Clarke and National Disability Insurance Agency

Clarke and National Disability Insurance Agency [2024] AATA 2860 (14 August 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/6184
Re:Karen Clarke
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member D Connolly
Date:14 August 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 - osteoarthritis – anxiety – whether a longstanding condition is a permanent impairment – post traumatic stress disorder (PTSD) – 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
National Disability Insurance Agency v Foster [2023] FCAFC 11
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 DECISION
Senior Member D Connolly
BACKGROUND TO REVIEW

Ms Karen Clarke (the Applicant), aged 69, seeks review of a decision made by the National Disability Insurance Agency (the Respondent or the Agency), 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). The Applicant was 64 years old at the time of her request.
The Applicant lives with her husband in their privately owned single storey home, in a suburb of Newcastle, NSW. They have two adult children who live independently and four grandchildren. The Applicant ceased employment as a registered psychologist in about 2021 due to what she described as declining mobility and mental health issues which adversely affected her ability to perform the duties of her role.[1]
[1] EB, B3, Report by Mr Gary Stretton, Occupational Therapist, p 41.
On 8 August 2020, 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 2 September 2020. The internal reviewer accepted the Applicant lives with a disability with respect to osteoarthritis and anxiety but was not satisfied she had a disability arising from kidney stones. The internal reviewer noted the Applicant’s treating doctor had indicated that the Applicant required surgery, exercise, physiotherapy, weight loss and a reduction in repetitive tasks. Accordingly with respect to osteoarthritis and anxiety, the internal reviewer was not satisfied that all available and appropriate treatment options had been explored and completed, and therefore the impairment could not be considered permanent. The internal reviewer was also not satisfied that the impairments resulted in substantially reduced capacity.
On 8 October 2020 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.
A hearing was conducted by video conference on 7 November 2023 and 30 January 2024 with a former Tribunal member presiding over the hearing. Due to personal circumstances, the member did not complete his decision before the expiry of his term of appointment to the Tribunal. The matter was then reconstituted and the Tribunal held a telephone directions hearing on 25 July 2024 to discuss the proposal that the newly constituted member review the evidence and recordings of the hearing, and make a decision based on what was before the Tribunal. The parties agreed with this approach.
LEGISLATION
The access criteria
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).
There is no dispute the Applicant satisfies the age requirements and the residence requirements. The Tribunal must decide if the Applicant satisfies the access criteria in section 24 (the disability requirements) or section 25 (the early intervention requirements).
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.
If the Applicant does not meet the disability requirements, the Tribunal must 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 psychosocial disability 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.
…
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.
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.[2] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guideline).[3]
[2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.
[3] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 August 2022) (Web Page) < BEFORE THE TRIBUNAL
Evidence of Dr Lisa Wall, the Applicant’s general practitioner
In support of a request for access to the NDIS in 2019 the Applicant provided to the Agency an Access Request Form completed by her treating doctor, Dr Lisa Wall, reporting the Applicant has impairments arising from osteoarthritis in both knees, anxiety and kidney stones. Dr Wall reported that the conditions are lifelong and will cause some ongoing lifelong impairment. She reported however that the Applicant did not need assistance in any of the six activity domains set out in the Act: mobility, communication, social interaction, learning, self-care or self-management (the six domains).[4]
[4] EB, T7, Access request dated 26 July 2019, pp 154 – 160.
Dr Wall also wrote to the Agency on 24 October 2019 advising that the Applicant’s anxiety and knee condition would be lifelong and would not improve.[5]
[5] EB, T8, Letter from Dr Lisa Wall dated 24 October 2019, p 161.
The Applicant made another request for access and lodged an Access Request Form on 28 May 2020, the subject of this review.[6] Dr Wall listed the Applicant’s diagnoses as osteoarthritis in both knees, both wrists, both hips and lumbar spine, anxiety and kidney stones.[7] [8] Dr Wall formed the view the Applicant did not require assistance in any of the six domains.[9]
[6] EB, T9, Access request dated 28 May 2020, pp 162 – 169.
[7] Ibid, p 166. Also see T6, p 153, the Applicant provided an x-ray report dated 14 January 2019 confirming she had a stone in her right kidney.
[8] EB, A1, Applicant’s Test Results of Bone Density Test dated 24 February 2021, p 1. After making her review application the Applicant filed bone density results indicating she was osteopenic at the hip.
[9] EB, T9, Access request dated 28 May 2020, pp 166 – 168.
Subsequently, in an Access Request – Supporting Evidence Form signed 31 July 2020, Dr Wall reported that the Applicant required home modifications, rails and taps, due to the Applicant’s mobility.[10]
[10] EB, T10, Access Request – Supporting Evidence, p 175.
In a letter dated 2 March 2021 Dr Wall reported that the Applicant has anxiety for which she self-monitors and applies cognitive behaviour therapy (CBT). The condition fluctuates and needs full time management. With respect to the Applicant’s arthritis, Dr Wall reported the Applicant has used weight loss, physiotherapy, medication, exercise and had surgery but it is a degenerative condition that will not get better.[11]
Evidence of Dr O’Keefe, orthopaedic surgeon
[11] EB, A2, Letter from Dr Lisa Wall to the NDIS dated 2 March 2021, p 3.
The Applicant also provided a Workers Compensation Commission Medical Assessment Certificate, undertaken by Dr David O’Keefe, orthopaedic surgeon, dated 6 July 2015, reporting that the Applicant injured her right knee at work in 2005. She had bilateral knee replacements in March 2009. She was happy with her left knee replacement but her right knee required further surgery which was undertaken in May 2012. As at the time of the assessment, the Applicant’s right knee continued to be painful, swollen and unstable. She was having difficulty with stairs. Dr O’Keefe observed an abnormal gait.[12]
Evidence of Dr Moisey, consultant psychiatrist
[12] EB, T3, Workers Compensation Commission Medical Assessment Certificate, Dr David O’Keefe dated 6 July 2015, pp 142 – 147.
The Applicant provided two reports from Dr Suraiya Moisey, consultant psychiatrist, the first dated 3 August 2018, prepared in support of the Applicant’s application for Disability Support Pension. Dr Moisey reported the Applicant felt unable to return to work due to the overwhelm of her workload. She was at the time working as a psychologist at a GP practice. She reported workplace bullying in her previous employment. Her condition was managed with antidepressant medication. The Applicant had also tried mindfulness and relaxation. She told Dr Moisey that she first noticed a breakdown in her mental health in 2014 when she developed cardiovascular symptoms. She used her own knowledge of mindfulness and CBT to manage the symptoms and did well until she had issues with the insurance company managing her worker’s compensation payments. She developed symptoms of depression which led to her struggling to manage her Activities of Daily Living (ADLs) and hygiene. Dr Moisey made a preliminary diagnosis of generalised anxiety disorder (GAD), major depression and PTSD, related to work-related trauma. She noted the Applicant engaged in conversation, with normal speech, maintained normal social reciprocity and showed reasonable insight. She demonstrated no thought or perceptual abnormalities or risk issues. Dr Moisey formed the view it was imperative the Applicant develop a therapeutic relationship and undergo medication trials. Dr Moisey noted however that the Applicant had chosen to continue to be cared for by her general practitioner at the time, Dr Tyler Schofield, because of her financial circumstances.[13] Dr Schofield did not give written or oral evidence.
[13] EB, T4, Report of Dr Suraiya Moisey dated 3 August 2018, pp 148 – 150.
In the second report dated 10 August 2018, Dr Moisey reported the diagnoses had affected the Applicant over a four year period and were detrimental to her overall functional ability, affecting her ability to work even 14 hours (a week). She was struggling with task completion, self-care and independent living, was avoiding social activities and was anxious about interpersonal relationships. Her view was the condition should be managed with a tailored program from a biological and psychosocial perspective and that she should work with the GP and a psychologist to manage the symptoms for a return to quality of life.[14]
The Applicant’s statement of lived experience (the SOLE)
[14] EB, T5, Report of Dr Suraiya Moisey dated 10 August 2018, pp 151 – 152.
The Applicant provided a statement of lived experience[15] on 5 March 2021 in which she set out the background to her conditions. With respect to impairment, the Applicant stated even after surgery in 2012 her ability to engage in outdoor activities ceased. Due to physical impairments and anxiety, she is no longer able to water ski or go bushwalking. She continues to participate in camping but is restricted to going for walks and exploring the area. She reported that she is unable to kneel, walk long distances or up and down stairs as these activities increase pain and swelling. Sitting for long periods results in stiffness in her right knee. The Applicant also reported that her knee issues impact her sleep which affects her mental health.
[15] EB, A4, Statement of Lived Experience of the Applicant, pp 7 – 13.
The Applicant reported that on a good day she can do basic tasks around the house, she can read and phone a friend. However on a bad day she has to focus on relaxing.
The Applicant reported that she can no longer garden, complete household cleaning, or climb a ladder to clean windows. She cannot walk long distances or on uneven surfaces. She finds it difficult to pick up a coffee cup one handed, squeeze a cloth, make the bed, turn the mattress, pick up her grandchildren or do crafts. She also finds it difficult to make decisions at times.
With respect to social interaction, on a good day the Applicant might have coffee with a neighbour. She worries about going to a new place or being adventurous as she fears having a panic attack in public. She worries about the impact of her mental health conditions on her relationship with her husband. She worries about weight gain associated with antidepressant medication.
With respect to self-care, the Applicant reported that she can manage her own personal hygiene but anxiety interferes with decision making, such as when to shower. If she is having a bad day she is unable to prepare her own meals and relies on takeaways.
Regarding learning, the Applicant stated she has problems with her memory and retention. While she was working as a psychologist on a part time basis, she could no longer take on clients who needed reports as she found the preparation anxiety provoking. She could however continue to provide counselling although at times this impacted on her mental health as she would relive her own experience. She also had difficulty staying on track. She could not train in groups. She finds it difficult to learn new things due to problems with concentration and memory.
Regarding self-management, the Applicant reported that she has made some bad decisions, for example selling the family home and moving, and purchasing a new caravan. However she generally manages the household finances.
Regarding communication, the Applicant reported that her anxiety causes memory problems, difficulty in putting sentences together and finding the right word and concentration problems.
The Applicant reported that without support she will regress and do less. She commenced aqua aerobics in an attempt to maintain her best functional self. She hopes NDIS support will include help around the house and assistance with continuing strengthening exercises. This will increase her self-worth which will increase her confidence, mental health and independence.
Mr Clarke’s spouse/carer impact statement
The Applicant’s husband, Steve Clarke, provided a spouse/carer impact statement dated 4 March 2021.[16] He stated he and the Applicant hardly ever partake in activities that they used to enjoy, such as surfing, swimming, bushwalking and water-skiing, since her mental health diagnosis and osteoarthritis. Walking on sand affects the Applicant’s knees and prolonged sitting is problematic. She can no longer play tennis or squash. Her reduced mobility makes her despondent. Walking causes swelling and a limp. She has difficulty with stairs. She used to be meticulous with housekeeping but she now finds it a chore. This makes her anxious. Her mood can change hourly at times. This impacts their grandchildren staying over, and their relationship. They now rarely attend the grandchildren’s sporting events. The Applicant used to be a member of the Lion’s Club but she no longer attends because she finds attending functions anxiety provoking. She also finds it difficult socialising with family.
[16] EB, A3, Spouse/Carer Impact Statement of Mr Steve Clarke, pp 4 – 6.
Mr Clarke reported that he helps with cleaning the shower recess, and using the carpet sweeper when the Applicant’s anxiety or arthritis are getting her down. However most housework is left until the Applicant can do it. He prepares breakfast most of the time.
The Respondent arranged for the Applicant to be assessed by independent medical professionals, who provided the following reports.
Report of Dr Trudi Richmond, consultant rehabilitation physician
Dr Trudi Richmond undertook an independent medical assessment in May 2021 and reported the following.[17] The assessment was undertaken by video conference and the physical examination was conducted with the assistance of a registered, qualified physiotherapist under Dr Richmond’s supervision and direction. Dr Richmond reported the Applicant has persistent swelling of her right knee, varying degrees of pain and a slow, altered gait. She was not using a mobility aid but had been advised by her physiotherapist to use a walking stick. She cannot kneel, walk long distances, or walk up and down stairs. She has difficulties with basic domestic ADLs, including using taps, making the bed and doing crafts. She has decreased hip and knee flexion, reduced arm swing on the right, and she was able to achieve five sit to stands using arm support in 30 seconds.
[17] EB, B1, Report of Dr Trudi Richmond dated 4 June 2021, pp 14 – 24.

