v NDIA [215] FCA 544 (Mulligan), a matter on appeal from the Tribunal, Mortimer J (as she then was) observed that the access criteria in Ch 3 of the NDIS Act were an essential component of the NDIS, as they imposed a number of thresholds which must be met before access to the NDIS would be granted. The purpose of these thresholds was to identify the ‘subcategory of persons with a disability intended to be beneficiaries of the Scheme’.[32]
[32] Mulligan v NDIA [215] FCA 544
Mortimer J said:
The term ‘disability’ is used in the Act, and in s24, 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 s24 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.[33]
53. The primary consideration for access requests, therefore, is the concept of ‘impairment’. It is:
a.the prospective participant’s impairment which must be permanent (not the underlying medical condition); and
b.the severity of the impairment’s impact on function which will determine whether the prospective participant may be eligible for access to the Scheme or not.
[33] Ibid at [51]
Permanency of an impairment is essential, as obviously, if the effects of a condition on a person’s ability to engage in life activities (the impairment) may be ameliorated by treatment, the person’s need for supports may be lessened or negated.
In Davis v NDIA [2022] FCA 1002 (Davis), Mortimer J held that ‘permanent’ did not mean ‘irreversible’ or ‘untreatable’ (as contended by the Agency) nor just ‘longstanding’ (as contended by the applicant). Rather she considered the correct meaning of ‘permanent’ when considered in the context of ‘impairment’ was ‘enduring’.[34]
[34] Davis at [87]
Section 27 of the NDIS Act provides for the making of rules for determining any matter for the purpose of sections 24 and 25. The Access Rules were made for this purpose.
Rules 5.4 to 5.7 are the rules relevant to the issue of permanency. Rule 5.4 provides that:
An impairment is, or is likely to be, permanent … only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
In Davis, Mortimer J held that ‘to remedy’ meant more than ‘just to relieve or improve’ an impairment. Rather the term should be interpreted to mean something akin to ‘a removal or cure of the impairment’.[35]
[35] National Disability Insurance Agency v Davis [2022] FCA 1002 at [136]
In order to be ‘enduring’ therefore, an impairment must remain after all known, available and appropriate, evidence-based clinical, medical or other treatment has been tried.
It is self-evident that what constitutes ‘known, available, appropriate and evidence-based treatment’ may only be determined after clinical diagnosis has been made.
I will consider the evidence as to Ms Almswdni’s impairments in light of these observations.

