Bowden and National Disability Insurance Agency

[2024] AATA 847

Bowden and National Disability Insurance Agency [2024] AATA 847 (24 April 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/9376

Re:Leanne Bowden  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member D Connolly

Date:24 April 2024

Place:Sydney

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Senior Member D Connolly

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access criteria – fatigue – depression – anxiety – whether longstanding impairments that require review and possible treatment can be considered permanent impairments – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)

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

CASES

Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002

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

SECONDARY MATERIALS

National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 August 2022) (Web Page) < for Disease Control and Prevention, Myalgic Encephalomyelitis/Chronic Fatigue Syndrome, Symptoms of ME/CFS (27 January 2021) (Web Page)

< for Disease Control and Prevention, Myalgic Encephalomyelitis/Chronic Fatigue Syndrome, Treatment of ME/CFS (28 January 2021) (Web Page)

< FOR DECISION

Senior Member D Connolly

24 April 2024

BACKGROUND TO REVIEW

1. The Applicant, aged 62, seeks review of a decision made by the National Disability Insurance Agency (the Respondent), which affirmed an earlier decision to refuse her request for access to the National Disability Insurance Scheme (the NDIS) under provisions of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).

2. The Applicant lives with her husband in a single storey, two-bedroom home.[1] As at the time of her application, she worked as a school crossing supervisor undertaking at least 2 shifts per week. [2] She also has a keen interest in film producing and acting.[3] 

   [1] EB, Report by Mr Glen Dwyer, Occupational Therapist, p 28.

   [2] EB, Report by Mr Glen Dwyer, Occupational Therapist, p 39.

   [3] EB, Report by Mr Glen Dwyer, Occupational Therapist, p 39.

3. In July 2021, the Applicant made a request to become a participant in the NDIS, claiming at the time that her impairments were caused by chronic lethargy and depression.[4] She claimed her disability impacted her functional capacity in the domains of mobility, communication, social interaction, learning, self-care and self-management.[5]

   [4] T3, Access Request Support Evidence Form, Dr Doug Spence, p 30.

   [5] T3, Access Request Support Evidence Form, Dr Doug Spence, pp 33 – 34.

4. On 3 August 2021, a delegate of the Chief Executive Officer (CEO) of the Respondent determined the Applicant did not meet the access criteria set out in the Act because the delegate was not satisfied her impairments were permanent under subsections 24(1) and 25(1) of the Act. An internal reviewer confirmed the decision on 13 November 2021. The internal reviewer accepted the Applicant lives with a disability that affects her capacity to undertake daily tasks, however was not satisfied that all recommended treatment options that may relieve her impairment have been explored and completed, and therefore the impairment could not be considered permanent. The internal reviewer was also not satisfied that the impairment resulted in substantially reduced capacity.[6] 

   [6] T2, Internal Review Decision, p 19.

5. On 2 December 2021 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.

6. A hearing was conducted by video conference on 26 March 2024 and 3 April 2024. The Tribunal heard oral evidence from the Applicant, Mr James Bowden, the Applicant’s spouse, Mr Glen Dwyer, independent occupational therapist, and Mr Scott Herron, the Applicant’s treating mental health nurse. I observed throughout the hearing that, while the Applicant participated in the hearing from her bed, she appeared to remain engaged in the hearing process, could answer questions and did not express a concern that she was too fatigued to continue with the hearing process. I am satisfied the Applicant had a fair opportunity to engage meaningfully in the hearing process and comment on the issues of concern, in particular whether her impairments are permanent. Those issues were set out in the Respondent’s statement of facts, issues and contentions (RSFIC) which was provided to the Applicant with reasonable notice, about three months before the hearing.

   LEGISLATION

   The access criteria

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

   (1)A person meets the access criteria if:

   (a)    the CEO is satisfied that the person meets the age requirements (see section 22); and

   (b)    the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

   (c)    the CEO is satisfied that, at the time of considering the request:

   (i)the person meets the disability requirements (see section 24); or

   (ii)the person meets the early intervention requirements (see section 25).

8. There is no dispute the Applicant satisfies the age requirements and the residence requirements. I must decide whether the Applicant satisfies the access criteria in section 24 (the disability requirements) or section 25 (the early intervention requirements).

9. Section 24 of the Act states:

   (1)A person meets the disability requirements if:

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

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

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

   (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.