Dr Richmond also noted the Applicant reported her symptoms varied significantly each day. With respect to treatment and expected outcome, Dr Richmond reported there are evidence-based treatments recommended for osteoarthritis of the knees, including weight loss, land-based exercises including walking, muscle strengthening, hydrotherapy, Tai Chi and cycling. Mobility aids can be used to improve function, walking distance, speed and reduce falls risk. She noted the Applicant had tried weight loss, physiotherapy, medications and had surgery including bilateral knee replacements, but had had limited physiotherapy. She continued to have residual pain and an altered gait despite these treatments. Dr Richmond formed the view the Applicant would benefit from further physiotherapy treatments to improve strength, function and assist with pain management, and may also benefit from nerve blocks and pulsed radiofrequency to her nerves that supply the knee joint. She formed the view a reconditioning program and graded exercise program will increase the Applicant’s function and independence. However she found the Applicant’s osteoarthritis is permanent, degenerative, and will continue to deteriorate with and without treatment.
With respect to mobility, Dr Richmond opined the Applicant is at risk of falling without the use of a mobility aid. The Applicant self-reported varying walking tolerances depending on the weather. She avoids walking outside in cold weather and walking up and down inclines but can walk around inside her house. On examination she was not using mobility aids and held on to the wall to walk up a step.
Dr Richmond noted the Applicant self-reported that she holds onto her husband or leans on a shopping for support when shopping. She noted the Applicant is independent in most self-care tasks but reports some difficulties with lower limb dressing and aspects of toileting. She has some difficulty with more advanced meal preparation. Dr Richmond formed the view the Applicant is able to interact with others in certain social situations from a physical perspective. However due to her limited mobility, she may experience difficulties with access. Dr Richmond noted that the Applicant was able to communicate effectively during the consultation but could not comment on the Applicant’s ability to communicate effectively in all social situations. She formed the view that the Applicant was able to make decisions independently but could not comment on how her mental health condition may negatively impact her ability to make decisions outside her area of specialty.
Report of Dr Peter Ashkar, clinical psychologist
At the Respondent’s request, Dr Ashkar undertook a neuropsychological assessment of the Applicant, by Zoom, on 20 January 2022.[18] Dr Ashkar reported that the Applicant reported to him the following. Her major depressive disorder came from her pain. Her depression causes her less problems than her panic attacks and anxiety. She experienced her last panic attack in September 2012 and her anxiety symptoms have much settled since. She occasionally has a little panic attack. Pain and loss of function are her primary concern, with secondary psychological impact, including loss of motivation and fear she will have a panic attack in public. She reported that she sometimes finds simple tasks difficult, sometimes struggles to find words, and is distractable and forgetful from time to time.
[18] EB, B2, Report of Dr Peter Ashkar dated 28 February 2022, pp 25 – 34.
The Applicant told Dr Ashkar she retired as a psychologist in 2021. Apart from headaches since 2021 she has no other neurological history. She does not smoke and drinks alcohol only occasionally. She has had kidney stones removed. She has high blood pressure. She has no history of self-harming or suicidal behaviour. She has not engaged in psychological treatment since 2015 and was not taking medication at the time of the assessment.
Dr Ashkar observed that the Applicant was punctual and completed the assessment using her mobile phone. He formed the view she was appropriately dressed and she appeared to be groomed. He observed her behaviour was “calm and suitably controlled (and there was no evidence of agitation, hypervigilance, or inappropriate anger commonly associated with an underlying post traumatic stress disorder)”. He considered her mood reactive and appropriate to the situation. Her affect was a little subdued but congruent with her mood. He observed no indication of anxiety, mood disturbance, psychosis or intoxication. He found her to be alert and appropriately oriented. In his view there was “little in her behaviour to raise concern about her cognition.”
Dr Ashkar listed the assessment tools he uses to undertake his assessments. He reported the Applicant’s performance on tests of effort administered during the assessment were satisfactory (she passed three out of three) and the test results are considered a valid indicator of her cognitive abilities. Dr Ashkar noted the Applicant declined to complete an assessment of emotional/psychiatric and personality functioning so he could not complete a psychometric examination of her emotional/psychiatric symptoms, personality functioning and response style. He reported she also declined to complete a psychometric examination of her adaptive behaviour functioning.
Dr Ashkar concluded there were no indications of anxiety or mood disturbance in the Applicant’s presentation and no evidence of cognitive impairment on psychometric testing. He noted she denied being frightened for her life when she experienced workplace bullying and he formed the view the diagnosis of PTSD was without basis. He concluded there was no evidence of clinically significant anxiety or mood disturbance warranting disability support, although he acknowledged psychometric assessment of the Applicant’s emotional/psychiatric and personality functioning had not been completed. He formed the view there was no evidence of anxiety, mood disturbance or cognitive impairment limiting her ability to communicate effectively, interact socially, learn new material or skills, care for herself or engage in independent decision making and self-management. He noted there may be limits on her social interaction and mobility associated with knee pain but these needed to be determined by functional assessment outside his area of expertise.
Dr Ashkar’s assessment and report were the subject of a complaint by the Applicant to the Health Care Complaints Commission (HCCC). At the hearing the parties each filed correspondence relating to the HCCC’s investigation of the complaint. The issues the Applicant raised and the oral evidence given at the hearing regarding the assessment and report are discussed in more detail below, under the Tribunal’s consideration of the evidence.
Report of Mr Gary Stretton, occupational therapist
At the Respondent’s request, Mr Stretton undertook a functional capacity assessment at the Applicant’s home in February 2023.[19] The assessment included questioning the Applicant and observing her demonstrate or simulate activities. Mr Stretton observed the Applicant was well groomed and her clothing appeared to be laundered. He found her to be pleasant, cooperative, candid and genuine in her responses to his questions. He noted she made good eye contact and her spoken word was clear and eloquent. She told him her presentation on the day was typical of an average day with some being better and some worse. She had experienced some anxiety in anticipating the assessment process.
[19] EB, B3, Report of Gary Stretton dated 23 March 2023, pp 35 – 64.
Mr Stretton reported that the Applicant told him she has received psychological treatment and found it initially helpful to have somebody to talk to, however as a psychologist herself she felt she was aware of individual strategies to put in place and moved to a program of self-management. She tried anti-depressant medication but ceased it due to weight gain. She described good, supportive relationships with her immediate family members, her husband and two adult children, who she sees regularly. Her main informal support is from her husband but he has his own health concerns. She has a network of friends but does not see them as she worries about having panic attacks.
Mr Stretton administered the WHODAS 2.0 (World Health Organisation Disability Schedule), a generic assessment instrument for health and disability. He noted the Applicant’s self-assessed level of difficulty with daily activities using the WHODAS was greater than her reported activity participation during other parts of the assessment.
Mr Stretton also used the Australian Modified Lawton’s Activities of Daily Living Assessment. He explained that it “measures outcomes relating to instrumental tasks, such as a person’s ability to perform their own shopping, cleaning, cooking, manage their finances; skills that demonstrate their independence in the wider context. Scoring is completed on the basis of what a person is capable of doing rather than what they actually do. By assessing capability, it takes into account not only physical function but also cognition and behaviour.” He advised a low score indicates a low level of functioning and a high score indicates a high level of functioning. The Applicant scored 27/30.
The results of Mr Stretton’s assessment are discussed in more detail below, under the consideration of evidence.
Oral evidence, and further documentation, provided at the hearing
The Applicant, Mr Clarke, Dr Ashkar and Mr Stretton gave oral evidence at the hearing. Relevant aspects of the oral evidence are discussed in detail below.