Schizophrenia

A diagnosis of schizophrenia was first made in relation to Ms Almswdni by Dr Rose Cantali, clinical psychologist, in a report dated 13 June 2023.[36] This is despite Ms Almswdni having been seen by a psychiatrist, Dr Raiz Ismail, since 2022. Dr Cantali recorded that Ms Almswdni did not disclose all her symptoms (such as hallucinations and paranoia) to Dr Ismail due to concerns about the consequences of doing so. Consequently, Dr Ismail did not have all necessary information on which to base a diagnosis and treatment plan.
[36] Page 263 of Exhibit 1
After Dr Cantali’s report Ms Almswdni continued to see Dr Ismail for treatment for major depressive disorder. It appears he was not provided with a copy of the report of Dr Cantali and that Ms Almswdni continued to withhold information about her additional symptoms.
However, a notation in a letter from Dr Ismail to the NDIS dated 18 October 2024 suggested he had concerns about her cognition despite her withholding information. He recommended an investigation to rule out whether Ms Almswdni’s presentation was affected by dementia with behavioural and psychological symptoms of that condition.[37]
[37] Page 272 of Exhibit 1
Ms Almswdni was referred by her general pracitioner to Dr Wael Wahaib, senior consultant psychiatrist. Dr Wahaib first saw Ms Almswdni on 26 October 2024, recording Ms Almswdni had been hearing commanding and commentary voices, which she found threatening, for a few years. He noted she slept poorly, talked loudly, had a memory deficit and was totally dependent on her sons. He noted a family history of schizophrenia. His diagnosis was of post-traumatic stress disorder, major depressive disorder and schizophrenia.
Dr Wahaib’s proposed treatment plan included psychoeducation about the illness, baseline health investigations and commencement of olanzepine, 5mg at night. It is not clear whether this was to replace or accompany any anti-depressant medication prescribed by Dr Ismail. The GP was asked to manage any side-effects of the medication and any mental health crisis that arose.
In his oral evidence Mr Ivan Almswdni, the applicant’s son, stated his mother had not been back to see Dr Wahaib for follow-up. Instead Dr Wahaib telephoned his sister, Ms Reem Almswdni to very briefly discuss his mother’s progress on the medication. In a report to the GP dated 7 January 2025 Dr Wahaib recorded Ms Almswdni continued to have poor sleep with nightmares, difficulty with daily activities and was observed talking to herself. He recommended an increase in the Olanzepine dose to 10mg at night.
Mr Almswdni confirmed that the GP advised them the Olanzepine was to be increased. He believed his sister, who manages his mother’s medication, arranged this. Mr Almswdni agreed he needed to make a follow-up appointment with Dr Wahaib for his mother.
Mr Almswdni also gave evidence that one of the doctors who had seen his mother had suggested she be admitted to hospital for assessment. Mr Almswdni said he would not be happy with this option because:
a.A nephew had previously been admitted to a mental health unit and was there for seven months and did not get better; and
b.Mr Almswdni’s younger brother, diagnosed with autism, would be very distressed if his mother was not at home. This would make caring for him much more difficult.
Dr Verma, psychiatrist, undertook a telehealth assessment of Ms Almswdni on instruction from the Agency. This took place on 12 March 2025. In her report dated 13 March 2025 Dr Verma:[38]
[38] Pages 366 -377 of Exhibit 1
a.noted that Ms Almswdni did not answer any questions put to her, despite the attending interpreter phrasing questions in a variety of ways. Ms Almswdni just either responded with ‘I don’t understand’ or talked about irrelevant topics to her son.
b.noted the report was therefore based only on information obtained from the son, Ivan, and from information in prior reports.
c.recorded a history of Ms Almswdni having always been prone to fluctuating moods and anger outbursts, but that up until two years ago she had still been able to function. Mr Almswdni reported a significant decline in his mother’s function after the death from cancer of his father, describing weeping, low mood and lack of motivation. He said Ms Almswdni ‘gradually became a child’, would imagine people following her and talking about her and could be observed muttering to herself.
d.recorded Mr Almswdni’s description of his mother’s current function as spending a lot of time playing with stuffed toys, not being aware of her surroundings, sometimes behaving in an unsafe manner, not eating much and having forgotten learned skills such as household chores and self-care. Dr Verma observed Ms Almswdni playing with a stuffed toy throughout her assessment.
e.noted a family history of schizophrenia with an elder sister also having that diagnosis.
f.noted Ms Almswdni’s judgement was impaired and she lacked insight into her condition.
g.diagnosed DSM5-Schizophrenia based on the presence of hallucinations, disorganised speech and grossly disorganised or catatonic behaviour for at least six months, with functioning in either work, interpersonal relationships or self-care markedly below the prior level of function.
h.recommended further investigations to rule out an alternative diagnosis of dementia
i.observed previous treatments had not been effective with no significant improvement in depressive symptoms even after having been prescribed anti-depressants for five years and having only just started taking olanzepine. Dr Verma characterised these treatments as suboptimal, stating the olanzepine dose was not yet at the right level, and, in her view, not the best choice of medication.
j.recommended referral to a community mental health service or an inpatient admission to allow optimisation of medication to be managed, alongside complementary psychological interventions to assist with reality testing.
In her oral evidence to the Tribunal Dr Verma confirmed the above information and stated that current recommended treatment guidelines identified the preferred antipsychotic was aripiprazole, not olanzepine.
Dr Verma noted that generally the long-term prognosis for schizophrenia after the commencement of effective levels of treatment is that 1/3 of people recover fully, 1/3 continue to have a relapsing/remitting illness and that 1/3 do not respond to treatment at all.
Once on optimised treatment Dr Verma would expect a person to experience some improvement within a week or so, with a 50-70% improvement taking anywhere from three to five months.
I acknowledge Dr Verma’s opinion as to the particular type of medication that ought to be prescribed. I accept, however, that medical professionals may have differing views as to the appropriate prescription to be issued. I can only accept that Dr Wahaib, as a senior consulting psychiatrist, has prescribed the anti-psychotic medication he felt was appropriate for his patient.
I do, however, accept Dr Verma’s expert evidence that the dosage of Olanzepine prescribed had not yet been reached an optimised level likely to properly treat Ms Almswdni’s schizophrenia.
I have considered the occupational therapy report of Ms Jessica Harper produced after an assessment of Ms Almswdni in her own home on 22 November 2024.
At 3.3.4 of the resulting report Ms Harper has provided a list of medications that Ms Almswdni was taking at that time.[39] In her oral evidence Ms Harper informed the Tribunal this list was generated from information provided by the family. She advised the Tribunal she went through all the medication boxes present, took photographs of them and confirmed with the family that those were the medications currently being taken by Ms Almswdni.
[39] Page 313 of Exhibit 1
Ms Harper confirmed that at that time, no olanzepine medication was present, despite Dr Wahaib having prescribed this medication at an appointment a month earlier.
I have also had regard to the oral evidence of Ms Reem Almswdni in which she listed the medications her mother was taking and did not include olanzepine. I have also had regard to her evidence that her mother can be difficult and often refuses her medication.
While I am satisfied that the evidence suggests a diagnosis of schizophrenia has been made and may be correct (plus or minus a dementia diagnosis) I am not satisfied the evidence supports a finding Ms Almswdni’s schizophrenia has yet been subject to all known, available, appropriate and evidence-based treatment.
As a result I am not satisfied that any psychosocial impairment attributable to Ms Almswdni’s schizophrenia could be said to be permanent for the purposes of the NDIS Act.

