BBCV and CEO, National Disability Insurance Agency (NDIS)
[2025] ARTA 2152
•14 October 2025
BBCV and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 2152 (14 October 2025)
Applicant/s: BBCV
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2023/8523
Tribunal:General Member D Heron
Place:Brisbane
Date:14 October 2025
Decision:The Tribunal sets aside the decision under review pursuant to s 105 of the Administrative Review Tribunal Act 2024 (Cth) and decides in substitution that the Applicant meets the disability requirements for access to the National Disability Insurance Scheme as set out in s 21 of the National Disability Insurance Scheme Act 2013 (Cth).
........................[SGD]........................
General Member D Heron
Catchwords
National Disability Insurance Scheme – reviewable decision of Chief Executive Officer – becoming a participant – access request – whether Applicant meets the disability requirement – whether impairments are, or are likely to be, permanent – substantially reduced functional capacity – disability requirements satisfied.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth); Schedule 16
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth)
Cases
Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] FCAFC 39; 1979 2 ALD 634
Kelly v National Disability Insurance Agency [2024] FCA 1462
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002Rooney and National Disability Insurance Agency [2021] AATA 3523
Secondary Materials
NDIA, Operational Guidelines – Applying to the NDIS, published 10 December 2024
Statement of Reasons
Introduction
The Applicant in this review is referred to by the pseudonym BBCV (the Applicant). BBCV is 51 years old and lives with her husband and her three children, two of whom are aged over 18 years old. BBCV does not work and receives the disability support pension.
The issue before the Tribunal is whether BBCV meets the eligibility requirements for access to the National Disability Insurance Scheme (the NDIS). She seeks access to the NDIS based on impairments arising from her diagnoses of fibromyalgia, complex post-traumatic stress disorder (CPTSD), major depressive disorder (MDD) and generalised anxiety disorder (GAD).
The decision under review
On 23 December 2022 BBCV applied for access to the NDIS under s 18 of the National Disability Insurance Scheme Act 2013 (the NDISAct). A delegate of the Chief Executive Officer (CEO) of the Respondent on 26 May 2023 decided BBCV did not meet the s 21 access criteria because she did not meet the s 24 disability requirements or the s 25 early intervention requirements. On 5 October 2023, BBCV requested a s 100(5) review of the Access Request decision. On 18 October 2023, the s 100(6) review decision confirmed the 26 May 2023 decision that BBCV did not meet the s 21 access criteria (Internal Review Decision).
BBCV applied to the Tribunal for independent review on 16 November 2023. The review decision was made under s 100(6) of the NDIS Act by a delegate of the Chief Executive Officer of the National Disability Insurance Agency (the Respondent) on 18 October 2023. The review delegate confirmed the original decision from 26 May 2023, that BBCV did not meet the disability requirements or the early intervention requirements, to become a participant in the NDIS.
The evidence and hearing
The hearing was conducted over two days on 19 and 20 August 2025. BBCV was represented by Mr S Fuller, of Counsel instructed by the Mental Health Legal Centre. The Respondent was represented by Dr M Taylor, of Counsel instructed by Mr C Duluk, Moray & Agnew. The following evidence was filed with the Tribunal:
(a)Joint Tender Bundle (JTB), exhibit 1;
(b)T Documents, exhibit 2;
(c)Second Joint Tender Bundle dated 15 August 2025, exhibit 3;
(d)BBCV’s statement dated 18 August 2025, exhibit 4; and
(e)Both parties’ closing written submissions.
The following witnesses were called to give oral evidence and were cross-examined during the hearing:
(a)BBCV;
(b)Ms J Aamalia, Clinical Psychologist;
(c)Dr L Reiter, Rheumatologist; and
(d)Ms N Agnoletto, Occupational Therapist.
NDIS Eligibility
The NDIS is an insurance scheme investing in the lives of people with disability. The NDIS Act and the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) (the Becoming a Participant Rules) specify the eligibility requirements.
To be eligible for the NDIS a person must be an Australian resident, aged under 65 years experiencing substantially reduced functional capacity to perform essential tasks in one or more life domains due to one or more permanent intellectual, cognitive, neurological, sensory, or physical impairments or one or more permanent impairments to which a psychosocial disability is attributable.[1]
[1] The NDIS also provides early intervention pathway access.
The Respondent has also developed Operational Guidelines. While these guidelines are not formally binding on the Tribunal, they do represent government policy and should be followed unless there are cogent reasons not to do so.[2]
[2] Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] FCAFC 39 at [644-5].
The disability requirements
The disability requirements for access to the NDIS are set out in s 24 of the Act and Part 5 of the Becoming a Participant Rules. I am applying the law as it applied before 3 October 2024, as the amendments to s 21 only apply to applications for access made on or after that date. Section 24 prior to 3 October 2024 provided as follows:
24 Disability requirements
(1) A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments or 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 and economic participation; and
(e)the person is likely to require supports 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 supports 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 supports under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
Rules 5.4 to 5.7 consider when an impairment is permanent or likely to be permanent for the disability requirement. These Rules provide the following:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4An 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.
5.5An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
5.6An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated.
5.7If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
Rule 5.8 considers when an impairment results in a substantially reduced functional capacity to undertake a specified activity. That rule provides as follows:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities
5.8An 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 or self-management … - 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 participant 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.
The criteria from s 24(1) of the Act is cumulative and must be satisfied for the disability requirement to be met.
THE EVIDENCE
I have considered all the evidence in arriving at my decision, though I may not refer to all parts of the evidence. I will summarise what I consider to be the most salient evidence below.
APPLICANT’S EVIDENCE
Of particular relevance to this decision are the following reports and documents that the Applicant seeks to rely upon:
·Statement of Lived Experience, received 15 July 2024
·Response to Targeted Questions Report, Ms A Gowland Occupational Therapist, received 15 July 2024
·Email, Dr Gene-Siew Ngian Rheumatologist, dated 14 August 2024
·Response to Targeted Questions, Dr Kanapathipilli General Practitioner, dated 23 August 2024
·Response to Targeted Questions, Ms J Aamalia Clinical Psychologist, dated 4 September 2025
·Letters of Dr C Algie Pain Specialist and Anaesthetist, various 2021–2025.
RESPONDENT’S EVIDENCE
Of particular relevance to this decision are the following reports and documents that the Respondent seeks to rely:
·Summons Documents, Dr Kanapathipilli General Practitioner, various dates
·Independent Medical Examination Report of Dr L Reiter Rheumatologist, dated 20 December 2024
·Independent Functional Capacity Assessment, Ms A Agnoletto Occupational Therapist, dated 31 January 2025.
There is no dispute between the parties that the age and resident requirements as set out in s 22 and 23 of the NDIS Act are satisfied. BBCV does not seek to rely on the early intervention requirements. On the evidence before me, I am satisfied that the age and residency requirements are met. Given BBCV is not pressing the early intervention requirements, I have not considered s 25 in these reasons for my decision.
BBCV’s evidence
BBCV lives with her husband and her three children. Her typical schedule heavily involves the use of her recliner chair, situated in the lounge room of the family home. BBCV sleeps the night in her recliner chair, and typically wakes in the morning around 6:30am. At this time, her husband will assist her to dress. Her older son will drive her youngest child to school and BBCV will accompany them. BBCV no longer drives a car due to her impairments.[3]
JTB, 7, 134.