The complaint made to the HCCC by the Applicant about Dr Ashkar was discussed. The Applicant provided a letter, addressed to her, dated 6 June 2022, from the HCCC, regarding its decision in response to her complaint about Dr Ashkar. The HCCC’s Senior Assessment Officer (SAO) acknowledged the Applicant’s complaint that Dr Ashkar’s report contained inaccurate information, and that she felt, during the interview with him that he did not listen to her, and that he reprimanded and belittled her throughout the process. The SAO advised the Applicant that the HCCC had obtained a response to her complaint from Dr Ashkar. Also, because Dr Ashkar is a registered psychologist, the HCCC shared the information with the Psychology Council of NSW and consulted them to reach its decision.
The SAO acknowledged the Applicant’s concerns but advised that the HCCC had decided not to take any further action, having found Dr Ashkar was entitled to his professional opinion for the purposes of the report, and advising it is beyond the scope of the HCCC to change that opinion. It was noted Dr Ashkar acknowledged that miscommunication can occur but stated that he tried to be supportive throughout and subsequent to the assessment. The SAO advised that they wrote to Dr Ashkar to remind him of the importance communication plays in health outcomes and emphasised the need to ensure that he is respectful and empathetic during assessments, and that the comments were made to Dr Ashkar with the expectation that he will improve this aspect of his practice.
The Respondent also filed with the Tribunal at the hearing a letter sent to Dr Ashkar by the same SAO, dated 6 June 2022, stating the Applicant’s complaint had been assessed and the HCCC was satisfied that Dr Ashkar was entitled to provide his opinion for the purposes of the report, and that he had acknowledged he faced limitations in being able to gain a complete understanding of the Applicant’s symptoms and presentation for the report. The SAO recognised “the very nature of working in the context of medico-legal reports tends to attract complaints. However, (the Applicant) has expressed that she felt that she was reprimanded and belittled throughout the whole assessment process.” The SAO stated “In light of previous complaints directed at communication by you and the above considerations, we will therefore be making comments reminding you of the importance of effective communication. In particular we would like to emphasise the need to be respectful and empathetic during assessments, irrespective if they are for medico-legal reports or have been requested by insurers.”
ISSUES
The Applicant first requested access to the NDIS in 2019, prior to the application the subject of this review, on the basis of impairments arising from osteoarthritis in both knees, anxiety and kidney stones.[20] Her treating doctor, Dr Wall reported that the conditions are permanent and will cause some ongoing lifelong impairment. She reported however that the Applicant did not need assistance in any of the six domains.
[20] EB, T7, Access request dated 26 July 2019, pp 154 – 160.
In a subsequent Access Request Form lodged on 28 May 2020, the subject of this review, Dr Wall listed the Applicant’s diagnoses as osteoarthritis both knees, both wrists, both hips and lumbar spine, anxiety and kidney stones. Again, Dr Wall concluded however that the Applicant did not require assistance in any of the six domains.[21]
[21] EB, T9, Access request dated 28 May 2020, pp 162 – 169.
Subsequently, in an Access Request – Supporting Evidence Form signed 31 July 2020, Dr Wall reported that the Applicant required home modifications, rails and taps, due to the Applicant’s mobility.[22]
[22] EB, T10, Access request – Support Evidence Form dated 31 July 2020, pp 170 – 176.
Dr Wall did not give evidence at the hearing. On 7 November 2023 the Tribunal asked the Applicant if she had asked Dr Wall to give evidence. The Applicant indicated she could not afford to pay Dr Wall to appear. The Tribunal asked the Applicant if she had asked Dr Wall about any fee for attendance. The Applicant said she had not, but she imagined Dr Wall would charge a fee because she works every day and she would have to give up a day’s pay. The Tribunal explained that Dr Wall may not need to give up a whole day and she could appear by video. It invited the Applicant to make arrangements for Dr Wall to attend at the reconvened hearing, noting that Dr Wall’s reports were her primary evidence and were two years old. The Applicant was advised that it may be helpful to know more about the treatments she had received. The Applicant said she was not receiving any treatment from Dr Wall. The Tribunal explained that it would be helpful for the Applicant to reconsider this.[23] The Applicant did not arrange for Dr Wall to give evidence at the reconvened hearing.
[23] Transcript, pp 4 – 5.
As confirmed at the hearing the Applicant now seeks access on the basis of impairments arising from anxiety, osteoarthritis and kidney stones. She said she still gets kidney stones. She said regarding anxiety, “there’s a bit of post-traumatic stress there as well”.[24] She referred to Dr Moisey’s report regarding PTSD. She stated NDIS support would enable her to have the level of support that she requires for her disabilities.[25]
[24] Ibid, p 6.
[25] Ibid, p 7.
The Respondent’s position is that, for the purposes of paragraph 24(1)(a) of the Act, the Applicant has a disability that is attributable to one or more impairments with respect to the conditions of osteoarthritis of the bilateral hip, bilateral knees, bilateral wrists, and lumbar spine. It submitted however that the Applicant does not meet paragraph 24(1)(a) in respect of any psychosocial impairment.
The Tribunal will consider, as required by paragraph 24(1)(a) of the Act, whether it is 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.
For reasons discussed below the Respondent has submitted that the Applicant’s impairments are not permanent. If the Tribunal finds the Applicant meets paragraph 24(1)(a) of the Act, it will consider whether any of her impairments are permanent such that paragraph 24(1)(b) of the Act is met.
The Respondent has submitted that the Applicant has not demonstrated a substantially reduced functional capacity in any of the six domains and therefore does not meet paragraph 24(1)(c) of the Act. If the Tribunal finds paragraphs 24(1)(a) and (b) are met, it will also consider whether any of the Applicant’s impairments result in substantially reduced functional capacity to undertake any of the six domains.
If the Tribunal finds paragraphs 24(1)(a), (b) and (c) are met, it will also consider whether the Applicant’s impairment or impairments affect her capacity for social and economic participation (as required by paragraph 24(1)(d)), and, if so, whether she is likely to require support under the NDIS for her lifetime (as required by paragraph 24(1)(e)).
If the Tribunal is not satisfied the Applicant meets the disability requirements, it will 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 the Tribunal finds that any of the Applicant’s impairments are permanent, it will consider whether she meets other requirements in section 25.
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?
The Tribunal must be satisfied the Applicant has a disability attributable to impairment or impairment to which psychosocial disability is attributable. 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”.[26] The concept of “impairment” is generally understood as involving the loss of, or damage to, a physical, sensory or mental function.[27]
[26] Mulligan v National Disability Insurance Agency [2015] FCA 544, [51].
[27] Ibid.
In the Respondent’s statement of facts, issues and contentions filed 24 May 2022 (SFIC1), the Respondent has accepted that the Applicant has a disability that is attributable to one or more impairments with respect to the conditions of osteoarthritis of the bilateral hips, knees and wrists, and lumbar spine. However the Respondent does not accept that the Applicant has impairment to which a psychosocial disability is attributable.[28] The Respondent repeated this position in amended statements of facts, issues and contentions filed on 24 November 2022 (SFIC2) and 28 August 2023 (SFIC3).
[28] SFIC1, [50].
At the hearing the Respondent submitted that it is not in dispute that the Applicant has an impairment attributable to anxiety, and so paragraph 24(1)(a) of the Act is not in dispute between the parties as regards to anxiety.[29] The Respondent submitted however that the evidence demonstrates the Applicant is not seeking access or funding from the NDIS for a psychosocial impairment, as Mr Stretton reported that the Applicant stated that she was pursuing access for capacity building supports, such as physiotherapy and massage and core supports for home cleaning, as the need may arise.[30] Relying on Dr Ashkar’s evidence the Respondent also submitted that the PTSD diagnosis was without merit.
The Applicant’s physical impairment
[29] Transcript, p 12.
[30] Ibid.
The Applicant has osteoarthritis, in both knees, for which she has had bilateral knee replacements, and in her hips, wrists and lumbar spine. Dr Wall has reported that the condition is permanent.[31] Dr Richmond also reported the Applicant’s osteoarthritis is permanent, degenerative, and will continue to deteriorate with and without treatment.[32]
[31] EB, T7, Access request dated 26 July 2019, pp 154 – 160.
[32] EB, B1, Report of Dr Trudi Richmond dated 4 June 2021, p 19.