Dementia

It is suggested that a differential diagnosis which may explain Ms Almswdni’s behaviours may be dementia with behavioural and psychological symptoms of that diagnosis.[40]
[40] Page 272 and page 375 of Exhibit 1
I have had regard to the oral evidence of Ivan Almswdni in which he states he has been unable to afford the $1,500 cost for Ms Almswdni to be assessed for dementia. I have a great deal of sympathy with the family and wonder why public services have not been utilised to assist them in obtaining a proper diagnosis and supports.
Nevertheless, without a definitive diagnosis I am unable to make a finding that this is a condition productive of a permanent impairment. Certainly, if that diagnosis is confirmed, such a finding could likely be made.
It would be open to Ms Almswdni to make another application to the NDIS at that point.

Post-traumatic stress disorder (PTSD)

PTSD has been diagnosed by Dr Rose Cantali,[41] and Dr Wahaib.[42]
[41] Page 263 of Exhibit 1
[42] Page 274 of Exhibit 1
Dr Mahmoud Abu-Arab, psychologist, spoke of ‘associated post-traumatic symptoms’ but considered the appropriate diagnosis was major depressive disorder.[43]
[43] Page 35 -36 of Exhibit 1
No PTSD specific treatment has been referred to in the documentation provided. Ms Almswdni participated in cognitive behavioural therapy program with Dr Abu-Arab but it appears this was directed at her major depressive disorder instead.
I am not satisfied there is enough evidence to support a finding that PTSD has been subject of all known, available, appropriate and evidence-based treatment. I find that any resulting impairment cannot be considered to be permanent.

Major depressive disorder

Ms Almswdni has been treated by a psychiatrist, Dr Ismail, since February 2022. He made a diagnosis of major depressive disorder and prescribed varying doses of an antidepressant, mirtazapine.[44] Ms Almswdni had earlier been prescribed Endep and referred to a psychologist who undertook cognitive behavioural therapy.
[44] Pages 47, 49, 50, 54, 55, 56, 57 of Exhibit 1
Over time under Dr Ismail’s care Ms Almswdni’s prescribed dosage of mirtazapine increased from 15mg to 60mg at night. However, each letter from Dr Ismail to the treating GP described no improvement in Ms Almswdni’s mood or presentation. Despite this, no alternative treatments or antidepressants were suggested or explored by Dr Ismail.
Dr Verma gave as her opinion that psychiatric treatment provided to date, including the use of anti-depressants, had been sub-optimal and unsuccessful. It was Dr Verma’s opinion that Ms Almswdni ought to be admitted to hospital to allow optimisation of her medication, stabilisation of her symptoms and access to multi-disciplinary services.[45]
[45] Page 377 of Exhibit 1
I am not satisfied that this condition has been subject to all known, available, appropriate and evidence-based treatment. I am unable to be satisfied any resulting impairment can be considered to be permanent.

Osteoporosis

This condition was successfully treated with Prolia medication prescribed by Dr Gotis-Graham in 2018. Unfortunately, Ms Almswdni ceased treatment without consulting her doctor and suffered a deterioration in her condition in 2020.
Ms Almswdni was then trialled on a different medication, Actonel, which was not successful in improving her bone density and was ceased.
In 2022 Dr Gotis-Graham trialled Ms Almswdni on treatment involving Aclasta infusions.
Dr Gotis-Graham notes a treatment regime of Aclasta (with Caltrate and vitamin D) had been successful in producing a 6% increase in Ms Almswdni’s bone density.[46]
[46] Page 473 of Exhibit 1
I am satisfied that this condition has been and is being treated with all known, available, appropriate and evidence-based treatment. Ms Almswdni’s condition is noted to still be improving with an increase in bone density recorded on 16 September 2024.[47]
[47] Page 473 of Exhibit 1
If there is any impairment, which has not been identified in the documents provided to the Tribunal, I find on the basis of the letter of Dr Gotis-Graham identifying continuing improvements in bone density, that such impairment cannot be considered to be permanent at this stage.