After returning home, she will have breakfast and return to her recliner. BBCV requires the assistance of another person to physically get out of her recliner chair. While in her recliner she usually watches TV on her phone. Every second day, she will do stretching exercises for about two minutes. On the weekday afternoons, her older son will again drive her to pick up her youngest child from school. BBCV then returns to her recliner chair, where her husband serves her dinner. Following dinner BBCV’s husband will assist with her shower. BBCV will then return to her recliner for the evening.[4]
[4] Transcript, Applicant’s opening submissions 11:10–11:44.
BBCV reports that her husband does all the cooking, and the cleaning, mopping, the vacuuming and washing of clothes is shared between her sons and her husband. Her eldest son does the grocery shopping.
Her activities outside of the home consist of the weekday school runs, visiting the local pharmacy, medical appointments and an occasional visit with her mother two to three times per year.[5] It is an agreed fact between the parties that BBCV does not engage in any hobbies or have a social circle.
[5] JTB, 4, 81.
In her Statement of Lived Experience received 15 July 2024 BBCV states as follows:
A good day looks like: me being unable to move much, which reduces pain and stiffness. A bad day looks like: I am in severe pain, such as migraines and nerval pain all over the body, which makes me unable to move and do any tasks.
Roughly three good days a month, leaving the remainder of days to be bad…
My husband or son drives me to appointments and wherever else I need to get out of my chair with the aid of my family. This is due to my chronic stiffness and pain. I require help with self-care such as bathing and grooming. I have to get my husband to help me going to the bathroom, showering and self-care, as I cannot do it myself due to chronic stiffness, fatigue and pain.[6]
[6] JTB, 8, 156.
During the hearing BBCV was asked what supports she is seeking under the NDIS, as follows:
Dr Taylor: Then can I just ask you some general questions, if you did have access to the NDIS, what supports do you think that you would need?
BBCV: Psychologist. Psychiatrist.
BBCV: Equipment, I'm not sure what else. Can't really think.[7]
[7] Transcript, 1:28:07–1:28:19.
BBCV’s Clinical Psychologist – Ms Aamalia
Ms Aamalia is BBCV’s Clinical Psychologist, she provided her Response to Targeted Questions dated 4 September 2025 and gave oral evidence on the first day of the hearing. Her evidence can be summarised as follows:
· Has been BBCV’s Clinical Psychologist since November 2021, seeing her weekly to start, then reducing to fortnightly visits between January 2024 and June 2024. Since July 2024 BBCV has attended appointments every 3 weeks to monthly, due to financial constraints.
· BBCV has diagnoses of MDD, GAD and CPTSD. Ms Aamalia predominately treats BBCV for her CPTSD.
· BBCV experiences severe psychosocial impairments primarily due to her CPTSD diagnosis. Her CPTSD manifests in dissociation and difficulty regulating her emotional states.
· BBCV’s emotional states will fluctuate between hyperarousal such as panic, and hypoarousal where she will experience debilitating numbing out of all her emotions.
· BBCV will experience chronic and prolonged periods of dissociation, losing contact with reality for hours at a time.
· As a result of CPTSD, BBCV experiences a persistent sense of worthlessness, strong experiences of guilt and shame, with no clear sense of self or personal identity.
· BBCV is unable to initiate social interactions, generally avoiding social contact outside her immediate family or treating practitioners.
· BBCV’s recurring symptoms from CPTSD include intrusive thoughts, severe and persistent flashbacks and nightmares. These symptoms occur on a daily basis.
· Evidence-based treatment for CPTSD is complex. Current literature states psychological therapies are considered the first-line intervention for CPTSD.
· Due to her MDD diagnosis BBCV experiences significant depressed mood, severe difficulties with her concentration and memory. This includes her ability to recall and retrieve information, making communication difficult.
· With regard to her GAD diagnosis BBCV experiences hyperventilation, with an increased heart rate and pervasive anxiety. These experiences are fatiguing and negatively impact on her concentration and attention. She also experiences severe difficulties with her sleep.
· Current national guidelines suggest that diagnoses of GDD and MDD are best treated through pharmacological intervention alongside psychological therapy.
· It is difficult to separate out which diagnosis or condition is associated with which part of her psychosocial impairment. They are all strongly linked, having a complex interplay and an exacerbating effect upon each other.
· Due to BBCV’s daily dissociation, emotional dysregulation and memory issues her capacity for focussing on and retaining verbal information is limited.
· BBCV has an extremely limited ability to engage in decision-making, planning, and problem-solving tasks due to the combination of her lack of self-confidence, high levels of self-invalidation, dissociation, and worthlessness.
· BBCV will only engage with in-person interactions where necessary, such as medical appointments or school meetings for her child. She finds it very difficult to express her needs. She can become non-verbal in situations where she must share her thoughts or feelings. BBCV tends to interpret the non-verbal communication of others as threatening.
· Since 2021 BBCV has been receiving phase-based intervention using Dialectical Behaviour Therapy skills training, Eye Movement Desensitisation and Reprocessing modalities. These are the gold standard therapeutic interventions for CPTSD.
· On the basis of BBCV’s clinical presentation, Ms Aamalia holds no expectation that a change in therapy modality would provide remedy to her psychosocial impairments.
· Expectation is that BBCV will consolidate previously learned skills and work to prevent any further functional decline.
· Does not anticipate significant remission of symptoms or remedy to BBCV’s psychosocial impairments.
Occupational Therapist – Ms Agnoletto
Ms Agnoletto is an Occupational Therapist; she undertook an independent functional capacity assessment with BBCV on behalf of the Respondent. Ms Agnoletto also supplied her report dated 31 January 2025 and provided oral evidence at the hearing. Her evidence can be summarised as follows:
·During the in-person assessment BBCV “presented with a flat affect, limited expressive range in tone, and minimal use of facial expressions or gestures. These observations may reflect her mood and discomfort at the time rather than a consistent presentation”.[8]
[8] JTB, 6, 144.
·BBCV’s husband sat in during the entire assessment and provided additional information. He was asked multiple times to avoid interrupting during the standardised assessments so that the test validity could be maintained.[9]
[9] JTB, 6, 116.
·BBCV found it difficult to explain whether she experienced any ‘good days’ versus ‘bad days’. She described her experience as largely consistent with a ‘good day’ approximately once every 2 weeks, feeling less stiffness and pain. ‘Bad days’ were described as 4 times a week with severe pain, where BBCV is largely immobile and emotionally overwhelmed, crying and experiencing feelings of helplessness.
·BBCV reports she does not leave the home independently and explained that no external visitors come to the home.
·BBCV uses a walking stick and also owns a 4 wheeled walker. BBCV reported she finds the walker difficult to control due to her limited arm strength.
·Uses a low plastic seat to sit for all her showering tasks. BBCV reports she cannot shower herself independently. BBCV’s husband showers her, cleaning her back, lower limbs and assists in her transfers.
·BBCV relies on her husband for her dressing tasks, both upper and lower body, particularly the overhead movements and the associated bending activities.