The Applicant stated in her SOLE that her knee pain prevents her water-skiing and bushwalking. She cannot kneel. Traversing stairs and walking long distances impacts pain and swelling. Sitting for long periods results in extreme stiffness in her right knee. Pain impacts her sleep. The Applicant’s osteoarthritis has resulted in her not being able to garden or complete household tasks. She finds it difficult to pick up a coffee cup with one hand.[33]
[33] EB, A4, Statement of Lived Experience of the Applicant, pp 7 – 13.
The Applicant has not provided any submissions as to why the Tribunal should be satisfied that kidney stones cause her impairment.
Having regard to Dr Wall’s and Dr Richmond’s reports and the Applicant’s SOLE, and other medical evidence discussed in more detail below in relation to other provisions, the Tribunal is satisfied the Applicant has a disability that is attributable to a physical impairment and paragraph 24(1)(a) of the Act is met.
The Applicant’s impairments to which a psychosocial disability is attributable
The Applicant has claimed that she was bullied at work in 2000 and then in 2013 was the victim of occupational violence in the workplace.[34] In 2018 she was assessed by Dr Moisey for a second opinion and ongoing management. Dr Moisey reported her preliminary diagnosis as GAD, major depression and PTSD. She formed the view it was imperative the Applicant develop a therapeutic relationship and undertake medication trials. Dr Moisey noted however that the Applicant had chosen to continue to be cared for by her general practitioner at the time, Dr Schofield, because of her financial circumstances.[35]
[34] Ibid, p 7.
[35] EB, T5, Report of Dr Suraiya Moisey dated 10 August 2018, p 151.
In October 2019 Dr Wall reported the Applicant has anxiety which is permanent and will never improve. Dr Wall provided a letter dated 2 March 2021 reporting the Applicant has anxiety for which she self-monitors and does CBT. The Tribunal did not hear from Dr Wall. It notes that it was drawn to the Applicant’s attention that it may be helpful to hear from her.
The issue of the weight that can be given to Dr Wall’s evidence was raised by the Respondent when it noted that Dr Wall gave three different opinions about the Applicant’s functional capacity. The Respondent submitted that less weight should be given to Dr Wall’s evidence than that of Dr Ashkar, who was available to give oral evidence at the hearing. The Applicant’s reason for not asking Dr Wall to appear before the Tribunal was that she could not afford it, however she indicated that she had not approached Dr Wall about her fee for appearing before the Tribunal.
The Applicant, at the Respondent’s request, was assessed by Dr Ashkar in February 2022. He provided a report in which he opined there was no evidence that the Applicant was experiencing anxiety or mood disturbance.[36] The Applicant disagreed with this conclusion. Her complaint to the HCCC was discussed at the hearing. The Applicant drew to Dr Ashkar’s attention that a psychiatrist had assessed her (in 2018) and diagnosed PTSD. Dr Ashkar confirmed he read Dr Moisey’s report but explained the weight he gave it was “a function of the time since that assessment was conducted and that report was written, which by my calculations is approximately four years. I considered the report as context and history but I didn’t place a huge amount of weight on the diagnoses that were made at that time given the four years that had transpired since that report had been written.”[37]
[36] EB, B2, Report of Dr Peter Ashkar dated 28 February 2022, pp 25 – 34.
[37] Transcript, p 66.
The Applicant questioned Dr Ashkar regarding Dr Moisey’s diagnoses “are you suggesting that they get better…those diagnoses?”.[38] Dr Ashkar explained that he would remain open to that possibility, if treated appropriately, that the symptoms can improve over time but he also noted the conditions can become aggravated and get worse.
[38] Ibid.
The Applicant asked Dr Ashkar about the methods he used to conclude that she did not show any evidence of anxiety, mood disturbance, major depression or PTSD. Dr Ashkar stated “the substance of my opinions was quite limited by the very fact that I was unable to administer the test that I needed to administer to assess your mental state at the time of the assessment. So my observations and opinions were based, unfortunately, were quite limited in that they were based purely on your presentation at the time that I spoke with you and met with you and assessed you. I was unable to do the psychometric testing that I - that I had hoped to do with you to get a better understanding of the number, type and severity of your symptoms because you chose to not engage in that part of the assessment.”[39] He explained that he prefers to administer the Minnesota Multiphasic Personality Inventory (the MMPI) as in his view it is the “gold standard of clinical and personality assessment that allows psychologists to, in fact, measure the number, type and severity of an individual’s symptoms across a wide range of psychological and psychiatric conditions and also personality types…”.[40]
[39] Ibid, p 67.
[40] Ibid.
The Applicant asked Dr Ashkar about the assessment he claimed she refused to complete. Dr Ashkar stated the Applicant chose not to complete the Adaptive Behaviour Assessment System (the ABAS), a questionnaire that helps to understand the impact of psychiatric, emotional or psychological conditions on a person. He stated it provides information about how a person copes day to day. Dr Ashkar admitted that the Applicant did not refuse to complete the ABAS, and stated “only today I had a look at our history of email correspondence where you indicated that some of the questions you did not consider relevant and would not be completing on the questionnaire and in the absence of full completion of questionnaire I’m not able to use it and I indicated that to you during our correspondence because the questionnaire was incomplete. Even though you had partially completed it, I was unable to collect data from it because it hadn’t been completed in full by you.”[41]
[41] Ibid, p 68.
The Applicant stated she did complete the ABAS.[42] She drew the distinction between refusing to complete an assessment and partially completing it. She stated she found some questions “absolutely irrelevant”.[43]
[42] Ibid.
[43] Ibid.
The Applicant also disputed Dr Ashkar’s conclusion that she could not have PTSD because she did not fear for her life. Dr Ashkar stated “the question I asked about fear for safety was a diagnostic question to help me establish whether or not the diagnosis of post-traumatic stress order may be a valid diagnosis. Now, in order for a diagnosis of post-traumatic stress disorder to be made, there are several hurdles that need to be met, or several arms of the diagnosis that need to be established, in order to support the diagnosis. The first one being, experiencing a traumatic event during which the individual feared for their safety or their life...the question was placed in the context of the diagnosis that had been made of post-traumatic stress disorder as a consequence of Ms Clarke’s experiences of bullying at work… I asked Ms Clarke very specifically if during the course of her work at the centre, and experiences of bullying, if she had ever feared for her safety and she replied unequivocally no.”[44] Dr Ashkar then concluded the diagnosis of PTSD could not be valid.
[44] Ibid, p 71.
Dr Ashkar explained that psychometric tests, or questionnaires, are one source of information on psychiatric functioning and to inform diagnostic opinion. However it is rare that one would ever make a diagnosis based on the administration and completion of the questionnaire alone. Clinical history and understanding the circumstances surrounding the subject event and an understanding of corroborating information such as a person’s capacity to sustain attention, concentration and memory are also relevant. Dr Ashkar stated he was not able to administer psychometric tests or questionnaires that might help to inform his opinion as to whether the Applicant may, in fact, have been struggling or living with symptoms of PTSD because she did not complete the questionnaire that would help him to make that determination.[45]
[45] Ibid, p 72.
The Applicant questioned the use of the MMPI as her issue is mental health, not personality. Dr Ashkar explained that it has a post traumatic checklist and a trauma questionnaire. However he was limited in the test he could administer, because the Applicant chose not to complete the primary psychometric test which he needed to assist him to form his diagnosis. He said he normally administers “this broad taste test, the MMPI that I just describe, and use the results of that test to inform whether or not I need to do any follow-up testing with other tests.”[46]
[46] Ibid, p 73.
The Applicant questioned Dr Ashkar about his report that she experienced her last panic attack in September 2012. The Respondent noted the report states that “Ms Clarke told me…”. The Applicant denied that she told Dr Ashkar that her last panic attack was in September 2012. She stated that Dr Ashkar had not listened correctly, or he misunderstood her answers. She also questioned how Dr Ashkar formed his view about her behaviour and her having no indications of anxiety when he could only see her face on the screen. She also submitted that she expressed to him how anxiety provoking a last minute change of interview mode was for her. She noted this was not included in his report. The Applicant claimed to have had a severe anxiety attack, or panic attack, following the completion of her discussion with Dr Ashkar.[47]
[47] Ibid, p 80.
A challenge for the Tribunal in this case is that the Applicant’s own material is dated. Dr Wall’s most recent evidence is dated March 2021 and does not provide detail. There were delays in hearing the matter, a consequence of requests from both parties for postponements. For example case conferences were delayed at the Respondent’s request and the hearing was adjourned in November 2023 because the Applicant had a medical appointment on the second day and, because of the time of year, it could not be reconvened until January 2024. There were also delays within the Tribunal.
The Tribunal raised with the Applicant the benefits of hearing from Dr Wall and invited her to arrange for Dr Wall to give evidence in January 2024. The Applicant indicated she could not afford it. While the Tribunal accepts that it is the case that some applicants cannot afford for their witnesses to appear before the Tribunal, the Applicant’s oral evidence indicates she did not ask Dr Wall about her fee. It is often the case that a treating doctor will appear at the Tribunal without charging the applicant. It appears from the Applicant’s evidence that she did not ask Dr Wall to give oral evidence.
The Applicant’s medical evidence about her impairments is dated and raises questions about whether those treating professionals would continue to hold the same views with respect to the Applicant’s impairments to which a psychosocial disability is attributable. The most recent evidence before the Tribunal is that of Dr Ashkar, who concluded there was no evidence of clinically significant anxiety or mood disturbance warranting disability support. However he acknowledged his psychometric assessment of the Applicant’s emotional/ psychiatric and personality functioning had not been completed and this might have impacted his view. While the Tribunal accepts the Applicant believed Dr Ashkar was not listening to her during the assessment, as the HCCC pointed out, Dr Ashkar is entitled to his own professional opinion. In any event it is only one aspect of the evidence for the Tribunal to consider.
The Applicant’s own oral evidence is that the symptoms of her chronic pain include a decrease in self-esteem, weight gain, avoidance of crowds, anxiety, stress, depressed mood, social withdrawal, isolation, relationship problems, sleep difficulties, adverse experiences with medications, concentration and memory difficulties, loss of interest or inability to engage in previously enjoyed activities, anger and decreased libido. She stated “[w]hen you’re in constant pain, it affects your mental health.” She agreed however that she manages her anxiety through self-management.
The Tribunal accepts the Applicant has had a history of anxiety and depression, and that Dr Moisey in 2018 made preliminary diagnoses of GAD, major depression and PTSD, related to work-related trauma. The Tribunal notes in her reports written after 2018 Dr Wall did not record that the Applicant has PTSD. The Tribunal also notes that at the hearing when asked about her psychosocial impairments, the Applicant stated “there’s a bit of post-traumatic stress there as well”.[48] This suggests to the Tribunal that the symptoms of PTSD the Applicant had previously experienced have reduced since 2018.
[48] Ibid, p 6.
Considered overall, on the basis of the evidence before the Tribunal, including the Applicant’s and Mr Clarke’s evidence, the Tribunal is satisfied that the Applicant has anxiety and depression that impact her wellbeing, relationships and community engagement. For the purposes of paragraph 24(1)(a), it is satisfied the Applicant has impairments to which a psychosocial disability is attributable.
The Tribunal is satisfied paragraph 24(1)(a) of the Act is met.
Is the impairment permanent, or likely to be, permanent?
In considering whether the Applicant’s impairments are permanent, the Tribunal 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).
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.
Paragraph 24(1)(b) of the Act requires the Tribunal to be satisfied that the impairment is permanent, not the 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. [49]
[49] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), [86].
In other words, a person can have a permanent 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.
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.
Her Honour in Davis found the word “known” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s 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.[50]
The Applicant’s physical impairment
[50] Davis, [136] – [137].
The Respondent has argued in the SFIC2 and SFIC3 that Dr Richmond’s opinion indicates further treatment would, or would likely, improve the Applicant’s impairment. In her report, Dr Richmond confirmed that the Applicant’s osteoarthritis is a degenerative condition, that will continue to deteriorate with or without treatment. However she noted the Applicant has had “limited physiotherapy”, that she “has not tried interventional pain procedures”, that she “would benefit from further physiotherapy treatments to improve strength, function and assist with pain management” and she “may also benefit from nerve blocks and pulsed radiofrequency to her nerves that supply the knee joint”.[51] The Respondent referred to Rule 5.7 of the Access Rules and submitted that the further treatments recommended by Dr Richmond are treatments that are known and appropriate.
[51] EB, B1, Report of Dr Trudi Richmond dated 4 June 2021, p 19.
Mr Stretton noted that Dr Wall has reported treatments for the Applicant’s physical impairment as analgesia, CBT, home-based physiotherapy, massage, anti-inflammatories, monitoring of diet, blood and radiographic changes and had formed the view there are no other treatments that are likely to remedy the Applicant’s impairments. He reported that, after bilateral knee surgery, the Applicant received physiotherapy at various times, most recently, after Dr Richmond’s assessment, five months before his assessment under a chronic disease management plan. He noted that treatment consists of manual therapy and exercise prescription. The Applicant also takes Panadol Osteo and Panadeine Forte when the pain is severe, uses deep heat and attends aqua aerobics. She has also tried medicinal cannabis. Mr Stretton concluded her impairments are permanent.
In SFIC3 the Respondent addressed Mr Stretton’s opinion that the Applicant has permanent impairments attributable to osteoarthritis, and his recommendation against further treatment options. It submitted that the Tribunal ought to prefer the professional opinion of Dr Richmond, and accept Dr Richmond’s recommendations as to the further treatment’s available to the Applicant. It also referred to the Applicant’s statement, as reported by Mr Stretton, that should she receive NDIS funding, she “anticipated accessing capacity building supports such as physiotherapy and massage”, supports Dr Richmond’s opinion.
The Tribunal raised with the Applicant at the hearing that it would benefit from hearing current evidence about any treatment she had received, by hearing from Dr Wall, however the Applicant did not pursue that possibility.
While the medical evidence from the Applicant’s treating doctors about treatment for her physical impairment is dated, the Tribunal is satisfied it can rely on Mr Stretton’s report about the ongoing treatment the Applicant is receiving.
The Tribunal notes the Applicant has had the physical impairment for over 10 years. She has ongoing treatment for the impairment as demonstrated by the physiotherapy she receives under a chronic disease management plan. She takes medication as required to manage the pain. Having considered Dr Richmond’s view that there might be other treatments available such as nerve blocks and pulsed radiofrequency to her nerves, the Tribunal also notes her conclusion that the Applicant’s osteoarthritis is degenerative, and the condition will continue to deteriorate with or without treatment.
With respect to Rule 5.7, while the Applicant’s pain might improve with nerve treatment, the Tribunal is not satisfied this will result in her osteoarthritis condition improving. It accepts that further physiotherapy treatment might improve strength and function, but it is not satisfied her osteoarthritis condition will be improved. Again, on Dr Richmond’s evidence, the condition is degenerative and will deteriorate with or without treatment.