Hearing loss

On the basis of the report of Stephen Cai, Audiometrist, the Agency accepts that Ms Almswdni suffers a permanent sensory impairment due to bilateral hearing loss.
I have considered the report of Mr Cai and agree it records a mild sensorineural hearing loss in both ears.[48]
[48] Page 46 of Exhibit 1
No other abnormalities were recorded. No treatment was recommended.
I accept this is a condition results in a sensory impairment which is permanent for the purpose of the NDIS Act.

Migraine

Ms Almswdni was referred to Dr Ibrahim Hanna, Neurologist, for investigation of chronic migraine headache and episodes of vertigo with tinnitus. In a report dated 30 June 2021 Dr Hanna noted that all investigations were normal for her age and that he suspected she was likely just experiencing migraines. He prescribed Sandomigran medication and intended to review her after two months.[49] No further letters from Dr Hanna were in the documents provided.
[49] Pages 43 to 45 of Exhibit 1
A letter from Dr Husam AlKurdi, general practitioner, dated 23 October 2024 advises the migraine headaches continue to occur. These appear to be episodic in nature and Dr AlKurdi advises they do not affect her cognitive function. He suggested she may need to return for further neurological assessment.[50]
[50] Page 276 and 277 of Exhibit 1
Without more I am unable to make a finding that there is any permanent impairment arising from the condition of episodic migraine. Dr AlKurdi’s letter suggests further treatment may be required.

Hypertension

A medical report from Dr Husam AlKurdi dated 23 October 2024 states that Ms Almswdni’s hypertension is well controlled with medication.[51]
[51] Ibid
The evidence does not support a finding that Ms Almswdni has any permanent impairment arising from this well controlled medical condition.

Age related degenerative disease and osteoarthritis

Dr Gotis-Graham recorded that an X-ray of Ms Almswdni from 2018 revealed a definite wedge fracture of T7-9 with 20% or greater loss of height. He also noted evidence of bilateral rotator cuff impingement syndrome and right shoulder bursitis, cervical and lumbar spine degenerative disease (with MRI in 2017 showing degeneration but no nerve root compression and recent x-ray showing disc damage from C3-5) and a right knee medial meniscus tear addressed with arthroscopy.[52] It was Dr Gotis-Graham’s opinion that fibromyalgia was the dominant condition in Ms Almswdni’s presentation.
[52] Page 474 of Exhibit 1

Dr Balsam Darwish, neurosurgeon, assessed Ms Almswdni in 2017, noting that at that time there was evidence of arthritic changes in both knees, both shoulders, both writs and in the small joints of both hands. There were disc bulges at C4/5 and C5/6 but no obvious nerve root or spinal cord compression. Degenerative changes were demonstrated in her lumbar spine from L3 to S1 but with no nerve root compression. Dr Darwish advised Ms Almswdni there was no basis for surgery.[53]
[53] Page 477 of Exhibit 1
A physiotherapy report dated 29 April 2019 noted acute on chronic discogenic cervical and lumbar spine pain with all movements restricted and painful. Temporary relief but no overall improvement was reported after physiotherapy treatment.[54]
[54] Page 485 of Exhibit 1
CT of Ms Almswdni’s cervical and lumbar spines reported on 21 February 2021 recorded:
a.multilevel disc disease most prominent at C4/5 and C5/6 with moderate stenosis possibly impinging on exiting nerve roots; and
b.multi-level disc disease from L3-S1 with osteophyte complex and fact arthrosis causing multi-level stenosis which may impinge nerves.
A report of Dr Robert Dettmers, Orthopaedic Fellow, dated 15 August 2022 recorded Ms Almswdni’s knee arthritis, as demonstrated on x-ray, as ‘not too bad’ and ‘not congruent with the amount of symptoms she has’.[55]
[55] Page 53 of Exhibit 1
Dr Loretta Rozario, rheumatologist, in letters dated 21 November 2023 and 20 March 2024 recorded that Ms Almswdni continued to report pain and swelling in her knees, difficulty walking and worsening pains. Dr Rozario declined to undertake further investigations as these had been completed recently and showed little or no abnormalities at that time. It was her view Ms Almswdni’s presentation suggested fibromyalgia. She recommended an intense exercise program, Endep 25mg at night, Cymbalta 60mg in the morning and Panadol Osteo daily. Ms Almswdni was encouraged to be active. Dr Rozario wrote:
She has been encouraged to use the medication as she feels she has all this pain but is not keen on using any medication.
I note that none of the medications recommended by Dr Rozario were recorded by Ms Harper, OT, as being part of Ms Almswdni’s current medication regime.[56]
[56] Page 313 of Exhibit 1
A report by Moustafa Moutasallem, physiotherapist, dated 30 October 2023, noted independence with transfers with minimal to moderate assistance depending on pain levels, antalgic gait with internally rotated lower limbs and reduced step length. She was noted to be deconditioned. Mr Moutasallem recommended a structured supervised physiotherapy program with emphasis on limb strengthening to prevent further deconditioning, range of motion exercises, proprioception and balance exercises, symptomatic relief and cardiovascular fitness improvement. No follow up was provided to advise whether this program was followed. Ms Harper, OT, recorded in her assessment, that although family reported fortnightly physiotherapy treatment, those sessions reportedly focussed on massage.
I acknowledge that Ms Almswdni has age-related degenerative disease and osteoarthritis affecting her joints and spine. In the opinion of the medical specialists, this degenerative disease is mild and would ordinarily not cause significant pain or loss of function. It is the opinion of the medical specialists that Ms Almswdni’s reports of pain are incongruent with the level of pathology observed. I have also been provided with no evidence that recommended treatment proposals, including an active physiotherapy/exercise program and recommended medications for pain relief, have been implemented.
I am therefore unable to be satisfied that the evidence supports a finding any impairment arising from age-related degenerative disease and osteoarthritis is permanent as contemplated by the Access Rules.