10. If the Applicant does not meet the disability requirements, I will consider whether she meets the early intervention requirements set out in section 25 of the Act which relevantly states as follows:

    (1)  A person meets the early intervention requirementsif:

    (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 that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

    (iii)   is a child who has developmentaldelay; 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.

    …

11. The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation. The relevant Access Rules are set out and discussed in more detail below.

12. The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[7] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guideline).[8]  

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

    [8] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 August 2022) (Web Page) <>

    The Applicant now seeks to rely on chronic lethargy/fatigue, depression and anxiety to meet the access criteria.[9] The Respondent accepts the Applicant has a psychosocial disability arising from impairments associated with depression and anxiety, and a physical impairment of fatigue, and so this requirement is met. I will consider, as required by paragraph 24(1)(a) of the Act, whether I am satisfied that the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, and/or one or more impairments to which a psychosocial disability is attributable.

    [9] EB, Report by Mr Glen Dwyer, Occupational Therapist, p 24; Response to Request for Further Information from Dr Stephanie Williams, pp 70 – 71; Response to Request for Further Information from Mr Scott Heron, p 72.

13. The Respondent has not accepted that the Applicant’s impairments are permanent. If I find the Applicant meets paragraph 24(1)(a) of the Act, I will consider whether any of her impairments are permanent such that paragraph 24(1)(b) of the Act is met.

14. The Respondent contends the Applicant has not demonstrated a substantially reduced functional capacity in any of the specified domains in subparagraphs 24(1)(c)(i) to (vi) and therefore does not meet paragraph 24(1)(c) of the Act. If I find paragraphs 24(1)(a) and (b) are met, I will also consider whether the Applicant’s impairments result in substantially reduced functional capacity to undertake any of the following activities: communication, social interaction, learning, mobility, self-care or self-management.

15. If I find paragraphs 24(1)(a), (b) and (c) are met, I will also consider whether the Applicant’s impairment or impairments affect her capacity for social and economic participation, and, if so, whether she is likely to require support under the NDIS for her lifetime.

16. If I am not satisfied the Applicant meets the disability requirements, I will then consider whether she meets the early intervention requirements. The Respondent contends that the Applicant does not satisfy paragraph 25(1)(a) of the Act based on its view that her impairments are not permanent. If I find that any of the Applicant’s impairments are permanent, I will consider whether she meets other requirements in section 25 of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, and/or one or more impairments to which a psychosocial disability is attributable?

17. In its RSFIC filed in December 2023, the Respondent has accepted that the Applicant has a physical impairment of fatigue but does not accept that it results from Chronic Fatigue Syndrome (CFS), which the Applicant claims to have. The Respondent also accepts that the Applicant has a psychosocial disability arising from impairments associated with depression and anxiety.[10]

    [10] RSFIC, [24] – [26].

18. I must be satisfied the Applicant has a disability attributable to impairment. The impairment needs to be identified with some precision, because the threshold questions on permanency (paragraph 24(1)(b)) and substantially reduced function (paragraph 24(1)(c)) operate not on the concept of disability, or conditions, but on the concept of “impairment”.[11] The concept of “impairment” is generally understood as involving the loss of, or damage to, a physical, sensory or mental function.[12]

    [11] Mulligan v National Disability Insurance Agency [2015] FCA 544, [51].

    [12] Ibid.

19. When making her access application the Applicant provided a supporting evidence form completed by her treating doctor, Dr Doug Spence, dated 12 July 2021.[13] He stated that the Applicant has had chronic lethargy, with tiredness, for 17 years and “is pursuing a diagnosis of chronic fatigue”. He stated she is unable to work, spends days in bed and has chronically disrupted sleep. He also stated she has had depression for 25 years which causes her to be tearful and impacts her memory and concentration.[14]

    [13] T3, Access Request Support Evidence Form, Dr Doug Spence, p 28.

    [14] Ibid, p 30.

20. The Applicant also provided a letter from Ms Erin Smith, psychologist, to whom the Applicant was referred for treatment for depression and anxiety.[15] Ms Smith stated the Applicant’s challenges occur in the context of longstanding chronic fatigue syndrome. She reported that the Applicant experiences brain fog and sleep disturbance, which impacts her energy, stamina, employment opportunities and relationships.

    [15] T4, Letter, Erin Smith (Psychologist), p 35.