·BBCV reported managing toileting herself independently, only occasionally needing assistance with her transfers on and off.
·Self-reported restricted walking tolerances of approximately 6 minutes outside the home, using her walking stick. Following 6 minutes of walking, BBCV reports she requires a 30-minute seated rest to recover.
·Signs of physical deconditioning observed during the functional assessment included visible physical fatigue and breathlessness.
·Observed BBCV could only remain in an upright dynamic standing position for a maximum of 3 minutes, before she needed to return to her recliner due to pain and fatigue.
·BBCV could only lift a maximum weight of 2 kilograms. Difficulty in bending actions, repetitive motions and prolonged standing tasks. BBCV reports she cannot undertake any cleaning, laundry tasks, grocery shopping or cooking activities independently due to these difficulties.
·BBCV avoids physically demanding tasks due to pain, fatigue and fear of exacerbating her symptoms. This is also influenced by her emotional state, which in turn has led to her physical deconditioning.
·BBCV’s husband manages all the household finances and BBCV requires assistance with reminders, assistance with any decision-making, and frequent emotional reassurance.
·BBCV expressed some interest in having assistance outside of her immediate family, noting she was uncertain on how she would respond. Her husband stated he was unsure about BBCV having support worker assistance.
Rheumatologist – Dr Reiter’s evidence
Dr Reiter is a Rheumatologist and she undertook an assessment with BBCV on behalf of the Respondent and authored a report dated 20 December 2024. Dr Reiter also provided oral evidence at the hearing. Her evidence can be summarised as follows:
·While fibromyalgia is a permanent condition, impairments experienced from the diagnosis may not be permanent if all available treatments have not been trialled.
·BBCV has not tried all available treatments, so she has not been completely and fully treated. Recommends BBCV trial specific medications so she may be more functional at home and able to get out of her recliner independently.
·Recommends trials of moderate analgesics – tramadol slow release, gentle exercise, hydrotherapy, naltrexone 4mg daily, memantine 20mg daily, Catapres (clonidine) 150 mcg one nocte 2 weeks then one BD, Cyclobenzaprine 2.8mg daily for 2 weeks, then 5.6mg daily for 12 weeks.
·BBCV should undertake these treatments one at a time, before any opinion on whether or not the known treatments are likely to remedy her physical impairment or significantly improve her physical impairment can be provided.
·BBCV could be managed with a chronic disease management plan available from her General Practitioner. Access to these allied health services may improve her functional capacity and strengthen her informal support network.
BBCV’s General Practitioner – Dr Kanapathipilli
Dr Kanapathipilli is BBCV’s treating General Practitioner and she provided her Response to Targeted Questions dated 23 August 2024, summarised as follows:
·Has been BBCV’s treating general practitioner for over 15 years.
·BBCV experienced a physical, emotional and verbally abusive childhood. Fractured mandible from abuse in adolescence, surgery was required. Attempted suicide.
·BBCV experiences low mood, low energy, poor appetite, emotional numbness, flashbacks, nightmares, panic attacks with an inability to find any pleasure or to problem solve. Reports no friends and is socially isolated.
·BBCV’s diagnoses are fibromyalgia, CPTSD, major depression and severe anxiety.
·BBCV’s muscle joint pain, stiffness, back pain. BBCV also experiences pins and needles and numbness from her fibromyalgia, aggravated by her mental stress.
·At time of writing BBCV is seeing a Psychiatrist, Clinical Psychologist and Pain Specialist.
·BBCV is taking the antidepressant desvenlafaxine 150mg daily and quetiapine 25mg at night.
·All BBCV’s conditions have been diagnosed and fully treated. There are no more treatments for her conditions and diagnoses. All BBCV’s conditions are permanent, and ‘she is disabled for life’.[10]
[10] JTB, 12, 180.
Pain Specialist – Dr Algie
Dr Algie is BBCV’s treating Pain Specialist, and her letters dated 1 September 2021, 22 October 2021, 18 March 2025 and 28 March 2025 are before the Tribunal. These letters are summarised as follows:
·Has been treating BBCV since February 2021 for her fibromyalgia.
·Over this time, BBCV has been prescribed clonidine, Topamax and Allegron. BBCV tried medicinal cannabis, self-ceased due to cost. Allegron was discontinued as it made her sleep worse.
·Underwent a pain management program in 2021 at Dorset Rehabilitation Centre, BBCV self-reports no benefit or improvement.
·Prescribed an 8-week opioid Norspan patch trial as well as reduced clonidine to 25mcg in October 2021.
·In March 2025 after receiving Dr Reiter’s recommendations about trialling naltrexone and tramadol, Dr Algie agreed to prescribe a trial of both medications.
·Dr Algie states that naltrexone has a ‘poor evidence base’ and is considered an off label treatment. Prescribed trial at 1mg, with gradual increase as tolerated. Tramadol also prescribed at 50mg tablets, not for use in conjunction with the naltrexone.
·Offered ongoing review to BBCV and provided a supporting letter for NDIS access on 28 March 2025. Letter states that BBCV has tried multiple pain treatments without success or functional improvement.
·Considers BBCV’s fibromyalgia to be substantially stabilised with future treatments as supportive only.
BBCV’s Occupational Therapist – Ms Gowland
Ms Gowland is BBCV’s Occupational Therapist and she works with clients in pain management and with mental health concerns using a trauma-informed approach. She provided a report received 15 July 2024. Her report is summarised as follows:
·Undertook 2 in-person consultations in June and July 2024 with BBCV, who was accompanied by her husband for both appointments.
·Liaised by phone with BBCV’s Clinical Psychologist and read two supporting letters of the Clinical Psychologist dated 8 August 2023 and 1 February 2022.
·During the consultations observed significant pain and weakness in BBCV’s lower limbs and throughout her upper body.
·Pronounced upper body tremors observed when BBCV used the arms of chair to assist in her transfer from a sitting to standing position. Requiring physical assistance from her husband for the completion of this task.
·Observed weakness in BBCV’s lower limbs when standing. Observed BBCV required a period of stabilisation before she could begin to walk. Lower limb unsteadiness observed when ambulating.
·Significantly reduced range of motion in neck. Significant issues with raising arms above her head, reports needing full assistance for tasks such as washing of hair, some assistance when applying make-up and with her hair grooming.
·BBCV reports that her husband assists in dressing tasks particularly her lower limbs due to restricted bending movements and lack of fine motor control for gripping and manipulating her clothing.
·BBCV reports she utilises the side of the bath to assist and support her transfers on and off the toilet. Reports some difficulties in wiping due to her bilateral arm tremors and reduced range of movement in the upper body.
·BBCV was observed during the assessments to continually reposition when sitting and stated she has experienced numbness, pins and needles and fatigue.
Section 24(1)(a): Does BBCV have a disability attributable to an impairment?
To satisfy s 24(1)(a) BBCV must have a disability attributable to one or more intellectual, cognitive, neurological or physical impairments or one or more impairments to which a psychosocial disability is attributable.
The term ‘impairment’ is not defined in the NDIS Act. The Respondent’s Operational Guidelines defines impairment to mean “a loss of or damage to your body’s function” as consistent with National Disability Insurance Agency v Davis.[11]
[11] [2022] FCA 1002, [118] referring to [113].