Fibromyalgia

Dr Gotis-Graham in all his correspondence, but particularly his letter dated 4 April 2025, considers that the predominant cause of Ms Almswdni’s widespread pain is fibromyalgia. In his view Ms Almswdni’s pain response is excessive and out of proportion to her age-related degenerative changes. Dr Gotis-Graham made this diagnosis in 2018 after deeming Ms Almswdni met all the AAPT criteria for fibromyalgia, including 6 or more painful sites, fatigue and sleep disturbance and symptoms persisting for 3 months or more.[57]
[57] Page 288 of Exhibit 1
Dr Gotis-Graham noted that the diagnosis of fibromyalgia is heavily reliant on patient reporting of symptoms and severity. There is no objective criteria available (clinical or imaging) to establish the diagnosis of fibromyalgia or to assess severity. In his view the age-related degenerative musculoskeletal disease demonstrated on radiology would otherwise result in a minimal impact on Ms Almswdni’s ability to function.[58]
[58] Page 291 of Exhibit 1
In Dr Gotis-Graham’s view, fibromyalgia is a chronic condition in which the severity and intensity of pain will fluctuate over time. He did not expect this condition would resolve.[59]
[59] Page 290 of Exhibit 1
As to impairment, Dr Gotis-Graham simply stated ‘she states that pain limits her function’. He noted ‘the pain distresses her and affects the quality of her life.’ In his view fibromyalgia was the predominant medical problem that restricts Ms Almswdni’s function.[60]
[60] Page 290 of Exhibit 1
Considering treatment for the condition Dr Gotis-Graham noted that Lyrica was trialled but found to be ineffective. A trial of Epilim was recommended but Dr Gotis-Graham was unsure whether Ms Almswdni used this medication or not. He noted major barriers to treatment including language barriers, poor health literacy, anxiety and fear. He felt Ms Almswdni’s reporting was dependent on many factors, including her mental health status (anxiety and depression) and her desire for secondary gain.[61] Dr Gotis-Graham recommended Ms Almswdni may benefit from a review by a psychologist experienced in chronic pain management and/or a chronic pain management clinic. He felt it unlikely, however, that this treatment would remedy the fibromyalgia and therefore was unlikely to remedy any impairment associated with or due to fibromyalgia.[62]
[61] Page 291 of Exhibit 1
[62] Page 293 of Exhibit 1
Dr Rozario, consultant rheumatologist, assessed Ms Almswdni in 2021, 2023 and 2024 in relation to her fibromyalgia. She agreed with Dr Gotis-Graham that the degenerative changes observable in radiology were unremarkable and did not show evidence of significant joint disease. Dr Rozario confirmed a diagnosis of fibromyalgia was likely.
In her letter dated 20 March 2024 she recommended an intense exercise programme, increasing levels of physical activity, Endep 25mg at night, Cymbalta 50mg in the morning and Panadol Osteo. No follow up letter is in the joint hearing bundle to indicate Ms Almswdni participated in this program of treatment. I note the report of Jessica Harper did not record either Endep or Cymbalta in Ms Almswdni’s medication regime and noted the family reported that fortnight physiotherapy sessions were focussed on massage only.[63]
[63] Page 313 of Exhibit 1
Mr Moustafa Moutasallem, physiotherapist, provided a report dated 30 October 2023 to assist with the NDIS application. He did not include fibromyalgia as a diagnosis for Ms Almswdni.
Mr Moutasallem recommended a structured, supervised physiotherapy exercise program to prevent further deconditioning, to increase limb strength and improve balance and fitness. No follow up report is provided to confirm whether Ms Almswdni undertook these recommendations.[64]
[64] Pages 132 to 140 of Exhibit 1
In her oral evidence to the Tribunal Dr Verma expressed the view that fibromyalgia was commonly noticed in persons with mental health illnesses such as depression and anxiety. She stated that proper treatment of the underlying mental health condition could have an impact on the person’s perception of pain, and so reduce the functional impact of the fibromyalgia. Dr Verma did not think treatment of schizophrenia would have an impact on Ms Almswdni’s experience of pain but may improve the functional regression attributable to that condition.
Overall, on the basis of Dr Gotis-Graham’s opinion, which specifically addressed the question, I am satisfied that the condition of fibromyalgia is likely to be permanent, despite any further treatment that may be given. This condition has resulted in the neurological impairment of pain.
Rule 5.4 provides that an impairment is or is likely to be permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
I have had regard to the comments in Davis, in which Mortimer J considered ‘remedy’ ought to be considered as approaching a ‘cure’ or ‘removal’ of the impairment.[65]
[65] Davis v NDIA [2022] FCA 1002
I acknowledge that recommendations for management of her condition have been made to Ms Almswdni which appear not to have been followed through. I refer to Dr Gotis-Graham’s recommendation for chronic pain clinic referral, Dr Rosario’s recommendation for an intensive exercise program, anti-depressant and pain management and Dr Verma’s view that treatment of her underlying depression may alter Ms Almswdni’s perception of pain.
Ultimately, despite these treatments not having been completed, I accept Dr Gotis-Graham’s opinion that although these treatments might have assisted Ms Almswdni in managing her fibromyalgia, they are unlikely to remedy the impairment in the manner contemplated by Mortimer J in Davis.
I find Ms Almswdni has a neurological impairment (pain) attributable to fibromyalgia which is permanent.