21. The Applicant was assessed in May 2023 by Mr Glen Dwyer, occupational therapist, at the Respondent’s request. Mr Dwyer recorded that the Applicant reported daily fatigue, low mood and anxiety, low motivation, low energy, and feelings of hopelessness.[16]

    [16] EB, Report by Mr Glen Dwyer, Occupational Therapist, p 23.

22. The Applicant has been consulting Mr Scott Herron, a registered credentialed mental health nurse. He recorded the Applicant had reported depression, anxiety and chronic fatigue syndrome which impact her intellectual function and cause her to experience a raft of issues including allergies, vision problems, joint aches and pain, inflammation over the body, inability to move and brain fogging.[17]

    [17] EB, Response to Request for Further Information from Mr Scott Heron, p 72.

23. Based on this evidence, and other reports filed with the Tribunal, I am satisfied the Applicant has an impairment, fatigue, which causes some disability. I am also satisfied she suffers from depression and anxiety which cause a psychosocial disability.

24. I am therefore satisfied the Applicant has a disability that is attributable to a physical impairment and impairments to which a psychosocial disability is attributable. The Applicant satisfies paragraph 24(1)(a) of the Act.

    Is the impairment permanent, or likely to be, permanent?

25. In considering whether the Applicant’s impairments are permanent I must apply the relevant Access Rules which are as follows:

    5.4An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

    …

    5.6An 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).

26. Paragraph 24(1)(b) of the Act requires me to be satisfied that the impairment is permanent, not the medical condition. Mortimer J in Davis explained that:

    The critical point is that “permanent” is used as an adjective in s 24(1) to the noun “impairment” (or in the plural, “impairments”). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme. [18]

    [18] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), [86].

27. In other words, a person can have a permanent medical condition but the impairments arising from that condition may not be considered permanent for the purposes of Rule 5.4 because there might be treatments not yet undertaken that would likely remedy the impairment.

28. Also an impairment may not be considered permanent if it requires further medical treatment and review. As stated in Rule 5.6, an 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.

29. Her Honour in Davis also found that 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 individual to, in reality, access, and the word "remedy" should be understood to mean something approaching a removal or cure of the impairment.[19]

    [19] Davis, [136] – [137].

30. The Respondent has argued in its RSFIC that the Applicant’s fatigue is not permanent because the Applicant has not received a diagnosis to explain the impairment, including the reason for its occurrence and the possible treatment options.[20] In respect of anxiety and depression, the Respondent argued that such impairments are not permanent and are secondary to the Applicant’s primary impairment of fatigue and it cannot be said that there are no appropriate, evidence-based treatments options. The Respondent further contended the Applicant has a history of non-compliance with medication and she has not optimised her treatment, citing examples from statements by her treating doctors, Dr Spence and Dr Williams, discussed in more detail below.[21]

    Fatigue

    [20] RSFIC, [30] – [31],

    [21] RSFIC, [54] – [55].

31. A significant concern in this case is that the Applicant’s current treating doctor, Dr Williams, stated in November 2023 that the Applicant “has non-specific fatigue" and "requires a rheumatologist to make a diagnosis.”[22] Dr Williams also reported that the Applicant’s poor mental health contributes to her fatigue and that she was referred to a psychiatrist for review but Dr Williams could see no evidence that this review occurred. Dr Williams stated with respect to the Applicant’s fatigue, that insomnia and potential sleep apnoea are an issue but the Applicant had been reluctant to engage in discussions regarding sleep hygiene and further discussion to consider a sleep study is required. In Dr Williams’ view the Applicant would benefit from an official diagnosis from a rheumatologist, and if CFS is confirmed, psychology would assist in managing her distress and fatigue, and a discussion about sleep hygiene would assist her sleep and reduce her fatigue. She was also of the view the Applicant would experience significant improvement after three months of treatment if sleep apnoea plays a role and the effect of that treatment would be lifelong. Dr Williams also noted that psychiatry would assist in optimising the Applicant’s medications.[23] Dr Williams provided information about referrals to Western Health Rheumatology in November 2023 and to a psychiatrist in November 2022.

    [22] EB, Response to Request for Further Information from Dr Stephanie Williams, p 70.

    [23] Ibid, p 71.

1. I note Dr Spence stated in the access application that the Applicant was “pursuing a diagnosis of chronic fatigue”. In June 2021, Dr Spence recommended that consideration be given to a referral to a chronic fatigue specialist as the Applicant had “diagnosed this [condition] herself."[24]

   [24] EB, Summonsed materials by Station Medical Centre, p 124.