The evidence before me is that BBCV lives with the following diagnoses that can be categorised under two separate impairments:
i.Psychosocial impairments: complex post-traumatic stress disorder (CPTSD), major depressive disorder (MDD) and generalised anxiety disorder (GAD);
ii.Physical impairments: fibromyalgia.
The Respondent agrees that BBCV lives with these impairments from these diagnoses. Having regard to BBCV’s lived experience evidence and the evidence provided by her Clinical Psychologist and her Pain Specialist, I am also satisfied that BBCV lives with these psychosocial and physical impairments.
I am satisfied on the evidence that BBCV experiences physical and psychosocial impairments from her diagnoses of fibromyalgia, CPTSD, MDD and GAD, satisfying
s 24(1)(a) of the NDIS Act.Section 24(1)(b): Are these psychosocial and physical impairments permanent?
With regard to s 24(1)(b) of the Act, and rule 5.4 of the Becoming a Participant Rules, the questions to determine if BBCV’s impairments are, or likely to be permanent, are as follows:
(a)Are there any known, available and appropriate evidence-based medical or other treatments that would be likely to remedy BBCV’s impairments? And
(b)Do these impairments require medical treatment or review before a determination can be made about whether they are permanent or likely to be permanent?
Rule 5.4 of the Access Rules provides that an impairment will only be considered permanent 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 considered the meaning of the word ‘remedy’ in rule 5.4 stating as follows:
In this context, remedy should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word remedy should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment”, as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured.[12]
[12] Davis at [136].
In Kelly v National Disability Insurance Agency [2024] FCA 1462 the Court dealt with a challenge to the validity of rule 5.4 of the Access Rules; with McEvoy J finding that the Rule was valid.[13] The Tribunal’s consideration of the word “likely” was that:
The Macquarie Dictionary defines likely as: probably or apparently going or destined (to do, be, etc.)’. Likewise, the Oxford English Dictionary defines the word as ‘probable’ in the sense of ‘having a high chance of occurring’. Accordingly, where this word plays a role in helping to determine permanence, I consider it to be indicative of probability rather than possibility, and certainly not mere speculation.
[13] Kelly at [63].
In Davis the Court held that the correct meaning of the word “permanent” used in s 24(1)(b) is “enduring”. This is reflective of the purpose and context of the legislative scheme being intended to deliver lifelong support to persons with disability.[14] The Court rejected the submission that permanent should be understood as meaning “irreversible”, stating:
84.The concept of “irreversible” is unhelpful, and a distraction from the context and purpose of the legislation. It prompts the question – ‘reversible by what?’ That is, how far does an (sic) NDIS applicant need to go to attempt to ‘reverse’ their impairment? And what does ‘reversible’ mean? Is it a question of degree? Fifty percent reversible? Thirty percent reversible? Does irreversible mean ‘cannot be improved’? Of course, many impairments covered by the NDIS – such as psychiatric impairments – can be ‘improved’ (in terms of the way an individual experiences the impairment) by therapy and medication. Are they ‘reversed’ if the medication is very successful? Obviously, the answer is they are not. The impairment remains, but the symptoms or manifestations may be controlled or somewhat ameliorated.
[14] Davis at [85].
The Court in Davis also considered the meaning of the phrase “known, available and appropriate” and held at [137] to [139] that:
137.As a general observation, in my opinion each of the adjectives must be construed as referring to circumstances in Australia. In r 5.4, the word “known” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment. The word “appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo. The capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, or their personal circumstances in terms of where they live and who they live with, and who cares for them.
138.The word “available” should be understood as meaning available to a particular individual. If it were to be construed as meaning “exists in Australia”, then it would have little different work to do from the word “known”. The Macquarie Dictionary defines “available” as meaning:
adjective 1. suitable or ready for use; at hand; of use or service …
139.Assuming as I do the validity of r 5.4, and on the premise any given treatment is “known” and “appropriate” as I have explained those terms, in my opinion the adjective “available” should be understood as directed at what treatments an individual can, in reality, access. Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.
The NDIS Operation Guidelines assist in framing that the focus of access to the scheme is on a person’s impairment, rather than on their diagnoses. The Access Guidelines state as follows:
When we think about your disability, we look at whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment. An impairment is a loss of or damage to your body’s function.
We’ll look at:
• your body’s functions
• your body structure
• how you think and learn.[15]
[15] NDIS Operational Guidelines – Applying to the NDIS, dated 10 December 2024.
Psychosocial impairments
The Applicant relies on the following evidence in relation to the permanence of BBCV’s psychosocial impairments:
a)BBCV’s psychosocial impairments are chronic and longstanding, referencing BBCV has endured an abusive childhood and adolescence.[16]
b)BBCV’s General Practitioner Dr Kanapathipillai in her letter dated 23 August 2025 states that there are no more medications available and BBCV is “disabled for life”.[17]
c)BBCV has engaged with Psychiatrist, Dr Krishnaswamy for her CPTSD, MDD and GAD diagnoses.
d)BBCV has engaged with best practice, evidence-based treatment through her ongoing and regular Clinical Psychological therapy since 2021.
e)BBCV’s Clinical Psychologist Ms Aamalia, in her report dated 4 September 2024 states that “significant clinical recovery is unlikely due to the severity and chronicity” of BBCV’s impairments[18] and “there is no one ‘stand-alone’, evidence-based treatment to remedy impairments associated with CPTSD”.[19]
f)BBCV has undertaken several different antidepressant and other pharmacological treatments over the years, that have either not been clinically tolerated or have not provided significant improvement in her function.
[16] JTB, 12, 179.
[17] JTB, 12, 180.
[18] JTB, T14.
[19] JTB, 13, 186.
In their closing written submissions the Applicant states:
it is not a matter of whether she has explored all treatments known for her impairments, rather, it is only those treatments that are also available, appropriate, and likely to remedy her impairments.
The Respondent’s case resembled a fishing expedition searching for any treatment which it could point to regardless of that treatment’s appropriateness for the Applicant, evidence base, cost, known efficacy, and availability.[20]
[20] Applicant’s Closing submissions 4 September 2025.
The Respondent states that cognitive behavioural therapy (CBT) is an appropriate evidence-based treatment, in addition to undertaking pharmacological treatment. Ms Aamalia provided evidence that she has provided CBT to BBCV, amongst her other psychological treatment modalities. Ms Aamalia’s opinion is that no shifts in modality would result in remedy to BBCV’s psychosocial impairments.[21]
[21] JTB, 13, 190.
The parties fundamentally disagree about BBCV’s pharmacological treatment for her psychosocial impairments, specifically her history of antidepressant treatment. Regarding pharmacological treatment, the Respondent summonsed material from BBCV’s General Practitioner including prescriptions issued, recalls, consultation notes and correspondence to and from her referred practitioners.
The Respondent relies on the summons records and current medicines list collated by both the Independent Medical Examination and Independent Functional Assessment as evidence that BBCV’s antidepressant treatments to date have not been trialled at therapeutic dosages, or for adequate trial periods.