Do any of the permanent impairments substantially reduce Ms Almswdni’s functional capacity to undertake relevant activities?

To meet the disability requirements, section 24(1)(c) provides that functional capacity must be substantially reduced in at least one of the following six activities as a result of the applicant’s permanent impairment:
a.    Communication;
b.    Social interaction;
c.     Learning;
d.    Mobility;
e.    Self-care; or
f.   Self-management.
Although identified in the NDIS Act, there is no definition, either in the Act or the Rules, which clarifies the scope of each of the identified activities. However, some guidance is provided in the Access Guidelines as follows:
a.    Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
b.    Socialising – 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.
c.    Learning – how you learn, understand and remember new things, and practise and use new skills.
d.    Mobility, or moving around – 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.
e.    Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
f.     Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.[66]
[66] NDIS Access Guidelines October 2024

Legal Principles

In order to meet the requirements of subsection 24(1)(c) of the NDIS Act, the decision maker (the CEO, a delegate or the Tribunal) must be satisfied the applicant’s relevant impairments result in substantially reduced functional capacity in at least one of the nominated activities.
The legislative scheme contemplates a relatively high degree of precision by decision-makers in assessing functional capacity. The necessary assessment is said to be ‘avowedly functional and multi-faceted’ but does not involve a comparative or qualitative assessment of the ‘seriousness’ of the relevant impairment. The focus is simply on a practical assessment of what the applicant can and cannot do. [67]
[67] Mulligan and National Disability Insurance Agency [2015] FCA 544 (Mulligan) at [55] to [56]
In NDIA v Foster [2023] FCAFC 11 (Foster) the Court held that the Tribunal’s task was to assess the degree to which the person could participate in the activity as a whole, not just one particular task in that activity. [68]
[68] Foster at [88]
In Mulligan[69] the Court held that the statutory task before the Tribunal in considering an access request was to consider whether a person’s functional capacity is substantially reduced as a result of the [identified, permanent] impairment.
[69] Mulligan at [50]
I will consider the two permanent impairments I have identified in the light of these observations.