2. Also, in February 2019 Dr Spence noted the Applicant's long-standing insomnia and recorded that she had "very poor sleep hygiene despite multiple educative efforts by me."[25] In January 2020, Dr Spence recorded the Applicant's "ongoing poor sleep" and commented on her "self-induced poor sleep hygiene".[26]

   [25] EB, Response to Request for Further Information from Dr Stephanie Williams, p 70.

   [26] EB, Summonsed materials by Station Medical Centre, p 117.

3. This evidence indicates the Applicant’s fatigue may be the result of poor sleep, and possible sleep apnoea, which have not recently been fully investigated and treated. It is also apparent from Dr Williams’ and Dr Spence’s evidence that her fatigue may be exacerbating her depression.

4. This issue was discussed with the Applicant at the hearing. She told me that her doctor from many years ago, Dr Sharon Lamb, had ordered several different tests to investigate her fatigue, which all came back negative. She said that Dr Lamb told her that she had chronic fatigue syndrome.

5. The documents filed with the Tribunal by the parties in preparation for the hearing include material produced in response to the Tribunal summoning Station Medical Centre, Bacchus Marsh Medical Centre, The Town Medical Centre, which include Dr Lamb’s clinical notes, and Western Psychological Services. During the hearing we reviewed the clinical notes made by her treating doctors dating back to August 2000, including Dr Lamb’s clinical notes, to ascertain whether Dr Lamb had recorded that the Applicant has been diagnosed with CFS. This material was made available to the Applicant prior to the hearing. Relevantly those records include the following information.

6. It was confirmed at the hearing that it is not recorded in any of those clinical notes by Dr Lamb or Dr Spence that the Applicant has been diagnosed with chronic fatigue syndrome. Dr Spence recorded on numerous occasions that the Applicant had reported poor sleep and depression. In January 2015 Dr Spence recorded that the Applicant was “tired ++, sleeping during the day. Poor sleep at night – chronic poor sleep hygiene – TV in room, feels better with short sleeps cf longer.”[27] In December 2015 Dr Spence reported that the Applicant was “counselled ++ – ongoing very poor sleep hygiene…dismissive in conversation…”.[28] In January 2020 Dr Spence recorded that the Applicant continued to have “ongoing poor sleep – self-induced poor sleep hygiene”.[29]

   [27] Ibid, p 106.

   [28] Ibid, p 108.

   [29] Ibid, p 117.

7. In June 2021 Dr Spence recorded that the Applicant wanted access to NDIS for “anx/depression and “chronic fatigue” – ref psychiatrist consider ref to chronic fatigue specialist as no PHx of this and she has diagnosed herself. She certainly has majorly disordered sleep for many years (no apnoea) but has shown no desire to rectify this herself.”[30]

   [30] Ibid, p 124.

8. In July 2021 Dr Spence recorded “really needs a formal diagnosis of chronic fatigue by specialist in the area.”[31]

   [31] Ibid.

9. In April 2020 Dr Naidu recorded that the Applicant was feeling weak and lethargic but was reassured that “likely (a) viral illness”.[32]

   [32] EB, Summonsed materials by Bacchus Marsh Medical Centre, p 195.

10. Dr Lamb first diagnosed the Applicant with depression and prescribed Zoloft in January 2002.[33] She then diagnosed insomnia in April 2002 and prescribed Temaze.[34] She diagnosed the Applicant with stress in May 2003.[35]

    [33] EB, Summonsed materials by The Town Medical Centre, p 224.

    [34] Ibid, p 225.

    [35] Ibid, p 227.

11. In May 2006 Dr Lamb referred the Applicant to Dr Marlene Tham, who worked in the same practice, for management of her depression and anxiety.[36] Dr Lamb recorded in August 2006 that after seeing Dr Tham, the Applicant was doing better with improved mood and self-esteem and was sleeping better.[37] In November 2006 Dr Tham recorded that the Applicant still had longstanding personality difficulties and fluctuations with distress. She diagnosed dysthymia with personality problems.[38] In August 2007 Dr Tham recorded that the Applicant’s depression was overwhelming, and that she had no stamina or energy. She was trying to get acting jobs and had been to Sydney for an acting course. Dr Tham noted the Applicant’s unemployment had deepened her depression. She was having trouble sleeping.[39]

    [36] Ibid, p 235.