In applying the law as set out in Davis, the Tribunal is not satisfied the treatments suggested by Dr Richmond have the capacity to remedy, or to approach a removal or cure of the impairment. The Tribunal has concluded those other treatments were suggested by Dr Richmond as they may help manage the pain and improve function. However her opinion is that the condition is degenerative and will deteriorate with or without treatment. There is no suggestion in her report that the suggested treatments will achieve a “remedy” as it is described by Her Honour in Davis.
Accordingly, the Tribunal is satisfied the Applicant’s physical impairment is permanent and paragraph 24(1)(b) is met.
The Applicant’s psychosocial impairment
In March 2021 Dr Wall reported that the Applicant has anxiety for which she has had psychological intervention, CBT and anti-depressant medication which she ceased because of weight gain. She reported that the Applicant was doing CBT and self monitoring as she is a psychologist herself. Dr Wall indicated the condition fluctuates and needs full-time management. She opined there were no alternative treatments.
The only other opinion from a treating professional regarding the Applicant’s psychosocial impairment is from Dr Moisey who in 2018 made a preliminary diagnosis of GAD, major depression and PTSD. She concluded it was imperative the Applicant develop a therapeutic relationship and medication trials. There is no evidence before the Tribunal that the Applicant developed a therapeutic relationship, with Dr Moisey or any other psychiatrist or psychologist. In fact, the evidence suggests that, contrary to Dr Moisey’s opinion, in the main, the Applicant has been managing her psychosocial impairment herself. While the Tribunal accepts the Applicant has taken at least one anti-depressant, the evidence regarding medication trials is scant.
In SFIC3 the Respondent has relied on Dr Ashkar’s report to submit that, as there is no indication of anxiety or mood disturbance in the Applicant’s presentation, permanence of a psychosocial impairment cannot be established. The Applicant has disputed Dr Ashkar’s conclusions and complained about the manner in which he conducted the assessment, and that his report is incorrect. The Tribunal notes Dr Ashkar’s oral evidence that he could not complete the assessment as he wished to. While the Applicant has raised concerns about Dr Ashkar’s conclusion that there were no indications of anxiety, trauma related or otherwise, or mood disturbance, shortcomings in Dr Ashkar’s report and his conclusion do not necessarily result in the Tribunal reaching conclusions contrary to his.
The Tribunal must apply Rule 5.6 which, for it to find the impairment is permanent, requires it to be satisfied the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated.
The Tribunal has taken into account Dr Wall’s view that the Applicant’s anxiety will never go away and there are no alternative treatments, however it is not satisfied this is sufficient evidence for it to be satisfied the impairment is permanent. The Tribunal notes Dr Wall in her latest report, did not address depression or PTSD symptoms. It also notes her view, with no explanation, is somewhat different to that of Dr Moisey, a specialist who considered it imperative that the Applicant engage in a therapeutic relationship.
The Applicant’s own oral evidence that there is “a bit of” PTSD, suggests that condition has changed since Dr Moisey formed her preliminary view that the Applicant had PTSD. The Tribunal is also mindful that that was Dr Moisey’s preliminary diagnosis after an assessment by her, not after sessions of therapeutic engagement.
The Tribunal takes into account the Applicant’s view that she is able to manage her own condition because she is a psychologist. While it recognises her qualification and work experience, it is not persuaded on the evidence before it that the Applicant does not require further treatment, or engagement with another treating professional, as recommended by Dr Moisey, for her psychosocial impairment.
The Tribunal is not satisfied that it has sufficient evidence before it that the Applicant’s psychosocial impairment does not require further treatment or review in order for its permanency or likely permanency to be demonstrated. Considered overall, in applying the relevant Access Rules, the Tribunal is not satisfied on the evidence before it that the Applicant’s psychosocial impairment is, or is likely to be, permanent. Accordingly the Tribunal is not satisfied the Applicant’s psychosocial impairment is permanent.
Does the Applicant’s physical impairment result in substantially reduced functional capacity to undertake one or more of the specified activities?
Paragraph 24(1)(c) of the Act requires that the Applicant’s impairment or impairments result in substantially reduced functional capacity to undertake one or more of the six domains.
Rule 5.8 of the Access Rules sets out the matters the Tribunal must consider when determining whether the Applicant’s impairment results in substantially reduced functional capacity and states as follows:
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.
The Operational Guideline states:
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the (specified) tasks.
These disability-specific supports include:
·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
As the Tribunal is not satisfied the Applicant’s psychosocial impairment is permanent, as it is not satisfied any anxiety, depression or any PTSD she might suffer have been fully treated, it does not take these impairments into account when considering whether she has a substantially reduced functional capacity in the any of the six domains.
Communication
The Operational Guideline with respect to communication currently states as follows:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
Dr Wall in May and July 2020 stated the Applicant does not need assistance with communicating.
Mr Stretton commented that in February 2023 the Applicant was candid and appeared genuine in her responses to his questions. She made good eye contact and her spoken word was clear and eloquent. She told him that her presentation on the day was typical of an average day. With respect to the communication domain, Mr Stretton reported the Applicant was observed to understand questions and respond appropriately, make appropriate eye contact and use a variety of expression in her spoken word and used hand gestures. He noted she completed the written standardised assessment correctly at the time of assessment. He noted the Applicant reported no issues with expressive or receptive communication and that she can verbally communicate with others independently in person or by telephone. He noted she was able to manage the requirements of these AAT proceedings and communicate by email.
With respect to this domain Dr Ashkar observed the Applicant corroborated much of the information detailed in the documentation he had been provided for the purpose of his assessment. Dr Ashkar reported that the Applicant was able to discuss with him the history of her impairments, treatments she had received and her current symptoms and concerns. The Tribunal also notes the Applicant was able to participate in the hearing process, including by asking Dr Ashkar questions which were relevant and coherent. The Applicant has also provided written material prepared by her, including her SOLE.
In her SOLE the Applicant has stated that her anxiety affects her capacity to communicate as the major symptoms are memory problems, difficulty putting sentences together, difficulty finding the right word, palpitations, concentration problems, light headedness, nausea and sleep disturbance. As the Tribunal is not satisfied the Applicant’s psychosocial impairment has been fully treated, it does not take this into account when considering whether she has a substantially reduced functional capacity in the domain of communication because of any permanent impairment.
The Tribunal is satisfied that the Applicant can participate in communication related activities independently as indicated by Dr Wall, reported by Mr Stretton and demonstrated in her own written and oral evidence. It is not satisfied her physical impairment prevents her performing tasks or actions required to undertake or participate effectively or completely in communication activities, without assistive technology or equipment. It is not satisfied that any of the circumstances in Rule 5.8 are met in her case, with respect to communication.
Having considered the Operational Guideline, the Tribunal is satisfied the Applicant is able to speak and write to express herself, and that she is able to understand people, and be understood.
Overall, the Tribunal is satisfied the Applicant is able to participate effectively and completely in communicating. Accordingly, it is not satisfied the Applicant has a substantially reduced functional capacity to undertake communication activities.
Social interaction
The Operational Guideline with respect to social interaction currently states as follows:
Socialising - how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
Dr Wall reported in May and July 2020 that the Applicant does not need assistance with social interaction.
In her SOLE the Applicant stated that prior to her anxiety diagnosis she found it easy to make friends but, since the diagnosis, her anxiety prevents her engaging with people she does not know. Her friends do not live close by so she does not catch up with them as often as she would like. On good days she has coffee with her neighbour. She submitted that she worries about going to new places in case she has a panic attack. Her mental health condition has impacted on her intimate relationship with her husband.
In her oral evidence, the Applicant stated she is unable to catch up with her friends face to face due to her disability and the symptoms of chronic pain include social withdrawal and relationship problems. She stated she does not socialise anymore. However she confirmed that she keeps in contact with her friends by telephone, she occasionally socialises with a neighbour who will sometimes pop in to make sure she is okay. She has face to face communication with them. She uses email independently. She has no issues with receptive or expressive communication but at times there might be conflictual communication. When it was put to her that she could socially interact with friends, albeit by phone, she argued that is not the best way for communication. She indicated she has lost friends because she cannot go out to visit them because of her disability.
Mr Stretton reported that he observed the Applicant’s ability to engage in reciprocal social conversation and interact appropriately with him. He observed behaviour within socially acceptable limits. He also reported that the Applicant had stated to him that she keeps in contact with friends, mainly via telephone, and socialises occasionally with neighbours. She reported that she limits her social interaction as she has reduced interest and worries about experiencing panic symptoms. She does not attend any social groups or regular scheduled social engagements. However she attends aqua aerobics once per week, independently. Mr Stretton reported that the Applicant does not have any behavioural issues and does not require assistance to interact in social situations. She also reported to him that she has good, supportive relationships with her immediate family members.
Dr Ashkar observed that the Applicant was able to participate in the assessment, her behaviour was calm and suitably controlled. There was no evidence of inappropriate anger. She was alert and appropriately oriented to self, time and place. While the Applicant raised concerns at the hearing that Dr Ashkar’s assessment was not accurate, she has not disputed that she was able to interact with him appropriately.
Mr Clarke submitted that the Applicant’s mood can change, hourly at times, and changes in her mental and physical health have impacted their grandchildren wanting to sleep over for the weekends. He stated that he finds it hard to tolerate her mood changes and it has impacted their relationship and daily life experience.
The Tribunal accepts that the Applicant’s physical impairment may impact her mood and relationships. It accepts that she does not travel to visit friends and this has impacted some of her friendships. However it is satisfied she is able to independently interact socially, face to face and by phone. The Tribunal notes she continues to engage in an activity in the community, aqua aerobics, despite her physical impairment, and it is satisfied there would be some degree of social interaction involved in that activity. It has taken into account her evidence that her anxiety prevents her engaging with people she does not know, and she worries about going to new places in case she has a panic attack. However it is not satisfied this is because of her permanent physical impairment.
Considered overall the Tribunal is not satisfied the Applicant’s physical impairment prevents her from participating in social activities, or performing tasks or actions required to undertake or participate in social activity, without assistive technology, equipment, home modifications or the assistance of others. It is not satisfied she requires the assistance of others to interact socially. The Tribunal is of the view the circumstances in Rule 5.8 are not met with respect to this domain.
In considering the Operational Guideline the Tribunal is satisfied the Applicant is able to make and keep friends, as demonstrated by her ongoing phone contact with friends and engagements with her neighbour. She interacts with the community when she attends aqua aerobics. The evidence from Dr Ashkar and Mr Stretton, and her engagement in the hearing process, indicate she is appropriate and copes with her feelings and emotions in social situations. While the Tribunal accepts her mood changes might impact her personal relationships, it notes she continues to live with her husband and to have ongoing contact with her children and grandchildren.
Considered overall, while the Tribunal accepts the Applicant’s social life has been affected by her physical impairment, it is not satisfied the Applicant has a substantially reduced functional capacity to undertake social interaction.
Learning
The Operational Guideline with respect to learning currently states as follows:
Learning – how you learn, understand and remember new things, and practise and use new skills.
Dr Wall reported in May and July 2020 that the Applicant does not need assistance with learning.
In her SOLE the Applicant set out her qualifications as a psychologist and the events leading to her ceasing work as a psychologist. She stated that after enduring workplace bullying, she could not undertake psychological testing or take on clients who needed reports as she found this too anxiety provoking. The only psychological work she could do was counselling and even then she had difficulty staying on track which she found embarrassing. She stated she was not able to train in groups due to anxiety and worry that she would have a panic attack or struggle with memory or putting sentences together. She stated she found it difficult to learn new things due to concentration problems and memory issues.
Mr Stretton reported that the Applicant holds a Bachelor of Psychology and a Clinical Master in Adolescent Mental Health and worked as a registered psychologist since completing her studies. She retired in 2020 or 2021 due to declining mobility and mental health issues which adversely affected her ability to perform the duties of her role. While the Applicant reported that her cognition has been adversely affected by anxiety, and that she had difficulty learning new things from a professional development perspective due to poor memory and concentration, Mr Stretton observed that the Applicant engaged and concentrated for the two hour duration of the assessment. She was able to recall past events clearly and accurately. He noted she does not receive any assistance for day to day functional tasks. In his view she did not display any obvious impairment to her cognition or ability to learn new information.
Dr Ashkar reported that the Applicant’s performance on tests administered were satisfactory. At the hearing the Applicant raised with Dr Ashkar an apparent anomaly in his report, where he recorded “she was expected to perform at the lower end of ‘average’ range based on her education and vocational history and performance on a word reading test, and she did for the most part”.[52] When this apparent anomaly was put to him, given her qualifications, Dr Ashkar indicated that when attempting to measure cognitive functioning in response to a particular event, it is important to see if there has been any decline from a normal level of preinjury or premorbid functioning. He explained a person’s education, their history and word reading is a very strong predictor of a person’s intelligence. He also indicated “language is very resistant to insults and psychiatric pathologies.”
[52] Transcript, p 75.
In the Tribunal’s view, Dr Ashkar’s clarification does not appear to explain why someone with tertiary qualifications would be expected to perform at the lower end of average. The Tribunal agrees with the Applicant that this was incorrect. It notes that Dr Ashkar reported that the Applicant’s performance on a test of verbal learning and memory was in the low average to average range and her results on visual learning and memory were in the high average range. This was not disputed. Dr Ashkar also recorded that the Applicant’s higher level executive skills appeared to be intact on learning and memory tasks. This was also not disputed and, in the Tribunal’s view, is consistent with Dr Wall’s opinion, Mr Stretton’s observations and the Applicant’s engagement at the hearing.
There is no other evidence that the Applicant has undergone cognitive assessments demonstrating she has cognitive impairment, memory loss or a learning disability.
The Tribunal notes the Applicant scored a low average on verbal learning and memory. While it may suggest the Applicant’s capacity has diminished since she completed her tertiary qualifications, it is not indicative of a substantially reduced functional capacity. On the evidence before the Tribunal, it is not satisfied the Applicant meets any of the circumstances set out in Rule 5.8 with respect to the activity of learning.