The Respondent states that the summons material from the GP shows that BBCV was prescribed a new antidepressant Lexapro on 9 December 2024 and no information is known about whether it has been effective. During the hearing BBCV gave evidence that she had been taking the antidepressant called desvenlafaxine, but then stopped as it was making her feel sick.[22]
[22] Transcript, 1:25:53-1:26:00.
The Respondent also states BBCV is no longer under the care of a Psychiatrist and ceased her psychiatric care in October 2023 and declined psychiatric case management that was recommended by North West Adult Mental Health Service (NWAMHS) in May 2024.
The key question is whether the evidence supports further treatments, such as additional therapy, adjusted medications or further pharmacological trial periods as being likely to remedy BBCV’s impairments. I take ‘remedy’ to mean that there are known, available and appropriate treatments that would significantly improve BBCV’s functioning, approaching a removal or cure.
GDD and MDD
The Respondent relies on the totality of the GP summons records demonstrating sporadic antidepressant treatment and further medications being prescribed, to contend that BBCV’s impairments arising from GDD and MDD are not permanent for s 24(1)(b) purposes.
The evidence provided by BBCV’s treating practitioners is that her psychosocial impairments have been diagnosed, treated, stabilised and that further treatment is unlikely to result in significant functional improvement. The medical evidence in the summons material before me outlines the various types of antidepressants that have been prescribed to BBCV to manage her symptoms.
The evidence provided by Ms Aamalia is that BBCV reported to her in the wake of a health crisis, that she had ceased all her psychotropic medications in early 2024. Ms Aamalia’s opinion is that BBCV should be under the care of a Psychiatrist.
The summons material outlines recommendations for BBCV to increase her dosage of desvenlafaxine to 200mg, and also outlines that she was prescribed a different antidepressant in May 2025 by her treating General Practitioner.
I am not persuaded that the recommendations for being under the care of a Psychiatrist, trialling higher dosages or trialling different types of antidepressants amount to a removal or cure of these psychosocial impairments.
I am persuaded by the evidence provided by BBCV’s treating practitioners that her psychosocial impairments have been diagnosed, treated, stabilised and that further treatment is unlikely to result in significant functional improvement. I accept that there is evidence before me that BBCV’s GAD and MDD have an enduring quality.
In consideration of rules 5.5 and 5.6 which state that a condition may be permanent even if it continues to be treated, regularly reviewed and where there are prospects that the functional capacity of a person may improve, my view on the evidence is any changes to medications and dosages do not satisfy me that her psychosocial impairments flowing from her GAD and MDD will be removed or cured.
Accordingly, on the evidence before me I am satisfied that the psychosocial impairments that flow from BBCV’s diagnoses of MDD and GDD are permanent, or likely to be permanent within the meaning of s 24(1)(b) of the Act.
CPTSD
BBCV’s Clinical Psychologist Ms Aamalia has been treating her since 2021 and was clear in her evidence that BBCV is unlikely to clinically recover ‘due to the severity and chronicity of the impairments that occur in the context of psychosocial disabilities.[23]’
[23] Exhibit 2, T14.
On the evidence before me I am satisfied that BBCV has engaged with the known, available and appropriate therapeutic treatments for her psychosocial impairments related to her CPTSD diagnosis, that are likely to remedy her impairments.
In these circumstances, I am satisfied that BBCV’s psychosocial impairments flowing from her CPTSD are permanent. On the evidence before me I am satisfied that it is unlikely that any further treatments known, available and appropriate will remedy BBCV’s psychosocial impairments from her CPTSD diagnosis.
On the evidence of Clinical Psychologist Ms Aamalia, her opinion is there are no additional or alternative treatments not yet attempted that have any prospect of removing or substantially improving BBCV’s psychosocial impairments attributable to her CPTSD.
I have reached a positive state of satisfaction regarding the totality on the evidence before me on the therapeutic modality treatments BBCV has undertaken to date for her CPTSD. On the evidence I am satisfied that BBCV has a psychosocial impairment from her CPTSD diagnosis that is permanent: s 24(1)(b) of the NDIS Act.
I find that the Access Rules are met in relation to BBCV’s psychosocial impairments and s 24(1)(b) of the Act is satisfied.
Physical impairment
BBCV was diagnosed with fibromyalgia in 2012. Currently she is managed by her General Practitioner and by her Pain Specialist Dr Algie, who commenced treating BBCV in February 2021. Before this time BBCV was treated by Rheumatologist, Dr Ngian from October 2019 to November 2021.
The Applicant agrees BBCV has not trialled all the treatments listed in the Independent Medical Examination Report by Dr Reiter, however, contends that they are not likely to ‘remedy’ the impairments attributable to her physical impairments from her fibromyalgia. The Applicant relies on the following evidence:
a)BBCV’s Rheumatologist Dr Ngian stated that her diagnosis of fibromyalgia had no cure and that it was fully treated, including having trialled numerous medications for her neuropathic pain.[24]
b)Dr Algie’s opinion that her fibromyalgia is substantially stabilised and that any future treatments are supportive only.[25]
c)Dr Algie’s letter from 21 August 2023 states that she has participated in trials of multiple lines of therapy including pharmacological and non-pharmacological. I consider [Applicant’s] pain condition to be stabilised, permanent, further treatments to be supportive rather than curative in nature.[26]
d)Dr Kanapathipillai’s letter dated 7 August 2023 that BBCV’s fibromyalgia is permanent stating there is no cure, fully treated and fully stabilised.[27]
[24] Exhibit 2, T6, Letter, Dr Ngian dated 23 November 2021.
[25] JTB, 16, 227.
[26] Exhibit 2, T15, 72.
[27] Exhibit 2, T12, 66.
The Respondent’s position is that BBCV’s physical impairment is not permanent as she has not tried the following, ‘known’ treatments for fibromyalgia from Dr Reiter’s report:
a. Moderate Analgesics – Tramadol slow release
b. Gentle exercise
c. Hydrotherapy
d. Naltrexone 4mg daily from a compounding chemist
e. Memantine 20mg daily
f. Catapres (clonidine) 150mcg one nocte 2 weeks, then one BD
g. Cyclobenzaprine – 2.8mg daily for 2 weeks, then 5.6 mg daily for 12 weeks
Dr Reiter’s assessment was based on a review of documents provided by the Respondent, an oral history provided by BBCV. In her report dated 20 December 2024 Dr Reiter states that BBCV lives with:
left and right jaw pain, left and right shoulder girdle pain, left and right upper arm pain, left and right lower arm pain, bilateral hip/buttock pain, left and right upper leg pain, left and right lower leg pain, neck pain, chest pain, abdominal pain, as well as upper and lower back pain. In addition, she suffers with severe and pervasive levels of fatigue, waking unrefreshed, and poor cognitive symptoms (poor memory and poor concentration - "brain fog"). Also, other symptoms which she suffers from include headaches, lower abdominal cramps, and depression.[28]
[28] JTB, 4, 79-80.
Dr Reiter’s opinion is that BBCV would benefit from undertaking the pharmacological treatments that she recommends in her report. Her opinion is that these treatments may provide BBCV more functionality in being able to undertake activities of daily living, like getting out of her recliner independently.[29]
[29] JTB, 4, 85.
At the hearing Dr Reiter explained that BBCV would need to undertake the treatments recommended in her report, before she could offer any opinion about whether or not treatments are likely to remedy her impairments.