    [37] Ibid, p 236.

    [38] Ibid, p 237.

    [39] Ibid, p 240.

12. In November 2006 and August 2007 Dr Tham referred the Applicant to Ms Hilary Flavel, psychologist, for management of depression. There are references in the clinical notes that the Applicant consulted Ms Flavel.[40]

    [40] Ibid, pp 340, 341.

13. In May 2008 the Applicant was referred to a gastroenterologist because of ongoing abdominal pain. It was noted that all blood test results were normal. There was a question as to whether the changes were due to her age. It was noted she was still suffering mood swings and anxiety.[41]

    [41] Ibid, p 242.

14. There is a progress note, unauthored, dated 9 August 2008, that the Applicant reported to the author that she had seen a sleep expert who offered no solutions except to take medication and light treatment. The Applicant reported that she tried to reduce medication (at the time she was taking Stilnox) but she was not sleeping.[42]

    [42] Ibid, p 382.

15. In January 2009 Dr Lamb referred the Applicant to Dr Manjula O’Connor, psychiatrist, for management of “longstanding problems with low mood, poor motivation, getting out of bed… A recent sleep study suggested significant delayed sleep phase.”[43] The Applicant consulted Dr O’Connor and reported a long history of insomnia, anxiety, depression and tiredness. Dr O’Connor reported that the Applicant’s sleep lab study confirmed a delayed sleep phase. She noted the antidepressant medication the Applicant was taking, Aropax, could cause insomnia and recommended it be changed. She recommended the Applicant commence Melatonin.[44]

    [43] Ibid, p 331.

    [44] Ibid, pp 436 – 437.

16. Dr Spence recorded on 10 February 2020 that the Applicant reported taking Melatonin but said “it never did anything”.[45]

    [45] EB, Material produced under summons by Western Psychological Services, p 523.

17. In December 2009 Dr Lamb recorded that the Applicant was in a new relationship and feeling overwhelmed. She had high energy and anxious mood.[46]

    [46] EB, Summonsed materials by The Town Medical Centre, p 245.

18. In September 2013 the Applicant was referred to Dr Jayashri Kulkarni, psychiatrist, for treatment of depression and anxiety.[47] There is a report from Dr Kulkarni indicating the Applicant participated in a double-blind randomised investigation of a pharmaceutical treatment for persistent depression in peri and post menopausal women. She did not receive ongoing care from Dr Kulkarni.[48]

    [47] Ibid, pp 254 and 327.

    [48] Ibid, p 416.

19. In October 2020 Dr Shelley Gray recorded:

    “Unhappy that SL (Sharon Lamb) has left - sad and angry 2004 - chronic fatiue (sic) syndrome - all other tests neg; poor concentration, a bit of acting, Discussion Counselling”[49]

    [49] Ibid, pp 267 - 268.

20. Dr Gray then recorded that the reason given for the visit was chronic fatigue syndrome.[50]

    [50] Ibid, p 268.

21. I note this is the first time chronic fatigue syndrome or CFS is mentioned in the Applicant’s medical records and appears to be based on self-reporting, as there is no record that Dr Lamb diagnosed the Applicant with the condition in the several years she was the Applicant’s general practitioner. I gave the Applicant an opportunity to comment on this at the hearing. She was emphatic that Dr Lamb had diagnosed the condition and became distressed at what she took to be a suggestion that she was not telling the truth.

22. In August 2021 Dr Gray recorded, regarding the CFS diagnosis, that she would need to access the 2005 paper file. She then noted “Review of paper file - actually more suggestive of ADHD (associated with CFS).”[51]

    [51] Ibid.

23. Considered overall, the Applicant’s clinical records frequently mention depression, anxiety, tiredness and insomnia. She has a long history of being prescribed antidepressants and sedatives. There are occasional notes indicating the Applicant is fatigued. I accept it may have been the case that Dr Lamb told the Applicant that possible causes of tiredness had been eliminated and that she had chronic fatigue. However I give significant weight to the more recent opinions of Dr Spence and Dr Williams, who are both of the view that the Applicant has not been formally diagnosed with CFS and she would benefit from an official diagnosis from a rheumatologist. I note also that Dr Gray questions the diagnosis of CFS.