Sensory Impairment attributable to hearing loss

The report of Steven Cai, Audiometrist, Hearing Australia, dated 17 January 2023 records Ms Almswdni’s attendance for audiological assessment.
Results showed a mild sensorineural hearing loss in both ears. All other assessments were normal.[70]
[70] Page 46 of Exhibit 1
I consider that hearing loss is most likely to impact on a person’s capacity for the activity of communication. I consider that a mild sensorineural hearing loss, by definition, is not likely to result in a substantially reduced functional capacity in relation to the activity of communication.
During the hearing the Tribunal observed Ms Almswdni responding to the interpreter when a question was posed. Although her response did not appropriately answer the question posed, it was clear that Ms Almswdni heard the question and understood a response was required.
I accept that Ms Almswedni demonstrates a significantly reduced functional capacity for communication in that she responds to auditory hallucinations, gives irrelevant replies to questions and otherwise disengages in conversation. I am satisfied this incapacity does not arise from her sensory impairment however, but rather from her undertreated schizophrenia or undiagnosed dementia.
I find Ms Almswdni’s sensory impairment does not result in substantially reduced functional capacity to undertake communication, or any of the other activities identified in section 24(1)(c) of the NDIS Act.

Neurological impairment attributable to fibromyalgia

The report of Mr Ramon Amores, Occupational Therapist, dated 27 November 2023 does not discuss Ms Almswdni’s fibromyalgia. His assessment relied in part on observation and in part on reporting from Ms Almswdni’s adult children. Throughout the assessment Mr Amores noted that Ms Almswdni’s capacity for a variety of tasks (including showering, dressing, grooming, feeding, meal preparation, cleaning and shopping) was impacted by her physical and emotional limitations. In his assessment he concluded:
a.Ms Almswdni demonstrates difficulty in mobility and transfers due to generalised pain, limited range of motion, emotional regulation difficulties and presence of obstacles in her physical and social environment at home and in the community.
b.Ms Almswdni demonstrates poor independent management of self-care tasks, including toileting, showering and dressing due to poor mobility resulting from her generalised pain, emotional regulation difficulties and presence of obstacles in her social environment at home.
c.Ms Almswdni is unable to participate in domestic activities such as cleaning, meal preparation, accessing the community and shopping due to poor mobility resulting from her generalised pain, emotional regulation difficulties and presence of obstacles in her physical and social environment at home and in the community.[71]
[71] Pages 144-153 of Exhibit 1
I understand this to mean that the functional incapacities Mr Amores identified were attributable to not only Ms Almswdni’s pain, but also to her impaired mental state and the social environment in which she was observed.
The report of Moustafa Moutasallem, physiotherapist, dated 30 October 2023, also does not consider fibromyalgia as an applicable condition. He identified that Ms Almswdni required neurological assessment to determine why she had reduced muscle strength. He noted that as a result of her major depressive disorder and other symptoms … ‘[Ms Almswdni] often remains at home and this has led to increased weight which has resulted in pain’. His report does not assist in identifying any impairment arising from fibromyalgia.[72]
[72] Pages 132 to 140 of Exhibit 1
Dr Gotis-Graham in his report dated 4 April 2025 noted that Ms Almswdni reported pain limits her function. He said ‘it distresses her and affects the quality of her life’. He does not say how.
Ms Jess Harper undertook an occupational therapy assessment of Ms Almswdni in her own home. Her subsequent report was dated 18 December 2024 and noted:
a.Ms Almswdni was independent in the activity of verbal communication, but that this was heavily affected by her mood. Her children noted she had never attended school and was unable to read or write.
b.She had difficulty in maintaining friends but this arose from her mental health conditions, including low mood, and not her fibromyalgia. She had low engagement with the community but this arose from language barriers and psychological barriers as well as her physical limitations.
c.Ms Almswdni’s children reported she had difficulty in learning new things, and in fact she had demonstrated increasing difficulty with her memory and concentration. Ms Harper opined this difficulty likely arose from the interaction with her pain and her psychological or cognitive impairment.
d.Ms Almswdni was observed being able to walk with a single point stick within her home, including multiple transfers, but always wanting her arm to be held by her daughter. In her oral evidence to the Tribunal Ms Harper was of the view the daughter’s ‘support’ was minimal, and more in the form of reassurance than physical assistance. Ms Harper was of the view it would be safer for Ms Almswdni to rely on walking aids than another person. She was observed to be able to walk, transfer, demonstrate dressing tasks and return to the lounge for a total of 12 minutes of mobilisation. It was noted that Ms Almswdni was a falls risk which, according to her children arose from her poor balance, fatigue, pain, migraines and being distracted when walking due to talking to herself. There were a number of aids that Ms Harper thought would improve Ms Almswdni’s safety and independence.
e.Ms Harper observed that Ms Almswdni was independent in toileting at home and grooming. Although it was Ms Harper’s opinion that Ms Almswdni would be able to manage the majority of self-care activities independently with some commonly used supports, Ms Almswdni currently relied on her daughter for assistance in all other self-care tasks. The family reported this was due partly to pain and partly to her psychosocial symptoms.
f.Ms Harper was of the opinion Ms Almswdni should have the capacity for basic decision making but tended to leave all these tasks to her children. Ms Harper queried whether there was an impact on self-management from the cognitive impairment identified by Dr Ismail.[73]
[73] Pages 303 – 356 of Exhibit 1
Dr Verma, psychiatrist, provided a report dated 13 March 2025. In this report Dr Verma confirmed a diagnosis of schizophrenia based on reporting of auditory hallucinations and behavioural symptoms such as forgotten learned skills (such as the use of appliances such as the washing machine and microwave) and functional regression (including inability to perform household chores she was previously able to and struggling with personal hygiene). Dr Verma noted an alternative diagnosis which might explain these lapses may be dementia.