Considered overall the Tribunal is not satisfied the evidence supports the assertion that the Applicant’s physical impairment impacts, in any substantial way, her functional capacity to learn. Overall, the Tribunal is not satisfied the Applicant has a substantially reduced functional capacity to undertake learning activities.
Mobility
The Operational Guideline with respect to mobility currently states as follows:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
In May 2020 when completing the Access Request form Dr Wall formed the view that the Applicant did not require assistance in the mobility domain.[53] Two months later, she changed her view and reported that the Applicant required home modifications, rails and taps, due to her mobility impairment.
[53] EB, T9, Access request dated 28 May 2020, p 166.
In July 2015 Dr O’Keefe observed the Applicant had an abnormal gait and she reported that she was having difficulty with stairs.
In her SOLE, with respect to mobility, the Applicant stated she can no longer engage in outdoor activities which she previously enjoyed, such as water-skiing and bushwalking. Walking on uneven ground increases her pain and swelling. She can go camping but walking is restricted to exploring the area. She cannot kneel. Traversing stairs and walking long distances impact pain and swelling. Prolonged sitting results in extreme stiffness. On a good day she can do limited basic tasks around the house. She can no longer garden or complete household cleaning tasks. She cannot climb a ladder to clean windows. She needs support to use public transport. She cannot pick up a coffee cup with one hand, squeeze out a cloth, make the bed, turn the mattress, pick up her grandchildren or do crafts.
In her oral evidence the Applicant added that she needs assistance to chop certain food and carry shopping. She cannot knit or crochet or access low areas as she cannot kneel.
The Applicant confirmed that she mobilises in and outside her home without the use of a walking aid, although sometimes she uses a walking aid outside. She walks her dog around the local area when her knee is good but some days she cannot walk around the block because her knee is swollen. She said it would take her less than two minutes to walk around the block. It was raised with her that Mr Stretton had recorded that she reported her block was around 800 metres and that she walks her dog up to two times around the block. (This was in fact a misinterpretation of Mr Stretton’s report. He reported that going around the block twice amounted to about 800 metres.) The Applicant did not know whether she mentioned a distance to Mr Stretton and suggested he would have come up with that figure but she agreed she sometimes walks around the block twice.[54]
[54] Transcript, p 22.
The Applicant confirmed she can transfer on and off the toilet, her bed, in and out of her car, and in and out of the shower. She relies on a vanity to transfer off the toilet. She can manage some flights of stairs but it depends on how steep or wide the stairs are. She has an aid for getting up and down the stairs. She drives her automatic car. She uses a walking stick at times depending on her level of pain and swelling and this assists with her mobility. She does not use a wheeled walker.[55]
[55] Ibid, p 23.
The Applicant told the Tribunal that she believes her mobility reduces her capacity to participate in ordinary, everyday activities because she cannot do her hobbies such as bushwalking and water-skiing, walk long distances, visit her friends who live an hour and a half and two hours away. Her housekeeping standards have reduced to only what she can do because of knee and back pain. She does the house when she can but does significantly less than what she used to. She confirmed she vacuums and mops her floors when she can but sometimes she cannot do these activities. She cannot reach lower areas such as skirting boards. She does the washing and hangs out the clothes. She does most of the cooking. She goes shopping with the husband once a fortnight. He helps her but his health had deteriorated. Her children help her with ordering shopping online if they are at her house.[56]
[56] Ibid, pp 23 – 26.
Mr Clarke told the Tribunal that he helps with the housework, such as vacuuming and carpet sweeping, when the Applicant cannot reach lower areas. He does not help as much now because of his own medical conditions. However they still shop together once a fortnight and their children help with ordering groceries online. He confirmed the Applicant does most of the cooking while he cooks meat on the barbeque.[57]
[57] Ibid, p 42.
Mr Stretton reported that he observed the Applicant mobilise inside the home, safely and independently without the use of a walking aid. He observed an altered gait due to slight flexion deformity in right knee. However she was able to negotiate one step to her covered entertaining area, safely and independently. He observed her transfer on and off the couch using armrests, safely and independently.
Mr Stretton recorded that the Applicant reported the following. She mobilises inside and outside her home independently without the use of a walking aid. She transfers in and out of her shower, bed and motor vehicle and on and off her toilet without assistance. She walks her dog around the local area, a maximum of twice around her block (a distance of 800 metres for twice around). She is able to manage a flight of stairs only with a handrail and a modified technique. She has a driver licence and is able to drive a motor vehicle. She does not take public transport.
At the hearing Mr Stretton stated “I wouldn’t think that you would be capable of accessing low - you know, getting on your hands and knees to scrub a shower floor, or something like that.”[58]
[58] Ibid, p 56.
Having considered all the evidence regarding the Applicant’s mobility, the Tribunal is satisfied the Applicant can walk up to 800 metres, on even ground. Occasionally she uses a walking aid. It is satisfied she can traverse a flight of steps using a handrail. It is satisfied the Applicant can transfer on and off the toilet, leaning on the vanity, and the couch, using the armrests. It is satisfied she can transfer in and out of the shower. The Tribunal is also satisfied the Applicant can mobilise around her home independently. It is also satisfied she can drive her car. The Tribunal is also satisfied the Applicant participates in aqua aerobics.
Mr Clarke stated that the Applicant used to be able to participate in a lot of activities such as surfing, swimming, bushwalking and water-skiing but she can no longer partake in these activities.
The Tribunal accepts the Applicant cannot kneel. It also accepts she cannot participate in activities such as heavier housework, climbing ladders, water-skiing, or bushwalking on uneven ground. However the Tribunal is not satisfied that such challenging activities are the benchmark with respect to the application of Rule 5.8. It is of the view that it is appropriate to consider basic activities required for daily living such as walking, transferring and traversing stairs.
In considering Rule 5.8, the Tribunal must apply the test set out in Foster, in which the Full Federal Court determined that the Tribunal is to reach a conclusion as to whether the Applicant has a substantially reduced capacity to undertake the activity “by assessing his [or her] functional capacity with respect to the bundle of tasks and actions forming the concept of (the activity).”[59] As such, the activity to be assessed is mobility as a whole, not a specific task or action within mobility.
[59] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), [65].
Taking into account the Court’s guidance in Foster, when considering whether the Applicant can complete mobility activities required for daily living, the Tribunal accepts there are some limitations on her capacity to mobilise with respect to kneeling and reaching lower areas such as skirting boards, and that she makes some modifications such as using the vanity and armrests to transfer from sitting to standing, and holds on to a handrail when traversing stairs. However the Tribunal is not satisfied the Applicant’s impairments result in her being unable to participate effectively or completely in mobilising, or to perform tasks or actions required to undertake or participate effectively or completely in mobilising, without assistive technology, equipment (other than commonly used items such as a walking stick) or home modifications.
Considered overall, the Tribunal is not satisfied any of the circumstances in Rule 5.8 apply in the Applicant’s case.
The Tribunal has considered whether the Applicant has a substantially reduced functional capacity in relation to the mobilising activities set out in the Operational Guideline. The Tribunal is satisfied the Applicant can move around her home and community safely and independently. It is satisfied she can transfer in and out of bed and a chair. In considering how she gets out and about and uses her arms or legs, it accepts the Applicant walks with an altered gait, however she can walk up to 800 metres. It accepts that she has osteoarthritis which affects her wrists and impacts on her capacity to hold a cup one handed and do craft but it is not satisfied her impairment prevents her using her arms to drive, eat and drink, to transfer in and out of chairs and bed, and to undertake basic activities around her home, such as basic housework and cooking.
Considered overall, the Tribunal is not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to mobility.
Self-care
The Operational Guideline with respect to self-care currently states as follows:
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