24. I am also persuaded by the suggestion that the Applicant’s fatigue is related to her poor sleep hygiene which in Dr Spence’s view has not been adequately addressed because the Applicant has not engaged on this possible cause of her insomnia. I accept there is evidence in the summoned material indicating the Applicant’s sleep was assessed in 2009 and that Dr O’Connor made some recommendations on how to deal with the issue. I have not seen evidence that all of those recommendations were trialled. Given Dr Spence’s more recent concerns about the Applicant’s poor sleep hygiene, I am not persuaded on the evidence before me that there is no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the Applicant’s insomnia and poor sleep. In my view it is highly likely that, if the Applicant’s insomnia is remedied, her fatigue will be reduced.

25. The Applicant has filed with the Tribunal articles on the symptoms and treatment of CFS which I have read.[52] I accept that the Applicant has reported symptoms of CFS such as fatigue not being the result of unusually difficult activity and not relieved by sleep, sleep problems and brain fog. I also accept there is no cure or approved treatment for the condition. However, as I explained to the Applicant at the hearing, it is not my role to diagnose the Applicant with a condition, to explain her impairments of fatigue and insomnia and I am not satisfied the Applicant has been diagnosed with CFS.

    [52] Centres for Disease Control and Prevention, Myalgic Encephalomyelitis/Chronic Fatigue Syndrome, Symptoms of ME/CFS (27 January 2021) (Web Page) < Centres for Disease Control and Prevention, Myalgic Encephalomyelitis/Chronic Fatigue Syndrome, Treatment of ME/CFS (28 January 2021) (Web Page) < referred to in the Applicant’s email to the Tribunal on 4 April 2024

26. I accept the Applicant underwent a sleep study in 2009. Having regard to the clinical notes there is no evidence to suggest the Applicant trialled light treatment as recommended at the time. However as that was now 15 years ago, I am not satisfied the results of a sleep study now would necessarily be the same. Dr Williams recently formed the view the Applicant may have sleep apnoea. She was also of the view the Applicant would experience significant improvement after three months of treatment if sleep apnoea plays a role in her fatigue. Having regard to Rule 5.6, I am of the view this needs to be investigated and, if found, it needs to be treated before the Applicant’s insomnia and fatigue can be found to be  permanent impairments.

27. I am of the view on the evidence before me that I cannot be satisfied the Applicant’s fatigue is attributable to CFS. It may be that her fatigue is the consequence of poor sleep hygiene, depression, anxiety and/or sleep apnoea.

28. Considered overall, in applying the relevant Access Rules, I am not satisfied on the current evidence before me that the Applicant’s physical impairment of fatigue is, or is likely to be, permanent.

    Depression and anxiety

29. As indicated in the clinical notes set out above the Applicant has had longstanding depression for which she has been treated with various medications.

30. Dr Spence has recorded “depression – probably more personality disorder. Has had a number of antidepressant medications and a mood stabiliser in the past without noticeable improvement (although she has longstanding poor compliance with all Rx)”.[53] At the time he suggested the Applicant see a consultant psychiatrist, but she declined.

    [53] EB, Summonsed materials by Station Medical Centre, p 117.

31. The Applicant has however consulted Ms Erin Smith, a psychologist, who reported the following. Ms Smith was writing in support of the Applicant’s NDIS application. The Applicant was referred to her for treatment for depression and anxiety. Ms Smith understood the Applicant had been diagnosed with CFS, which in her view significantly impaired the Applicant’s functional capacity in all aspects of her life and exacerbated her mental health symptoms. Ms Smith commented on the Applicant’s chronic sleep disturbance and requirement for sleeping tablets. She also noted the Applicant experiences significant anxiety associated with the impact of CFS. She concluded that, as there is no evidence- based treatment options for CFS, her secondary depression and anxiety are likely to be permanent.[54]

    [54] T4, Letter, Erin Smith (Psychologist).

32. Mr Scott Herron, registered mental health nurse, who the Applicant has been seeing since July 2023, also noted that the Applicant had reported to him that she had had CFS, depression and anxiety for several decades. Mr Herron formed the view that the Applicant may benefit from testing for neurodiversity and he supported a recommendation that the Applicant consult a psychiatrist. In his recommendation he commented that there is no cure for CFS which he associates with her depression and anxiety.[55]

    [55] EB, Response to Request for Further Information from Mr Scott Heron, pp 72 – 73.