At the hearing the Applicant explained hydrotherapy could not be engaged in based on BBCV’s historical experiences. Dr Reiter on hearing this agreed, explaining she was not aware of the historical experiences and that land-based therapies should be substituted in place of hydrotherapy.
Dr Reiter also supplied the Tribunal with her report dated 20 December 2024 from her assessment with BBCV. In her report she was asked to answer the following question:
13. To the extent not already addressed, do you consider the Applicant would
benefit from further intervention, rehabilitative or otherwise? If so:
(a)what are your recommendations
Yes. I do consider that she would benefit from those treatments that I have outlined above in my answer to Q.12, such that she may be more functional at home, including not requiring assistance to get out of her recliner.[30]
[30] JTB, 5, 86.
The Applicant in their closing written submissions noted BBCV has trialled tramadol and this medication was discontinued due to stomach pain. Dr Reiter was not aware of this trial and stated she would not further recommend a trial of tramadol given the side effects BBCV had experienced.[31]
[31] Transcript 46.56.
With regard to the recommendation of naltrexone, the Applicant contends it is not an ‘evidence-based treatment’ within the meaning of rule 5.4 of the NDIS Rules given that Dr Algie has stated it has a ‘poor evidence base’. The Respondent contends that by the actions of Dr Algie agreeing to prescribe the medication, it can be inferred that Dr Algie finds it an appropriate medicine for BBCV.
The two other medications recommended by Dr Reiter were clonidine and memantine. The Applicant states clonidine has been trialled by BBCV. Dr Reiter’s position is that a re-trial is still worth exploring. The Applicant states memantine cannot be accessed on the PBS for fibromyalgia, given it is an off-label medication used for Alzheimer’s. The Respondent states it is available on a private script. The final medication recommended is Cyclobenzaprine, and I accept Dr Reiter’s evidence that she has not prescribed this to a patient and the Applicant’s contention that this medication is not available in Australia.
BBCV’s Pain Specialist Dr Algie has provided written evidence that her fibromyalgia is permanent. She states there are no further treatments that are likely to remedy BBCV’s fibromyalgia related impairments and that “therapies will be supportive and for symptomatic management. Functional impairment is likely to remain”.[32]
[32] Exhibit 2, T3.
I am not satisfied that Dr Reiter’s recommendations regarding trialling of medicines and additional therapy, rose to a level where I can be satisfied that these are likely to remedy BBCV’s impairments. Dr Reiter stated at the hearing that ‘I think someone who is suffering deserves every opportunity to potentially have an improvement’.[33] Dr Reiter’s evidence was that these medications would need to be trialled before she could offer an opinion on whether they would be likely to remedy BBCV’s physical impairments.
[33] Transcript 48.13.
Overall, I prefer the written evidence opinion of Dr Algie as she has treated BBCV over several years and has had the opportunity to observe BBCV’s function over this time. Dr Algie’s opinion is supported by her clinical records and letters outlining treatment history, and I prefer this over Dr Reiter’s evidence given she assessed BBCV on one occasion over video conference.
I have been satisfied on the evidence before me that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy BBCV’s physical impairments flowing from her fibromyalgia diagnosis. I am satisfied that BBCV’s physical impairments are, or are likely to be, permanent and therefore the requirement in s 24(1)(b) is satisfied.
Substantially Reduced Functional Capacity – paragraph 24(1)(c) of the NDIS Act
I will consider whether BBCV’s circumstances are captured by the deeming rule in this provision, as rule 5.8 states that:
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.
Considering BBCV’s circumstances under the deeming rule is only part of the statutory task. If this provision is not met, I will consider whether BBCV’s functional capacity is substantially reduced in any of the six domains.[34]
[34] Mulligan and NDIA [2015] FCA 544 at 77.
The term ‘substantially’ in the context of ‘reduced functional capacity’ carries a significant threshold provided for by the Act that will need to be met.[35] Paragraph 24(1)(c) describes more than ‘to simply show that functioning in the relevant area is affected’.[36]
[35] Rooney and National Disability Insurance Agency [2021] AATA 3523 at 22.
[36] Davis at 65.
Communication
Dr Kanapathipilli did not indicate that BBCV has substantially reduced functional capacity in the communication domain on the NDIS Access Request - Supporting Evidence Form.[37]
[37] JTB, 17, 411.
Ms Agnoletto the Occupational Therapist engaged by the Respondent to undertake the independent functional capacity assessment with BBCV, undertook her assessment on 16 January 2025 at BBCV’s home. The assessment lasted three hours and 45 minutes. The assessment incorporated a structured interview, observation of her functional movements, and demonstration of selected daily living activities.
83.Ms Agnoletto described BBCV’s capacity to communicate as follows:
[BBCV’s] reduction in communication capacity appears to be influenced by CPTSD and severe anxiety, which likely contribute to difficulties in verbal expression, limited use of gestures, and a restricted range of tone and facial expressions. These conditions may affect her ability to engage dynamically in conversations, articulate her thoughts clearly, and respond fluently in social or high pressure situations. Her MoCA score of 25/30, which indicates mild cognitive impairment in attention and language, may also contribute to challenges with processing information, formulating responses, and sustaining conversations. While she can understand and respond to questions, she tends to provide brief answers with minimal elaboration, which may be influenced by cognitive fatigue, anxiety, or reduced confidence in communication.[38]
[38] JTB, 7, 144-145.
It is not contended that BBCV is unable to communicate with others without assistive technology or their physical prompting or guidance and therefore I am satisfied that the circumstances prescribed by rule 5.8 have no application in the communication domain.
While BBCV has a reduction in her ability to communicate and an aversion to engage with people, I am not satisfied that the evidence before me rises to the level of a substantially reduced functional capacity to communicate. The evidence before me is that she can read, write, answer questions and express her basic needs and therefore I cannot conclude her capacity to communicate is substantially reduced.
I am satisfied on the evidence that BBCV is able to express her basic needs and wants, she is able to understand people and be understood. Accordingly, I find BBCV does not have a substantially reduced functional capacity to undertake communication activities under
s 24(1)(c)(i) of the NDIS Act.
Socialising
The parties agree that BBCV is socially isolated. While it is accepted that BBCV does not have a social circle, the Tribunal has described the socialisation domain as being ‘about the personal skills needed for social interaction, and only marginally about opportunities to exercise those skills.’[39]
[39] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at 87.
During the independent functional capacity assessment, it was reported by Ms Agnoletto that:
[BBCV] requires a high level of support to engage in social interactions due to anxiety, CPTSD, and avoidance behaviours. She does not engage in social interactions beyond her immediate family, except for visiting her mother two to three times per year.
Support is needed in the following areas:
o Confidence building to develop trust and reduce anxiety in social situations.
o Assistance with leaving the home for social interactions, particularly appointments, to overcome psychological barriers.
o Emotional and self-regulation support to manage distress and anxiety during interactions.
o Accompaniment for social engagement to assist with communication and provide reassurance in social settings.
o Therapeutic support from allied health professionals to build confidence, improve communication, and develop social skills.
o Tools and strategies to manage sensory overload, social anxiety, and fatigue, enhancing her ability to engage socially.