Dr Wall reported in May and July 2020 that the Applicant does not need assistance with self-care.
In her SOLE the Applicant indicated that she manages her own personal hygiene but her anxiety interferes with decision making such as when to shower. She stated that if she is having a bad day, she is unable to prepare her own meals.
In her oral evidence the Applicant stated she needs the assistance of another person for cleaning, particularly when she has to bend, and she cannot kneel to access low areas. She also needs assistance with chopping certain foods for a significant period and carrying shopping bags. She has trouble squeezing out a cloth. She cannot make her bed or turn her mattress.[60]
[60] Transcript, p 17.
At the hearing the Applicant confirmed the following. She can transfer independently in and out of the shower, and on and off the toilet. With respect to housework, her standards are not like they used to be but she does the house cleaning when she can. She does vacuuming and mopping but sometimes she cannot do them. She can do the laundry on good days. She does the grocery shopping with her husband once a fortnight. She does most of the cooking and her husband barbeques the meat. She and her husband pay for the lawn to be mowed. Except for difficulties with drying her hair, she is independent in all self-care activities. She can dress and shower herself. She manages her medication regime when she takes medications. She makes and attends her own medical appointments. She agreed that her self-care is not impaired.
Mr Clarke stated that the Applicant used to be meticulous with regard to housekeeping but she now finds it a chore.
Mr Stretton recorded that the Applicant was observed to possess the physical capacity and range of motion to attend to all her own personal care tasks independently. She reported to him independence in all self-care activities, with some difficulty with drying her hair. She stands to shower and there is a vertical grabrail in the shower recess to aid stability. She sits to dress her lower body. She manages her own medication regime including monitoring and replenishing prescriptions.
Mr Stretton also reported that, in his view, the Applicant has the physical capacity to manage household chores such as cleaning, cooking and laundry with some assistance, modification and pacing techniques. He observed the home to be very clean, tidy and well ordered. On his physical assessment he noted the Applicant was unable to squat or crouch sufficiently to access low areas, such as skirting boards and the lower rows of tiles in the shower recess.
Mr Stretton recorded that the Applicant reported the following. She used to be fastidious but she has let her standards drop. When she performs cleaning activities, her knee and back ache from prolonged standing and bending. She cleans on days when she can rest for the remainder of the day. She vacuums the floor as she is able to remain upright but her husband assists her with vacuuming and he assists with cleaning the shower recess and other areas she finds it hard to access. She can mop the floor as she can remain upright. Her husband assists by carrying a bucket of water. She can use the washing machine and hang washing on the clothesline. She and her husband do the grocery shopping together once a fortnight. She can ambulate around the supermarket. Her husband lifts items she is not capable of lifting. She does most of the cooking each day. Her husband cooks meat on the barbecue. She can make and attend her own appointments. The Applicant has a commercial arrangement in place for lawn care.
Having considered all the evidence before it in relation to the Applicant’s capacity to perform self-care tasks, the Tribunal is satisfied the Applicant is able to transfer to and from the toilet independently and complete toileting without assistance. It is satisfied the Applicant showers independently but might use a vertical grab rail if needed. It accepts she has difficulty drying her hair but is otherwise independent in self-care activities. There is no evidence before the Tribunal to indicate she requires the assistance of another person to complete self-care tasks of toileting and showering.
With respect to meal preparation, the Tribunal has taken into account the Applicant’s evidence that she needs assistance with chopping certain foods for a significant period, but it notes that, in the main, she does most of the cooking. The Tribunal is satisfied the Applicant can purchase groceries, either by shopping once a fortnight with her husband, or online with the assistance of her children. The Tribunal is satisfied the Applicant can, at times, do some housework, including vacuuming and mopping but needs assistance with accessing low areas because she cannot kneel. The Tribunal is also satisfied the Applicant has arranged for someone to mow the lawn.
Overall the Tribunal accepts the Applicant may have to adopt modified techniques to complete some self-care tasks, such as leaning on the vanity to transfer off the toilet and using a vertical grab rail in the bathroom. It accepts there are some more challenging self-care tasks that she struggles with, such as chopping certain foods for a significant period, making the bed and turning the mattress. However, the Tribunal must apply the approach set out in Foster by assessing the Applicant’s functional capacity with respect to the bundle of tasks and actions forming the concept of self-care. As such, the activity to be assessed is self-care as a whole, and not a specific task or action within self-care, such as chopping certain foods for a significant period, kneeling to access lower areas, turning the mattress and hair drying.
In considering Rule 5.8 the Tribunal is satisfied the Applicant is able to perform and complete tasks and actions required for self-care. It is also of the view the Applicant is usually independent and does not usually require assistance from other people to perform self-care tasks. Therefore Rules 5.8(b) and (c) are not met.
There is no evidence to suggest the Applicant requires assistance to participate in consultations with her treating doctors. The Tribunal is also satisfied she is able to independently manage any medication regime if necessary. The Tribunal is satisfied the Applicant is able to perform the tasks associated with maintaining her health.
In considering whether the Applicant meets Rule 5.8(a), and applying the test set out in Foster, the Tribunal is satisfied that, in the main, the Applicant is able to care for herself effectively or completely, and to perform tasks or actions required to care for herself effectively or completely, without assistive technology, equipment (other than commonly used items) or home modifications, by undertaking the tasks when she is able using some techniques she has adopted, such as when showering and transferring from the toilet. The Tribunal is not satisfied Rule 5.8(a) is met.
The Tribunal is satisfied the Applicant can independently perform the tasks of personal care, hygiene, grooming, eating and drinking. She is able to dress, shower, eat and go to the toilet without assistance from others. Taking into account the Court’s guidance in Foster, considered overall, the Tribunal is not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to the self-care activities; personal care, hygiene, grooming, eating and drinking, and health. Considered overall, the Tribunal is not satisfied the Applicant’s impairments result in a substantially reduced functional capacity to undertake self-care.
Self-management
The Operational Guideline with respect to self-management relevantly states as follows:
Self-management – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Dr Wall reported in May and July 2020 that the Applicant does not need assistance with self-management.
In her SOLE the Applicant stated that her condition has caused her to make some bad decisions, for example the decision to sell the family home and move to a different location. She acknowledged however that she generally manages the household finances.
In her oral evidence the Applicant stated that she used to be quite decisive but these days she does not make decisions quickly. She confirmed however that she uses self-monitoring strategies to manage her anxiety and uses CBT and relaxation techniques.
Mr Stretton’s observations under self-management relate to housework and grocery shopping which the Tribunal has dealt with under self-care.
The Tribunal notes Dr Ashkar did not report that any decision-making impairment was identified in the results of the assessments he undertook.
The Tribunal is not satisfied the evidence before it demonstrates the Applicant has any cognitive impairment that would impact her capacity to self-manage.
Considered overall, the Tribunal is not satisfied the Applicant meets any of the circumstances set out in Rule 5.8 with respect to the activity of self-management.
Having considered the Operational Guideline with respect to self-management, the Tribunal is satisfied the Applicant is able to, in the main, organise her life, plan, make decisions, and look after herself. While in hindsight the Applicant has decided she did not make good decisions when she sold the family home, the Tribunal notes she was able to go through the process of selling her house and purchasing another home. On her evidence she manages the household finances. The Tribunal is satisfied the evidence indicates the Applicant is able to manage day-to-day tasks.
Considered overall, the Tribunal is not satisfied the Applicant has a substantially reduced functional capacity to undertake self-management activities.
Does the Applicant satisfy the disability requirements?