33. In his oral evidence Mr Herron stated the Applicant usually attended their fortnightly sessions which started in person and then were conducted by telehealth. There was one occasion when the Applicant could not attend because of fatigue. She self-reported CFS to him. He had no reason to disbelieve the diagnosis. He was not aware her treating doctors had commented that she had self-diagnosed the condition. He explained that he had formed the view the Applicant may be on the autism spectrum because she can be very fixed in her views. He believes a psychiatric assessment would be useful as, without a clear diagnosis and treatment plan, the Applicant’s capacity cannot be fully explored. He was not aware of any recent medication review.

34. The Applicant told me that she has been taking Lexapro for a long time because it works. However she said she still has insomnia. She has been told the medication is a “pick-me-up” and it was recommended for that reason that she take it in the morning. However she takes it at night because she does not think it makes any difference. She still has to take Stilnox to go to sleep.

35. I accept the Applicant has had longstanding depression and anxiety. I note however that Dr Williams is of the view the Applicant should be reviewed by a psychiatrist and that psychiatry would assist in optimising her medications. Mr Herron also shares the view that the Applicant should be reviewed by a psychiatrist. Having regard to the Applicant’s clinical records I note she has been taking Lexapro for many years, at least since 2014, with no evidence of a psychiatric review.

36. I am persuaded by Dr Williams’, Dr Spence and Mr Herron’s views that, while the Applicant’s depression and anxiety are longstanding, she would benefit from an assessment and review by a psychiatrist. I raised this with the Applicant at the hearing and she indicated that she cannot afford to access assessments. She indicated she had been told that an autism assessment can take “forever” and cost thousands of dollars. I am not satisfied on the evidence before me that that is the case.

37. Ms Smith appears to have associated the Applicant’s depression and anxiety with CFS, which I am not satisfied the Applicant has. She concluded the Applicant’s mental health symptoms are exacerbated by her fatigue. I am also of the view that, if the Applicant does have sleep apnoea or another treatable sleep disorder, and it is treated, this may benefit her and reduce her depression and anxiety.

38. Having regard to Rule 5.6 I am of the view, until such time the Applicant’s sleep, depression and anxiety are reviewed and possible further treatment provided, I cannot conclude that the impairments she suffers because of her depression and anxiety are permanent or likely to be permanent.

39. Accordingly, I am not satisfied, with respect to depression and anxiety, the Applicant meets paragraph 24(1)(b) of the Act.

    Does the Applicant satisfy the disability requirements?

40. For the reasons given above, having applied the relevant Access Rules, I am not satisfied the Applicant’s impairment or impairments are, or are likely to be, permanent, as required by paragraph 24(1)(b) of the Act. As this is a mandatory requirement, the Applicant does not meet the disability requirements.

41. As the Applicant does not meet paragraph 24(1)(b) of the Act it is not necessary for me to consider whether she meets the other disability requirements set out in paragraphs 24(1)(c), (d) and (e) of the Act.

42. I have taken into account the evidence given by Mr Bowden, the Applicant’s spouse. However it related to whether the Applicant has substantially reduced functional capacity and not whether her impairments are permanent. This explains why I do not refer to Mr Bowden’s oral evidence in my findings.

    Does the Applicant satisfy the early intervention requirements?

43. The Respondent has submitted the Applicant does not meet the early intervention requirements because her impairments are not permanent. For the reasons given above I have also formed the view that her impairments are not permanent.  Accordingly neither subparagraphs 25(1)(a)(i) nor 25(1)(a)(ii) are met.

44. As the Applicant is not a child who has a developmental delay, she does not meet subparagraph 25(1)(a)(iii) of the Act.

45. The Applicant does not meet any of the circumstances set out in paragraph 25(1)(a) of the Act, a mandatory provision of the early intervention requirements.

46. Accordingly, I am not satisfied the Applicant meets the early intervention requirements to enable her to become a participant of the NDIS under section 25 of the Act.

    CONCLUSION

47. I find the Applicant does not meet the disability requirements in section 24 of the Act, nor the early intervention requirements in section 25 of the Act, to access the NDIS. Therefore, the Respondent’s internal review decision dated 13 November 2021 is correct.

    DECISION

48. The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly.

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

Associate

Dated: 24 April 2024

Date(s) of hearing:	26 March 2024 and 3 April 2024
Applicant:	Self-represented
Solicitors for the Respondent:	Ms J Fenech, HWL Ebsworth Lawyers