I acknowledge that Ms Almswdni appears to have significantly reduced functional capacity generally.
However, on the basis of the evidence available to the Tribunal I cannot be satisfied that this reduced capacity arises from the permanent neurological impairment attributable to fibromyalgia. The evidence instead supports a finding that the impact of cognitive impairment and active psychotic symptoms is a significant contributor to such reduced capacity. These are yet to be diagnosed and/or effectively treated.
I find there is simply not enough evidence for me to be satisfied that Ms Almswdni’s neurological impairment attributable to fibromyalgia results in substantially reduced functional capacity in any of the relevant activities.
As a result I find Ms Almswdni does not meet the disability requirements in section 24 of the Act.

Are the early intervention requirements in section 25 of the NDIS Act met?

I have found that Ms Almswdni has a neurological impairment (pain) and a sensory impairment (mild hearing loss) which are or are likely to be permanent.
In order to meet the early intervention requirements in section 25 of the NDIS Act I also need to be satisfied that provision of early intervention supports is likely to benefit Ms Almswdni by reducing her need for future supports and either mitigating the impact of her permanent impairments on her functional capacity, preventing deterioration of such capacity, improving such capacity or strengthening the sustainability of her informal supports.
A person does not meet the early intervention requirements if supports they require are more appropriately funded or provided through another service system rather than the NDIS.
Rule 6.9 of the Access Rules provides that in deciding whether the provision of early intervention supports is likely to benefit the person it is expected the decision maker would consider:
a.The likely trajectory and impact of the person’s impairment over time; and
b.The potential benefits of early intervention on the impact of the impairment on functional capacity and in reducing the future needs for supports; and
c.Evidence from a range of sources, such as information provided by the prospective participant, family members, carers and experts.
There is no information available as to the likely trajectory of Ms Almswdni’s mild hearing loss. I find that as a matter of common sense it is unlikely early intervention supports will affect its trajectory in any way.
In relation to Ms Almswdni’s neurological impairment, it is Dr Gotis-Graham’s expert opinion that:
a.Fibromyalgia is a well-established condition, which is not at an early stage of its trajectory;
b.Interventions are unlikely to remedy the condition and therefore unlikely to improve the impact of her impairment on her function.[74]
[74] Page 293 of Exhibit 1.
On the basis of this opinion I am not satisfied that Ms Almswdni would benefit from early intervention supports. I find she does not meet the early intervention requirements of section 25 of the NDIS Act.
As I have reached the same conclusion as the decision under review, I will affirm that decision.

DECISION
The Tribunal affirms the decision under review under section 105(a) of the Administrative Review Tribunal Act 2024.

Date(s) of hearing: 2 – 3 June 2025

Date final submissions received: 3 June 2025

Solicitors for the Applicant:

Counsel for the Respondent:

Nil

Ms Campbell

Solicitors for the Respondent: Maddocks Solicitors

[2025] ARTA 1090

23 July 2025

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdiction

Standing

Limitation Periods

Injunction

Specific Performance

Date(s) of hearing:	2 – 3 June 2025
Date final submissions received:	3 June 2025
Solicitors for the Applicant: Counsel for the Respondent:	Nil Ms Campbell
Solicitors for the Respondent:	Maddocks Solicitors