Currently, support is primarily provided by her husband and eldest son, who assist with interactions and ensure she can attend necessary engagements. However, ongoing reliance on informal support places strain on family members. Professional assistance is recommended to provide structured support and promote sustainable engagement in social activities.[40]
[40] JTB, 7, 148.
The Applicant relies on the opinion of Ms Agnoletto that BBCV has substantially reduced functional capacity for social interaction, experiencing significant distress with social interactions in face-to-face, telephone, social media, group environments and community settings.
The Applicant states BBCV is unable to form new relationships or maintain relationships outside of her immediate family. Further the Applicant states that BBCV requires support to interpret conversations and respond appropriately due to difficulties understanding, following and reading social cues and non-verbal communication.[41]
[41] JTB, 7, 146.
The Respondent states that observations regarding BBCV’s capacity for social interaction largely centre on the frequency and opportunity for her to interact socially, opposed to BBCV’s actual interpersonal skills. The Respondent notes that while Ms Aamalia reports when BBCV is taking her youngest child to school she “will avoid speaking to or making eye contact with other parents or teachers” and “becomes highly anxious if someone makes eye contact with her” which “is likely due” to CPTSD and GAD, this information is self-reported to Ms Aamalia by BBCV.[42]
[42] JTB, 1, 9.
The Respondent states BBCV has the capacity for social engagement in the form of “immediate family interactions and essential activities” with informal support provided by her husband and sons. The Respondent also notes BBCV is able to telephone her mother.
I am persuaded by the evidence given by Ms Aamalia who has been BBCV’s long-standing treating Clinical Psychologist since November 2021, on her capacity for social interaction being reduced. I am further persuaded by the opinion of Ms Agnoletto the independent Occupational Therapist, who reported that BBCV requires support to engage in social situations.
While I accept that Ms Aamalia can only provide her expert opinion in relation to BBCV’s psychosocial impairment, Ms Agnoletto reported under the question 12.5.6 Social Interaction, Is the Applicant Able to:
Leave their home?
[BBCV] can leave her home but actively avoids doing so due to anxiety and CPTSD, which create psychological barriers to engaging in activities outside. Physical pain and poor endurance further limit her ability to leave the house, contributing to fatigue and discomfort.
The Respondent in their closing submissions noted that:
the Applicant appeared to have little difficulty with answering questions in cross-examination and the Respondent contends that this is a significant matter given that cross-examination (and a Tribunal hearing generally) are stressful social interactions.[43]
[43] Respondent’s Final closing submission, 3 September 2025, page 5.
In consideration of the Respondent’s submission, my observations were that for the short period BBCV gave evidence, her answers were consistently brief, lacked elaboration and she did not engage beyond the minimum required. I exercise caution to draw any material conclusions about BBCV’s ability to socialise from her participation in the hearing.
Having considered the evidence it is clear that BBCV engages in avoidance techniques and minimises her interactions to only her immediate family and necessary medical practitioners. On the evidence it is clear that BBCV does not leave the house without the assistance of her immediate family.
Ms Aamalia states that BBCV experiences dissociative states and emotional dysregulation in the form of hyperarousal and hypoarousal and BBCV self-reports avoiding social interactions. The evidence before me does not suggest that BBCV lacks the skills or insight into social norms or engages in any emotionally or behaviourally dysregulated conduct in her interactions with others. I am not satisfied that the deeming rule is enlivened within the socialising domain.
The evidence is that BBCV has limited functional capacity for social interaction and requires capacity and confidence building, yet this does not rise to the level of having reduced functional capacity in the socialising domain, as a result of her psychosocial impairments under s 24(1)(c)(ii) of the NDIS Act.
Learning
The learning domain is associated with memory, understanding, learning skills and acquiring knowledge. Dr Kanapathipilli reported in the Access Request Form that BBCV does require assistance in the domain of learning.[44]
[44] JTB, 17, 416.
Ms Aamalia’s response dated 4 September 2024, indicates that BBCV experiences significant difficulties learning new information, retaining conversations, and processing interactions. The evidence is that BBCV uses reminders, alarms and relies on the simplified instructions of and prompting from her immediate family members. In my view this does not enliven the deeming provisions.
The independent Occupational Therapist Ms Agnoletto undertook the Montreal Cognitive Assessment (MoCA) with BBCV and reported she scored 25/30. Ms Agnoletto stated this was just below the normal cutoff score of ≥26, indicating a mild cognitive impairment. Ms Agnoletto’s opinion was this score suggests BBCV experiences subtle difficulties with her cognitive function, though the impairment is mild.[45]
[45] JTB, 6 118.
Ms Angoletto also undertook the Verbal Test of Practical Judgement (VPJ) with BBCV scoring 13/20 indicative of low to moderate difficulty in her practical decision-making ability. BBCV self-reports she relies on support for unfamiliar or complex tasks due to cognitive fatigue and her anxiety. Ms Angnoletto in her report states that BBCV’s responses to the VPJ were concerning in several of the safety-critical scenarios as follows:
o Medical emergencies (suggesting drinking water for medication overdose rather than seeking emergency care).
o Fall management (passive response to a fall scenario, indicating potential risk of prolonged floor time).
o Healthcare access (opting for alternative transport without notifying medical staff of appointment delays).
o Resource management (while prioritizing her children's needs is understandable, the choice to delay medication could pose health risks).These responses indicate impaired judgment particularly in scenarios requiring urgent safety decisions or healthcare management. This aligns with the impacts of her CPTSD and anxiety, where stress may affect rational decision-making.[46]
[46] JTB, 7, 119.
The evidence from Ms Aamalia is that BBCV’s executive functioning and memory is affected by her dissociative states and emotional dysregulation flowing from her CPTSD. In her report Ms Aamalia states it is “almost impossible for her to attend to, concentration on, retain, recall, and process information” and struggles to implement new skills between sessions, “despite visual and written reminders”.[47]
[47] JTB, 13, 200.
On the evidence I accept that BBCV has learning challenges, however I am not persuaded on the totality of the evidence before me that BBCV has a substantially reduced functional capacity within the learning domain. It follows therefore that
s 24(1)(c)(iii) is not met in relation to the domain of learning.
Self-management
The Operational Guidelines explain that the self-management domain is about how a person organises their life, how they plan, make decisions, look after themselves, perform day-to-day tasks at home, problem solve or manage their finances.[48] The consideration must be centred on the person’s mental/cognitive ability, rather than their physical ability to undertake the tasks.
[48] NDIS Operational Guidelines, Applying to the NDIS dated 10 December 2024.
The Respondent relies on the observations of Ms Agnoletto in that BBCV has “the ability to manage and orchestrate support for her son… [she] has access to the bank account and can manage specific financial tasks”.[49]
[49] JTB, 1, 13.
The Respondent also notes in their closing written submissions that BBCV has been able to access services through her treating practitioners for obtaining medicines suggested for her throughout the course of the Tribunal process. I am not satisfied that BBCV is unable to perform tasks of self-management even without support that would enliven the deeming provision.
BBCV’s treating Occupational Therapist Ms Gowland reports that she “requires direct assistance from her husband or usually her eldest son, with making decisions. [BBCV] will often confirm information with them to ensure that she is making the “right decision” or it is ‘permitted’ by others”.[50]
[50] JTB, 9, 173.
The Applicant disagrees with the Respondent’s position, stating that BBCV requires her husband or eldest son to attend appointments with her to “follow through with the actions discussing during the session.”[51] BBCV reports using adaptive techniques such as reminders, alarms and strategies to assist in making plans. While BBCV has to date lived her life having her decisions made by others, I am not satisfied that this means she does not have the ability to make self-management decisions, rather that she hasn’t had many opportunities to date.
[51] JTB, 2, 47.
On the totality of the evidence before me, BBCV has a reduced functional capacity to organise her life, plan, make decisions, look after herself, problem solve and manage her finances. I am not satisfied however that BBCV has a substantially reduced functional capacity in the domain of self-management under s 24(1)(c)(vi) of the NDIS Act.
Self-care
The Operational Guidelines state that the domain of self-care is concerned with personal care, hygiene, grooming, eating, drinking, and health, as well as how a person eats, gets dressed, showers or bathes and toilets.
Ms Agnoletto in her report stated that BBCV relies on her husband to wash her back, lower body and her hair, while she is seated in the shower. Ms Gowland her treating Occupational Therapist states that as a result of requiring hands-on assistance, BBCV only showers every second day. BBCV self-reports that her husband also assists with her safe transfers and her dressing tasks particularly the above the head movements where bending or twisting would be required.
Ms Agnoletto states that these limitations are caused by her fibromyalgia and that her psychosocial impairments contribute by reducing her motivation to engage in self-care tasks.
BBCV’s Clinical Psychologist Ms Aamalia states that BBCV’s ability to “engage in self-care tasks is also impaired by her high levels of dissociation in the context of CPTSD.”[52]
[52] JTB, 13, 201.
The evidence does not persuade me that BBCV is completely unable to participate in the bundle of tasks that make up the self-care domain and accordingly the circumstances prescribed by rule 5.8 are not enlivened.
The evidence does demonstrate that BBCV has low motivation and has substantially reduced capacity to shower, groom and dress herself. The evidence demonstrates that BBCV’s husband showers her in a seated position and assists in all her dressing tasks. I accept she only showers every second day because of this. I am satisfied on the evidence that either BBCV’s husband or her adult children must wash and clean her clothes and prepare her food and drinks. I accept BBCV’s husband and son also must bring her any medications she must take.[53]
[53] JTB, 8, 156.
The evidence is that while BBCV cannot get out of her recliner independently, once her son or husband has helped her from the recliner, she can usually toilet independently, only occasionally requiring assistance with transfers on and off the toilet. On the evidence BBCV can eat and drink independently, though only when the meal or drink is prepared and brought to her in the recliner chair. In their closing written submissions the Applicant contends that ‘without help from her family, the Applicant would be unable to prepare meals, wash or groom herself, brush her teeth or maintain a hygienic living environment’.[54]
[54] Applicant’s closing written submissions dated 3 September 2025, page 13.
I am satisfied by the evidence of Ms Aamalia that BBCV’s ability to remember or desire to undertake the self-care bundle of tasks is further significantly impaired by her high levels of dissociation and lack of motivation due to her psychosocial impairments.
While Ms Agnoletto suggested some equipment that could assist BBCV in completing her self-care tasks I am not persuaded that these items would change her overall substantially reduced functional capacity or high need for support with her self-care tasks, due to the exacerbating effects that her physical and psychosocial impairments have upon each other.
I accept based on the totality of the evidence before me there are substantial functional limitations in BBCV’s self-care bundle of tasks due to the interplay between her physical impairment via her reduced range of movements, deconditioning and physical tolerances and negatively influenced by her dissociative states, emotional dysregulation, shame and feelings of worthlessness.
I am satisfied on the evidence that her physical and psychosocial impairments result in a substantially reduced functional capacity in relation to her self-care activities under s 24(1)(c)(v) of the NDIS Act.
Mobility
The mobility domain refers to how easily a person can move around their home and the community, how they get in and out of bed or a chair, and how they use their arms and legs.
I note that at the time of the assessment, BBCV was using her walking stick to mobilise indoors and outdoors, and not a wheelchair. I do note BBCV was using a wheelchair at the hearing, though this had not been recommended or scripted for her by an allied health professional.
BBCV has self-reported and been observed by her treating Occupational Therapist and the independent Occupational Therapist to ambulate using her walking stick and to have minimal standing and walking tolerances, requiring frequent and considerable rest breaks.
BBCV has self-reported that she cannot independently get out of her recliner chair. Dr Reiter’s opinion was that this is likely caused from physical deconditioning as a result of not utilising her muscles over a long period.
While I accept BBCV cannot get out of her recliner independently, on the evidence before me about mobility I find BBCV’s circumstances are not captured by rule 5.8 and with respect to the statutory threshold.
BBCV is clearly physically deconditioned however I am not satisfied that she does have a substantially reduced functional capacity in the mobility domain under s 24(1)(c)(iv) of the NDIS Act.
Capacity for economic and social participation – s 24(1)(d) of the NDIS Act
The parties agree that BBCV’s physical and psychosocial impairments affect her capacity for social or economic participation. I am also satisfied on the evidence that BBCV’s permanent impairments affect her capacity for social and economic participation under
s 24(1)(d) of the Act.NDIS Support for her lifetime – s 24(1)(e) of the NDIS Act
I am satisfied on the evidence that BBCV has permanent physical and psychosocial impairments and a substantially reduced functional capacity within the self-care domain.
The Respondent states that BBCV’s psychosocial and physical impairments can be treated through mainstream health services or other community services such as Mental Health Care Plans, Chronic Disease Management Plans and organisations such as Orange Door.
The Applicant states that BBCV’s needs are higher than what the mainstream health systems and community services can provide. Ms Aamalia states in her report that “there is no support able to provide long-term intervention… at an appropriate intensity and frequency” and that BBCV “requires long-term, wrap-around support”.[55]
[55] JTB, 13, 203-204.
On the evidence I am satisfied that due to the chronic nature of BBCV’s impairments she requires a higher intensity level of intervention than the duration and frequency of mainstream supports allow and her supports are appropriately provided under the NDIS:
s 24(1)(e) of the Act is satisfied.
Conclusion
I find that BBCV’s physical and psychosocial impairments result in a substantially reduced functional capacity to undertake the prescribed activities as required under paragraph 24(1)(c) of the Act and therefore she meets the criteria in s 24 of the NDIS Act.
I conclude that BBCV meets the access criteria on the basis of the disability requirements of the NDIS Act.
DECISION
The Tribunal sets aside the decision under review pursuant to s 105 of the Administrative Review Tribunal Act 2024 (Cth) and decides in substitution that the Applicant meets the disability requirements for access to the National Disability Insurance Scheme as set out in s 21 of the National Disability Insurance Scheme Act 2013 (Cth).
Dates of hearing: 19 and 20 August 2025 Written submissions 3 September 2025 Solicitors for the Applicant: Mental Health Legal Centre Counsel for the Applicant: Mr S Fuller, of Counsel Counsel for the Respondent: Dr Michael Taylor, of Counsel
Solicitors for the Respondent: Moray & Agnew
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