For the reasons given above, the Tribunal finds the Applicant’s physical impairment does not result in substantially reduced functional capacity to undertake any of the specified activities as required by paragraph 24(1)(c) of the Act. Accordingly, she does not meet the disability requirements.
As the Applicant has not met a mandatory provision of the disability requirements, it is not necessary for the Tribunal to consider whether she meets paragraphs 24(1)(d) and 24(1)(e) of the Act.
Does the Applicant satisfy the early intervention requirements?
As the Applicant has not met the disability requirements, the Tribunal must consider whether she meets the early intervention requirements.
The Applicant has not made any submission that she meets the early intervention requirements.
The Applicant has had impairments associated with osteoarthritis, which she has in her knees, wrists, hips and spine, for several years. Dr Wall indicated exercise, physiotherapy, weight loss and reduced repetitive tasks may strengthen the sustainability of available or existing supports.[61] However Dr Richmond found the condition is degenerative and will continue to deteriorate with and without treatment.
[61] EB, T10, Access Request – Supporting Evidence, p 173.
On the basis its findings for the reasons given above in relation to paragraph 24(1)(b), the Tribunal is satisfied the Applicant has a permanent physical impairment and paragraph 25(1)(a)(i) of the Act is met.
On the evidence before it, for the reasons given above in relation to paragraph 24(1)(b), the Tribunal is not satisfied the Applicant has one or more identified impairments that are attributable to a psychosocial disability and are, or are likely to be, permanent.
Taking into account Dr Richmond’s conclusion about the Applicant’s impairment the consequence of her longstanding osteoarthritis, that it is degenerative and will continue to deteriorate with and without treatment, the Tribunal is not satisfied early intervention supports are likely to benefit the Applicant by reducing her future needs for supports in relation to her physical impairment. Accordingly it is not satisfied paragraph 25(1)(b) is met.
The Tribunal is of the view that the Applicant must meet paragraph 25(1)(b) to meet the early intervention requirements. However, if it is wrong about this, for the following reasons, it is also not satisfied the Applicant meets the provisions set out in paragraph 25(1)(c) and subsection 25(3) of the Act.
With respect to whether early intervention is likely to benefit the Applicant, by mitigating or alleviating the impact of her impairment on her functional capacity to undertake any of the six listed activities, prevent deterioration or improve function, the Tribunal is of the view there is insufficient current evidence to clearly identify what those supports would be. The supports the Applicant seeks are physiotherapy, massage, help around the house and assistance with continuing strengthening exercises. Dr Wall indicated the Applicant requires home modifications, rails and taps, due to the Applicant’s mobility. Given Dr Richmond’s view that the Applicant’s condition is degenerative, the Tribunal is not satisfied on the evidence before it that any of those supports would achieve any of the outcomes set out in paragraph 25(1)(c) of the Act.
Even if the Tribunal is wrong about this, subsection 25(3) states in effect that the Applicant does not meet the early intervention requirements if early intervention support is more appropriately funded or provided through other general systems of service delivery or support services offered as part of a universal service obligation. It understands from the Respondent’s submissions that the Applicant can now seek assistance through My Aged Care, as she is now aged 69 years. Given this, even if the supports she seeks are early interventions that meets the requirements of paragraph 25(1)(c) of the Act, the Tribunal is of the view the supports are not most appropriately funded or provided through the NDIS, and they are more appropriately funded through other general systems. Accordingly, the Applicant does not meet the early intervention requirements because subsection 25(3) is not met.
The Tribunal is 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
The Tribunal finds 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 is correct.
DECISION
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 201 (two hundred and one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly.

........................[Sgd]................................
Associate
Dated: 14 August 2024

Date(s) of hearing: 7 November 2023, 30 January 2024

Date final submissions received: 29 January 2024

Advocate for the Applicant: Ms D Heazlewood

Counsel for the Respondent: Ms G Yates

Solicitors for the Respondent: Ms A Cornfield, Australian Government Solicitors

[2024] AATA 2860

14 August 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Natural Justice

Date(s) of hearing:	7 November 2023, 30 January 2024
Date final submissions received:	29 January 2024
Advocate for the Applicant:	Ms D Heazlewood
Counsel for the Respondent:	Ms G Yates
Solicitors for the Respondent:	Ms A Cornfield, Australian Government Solicitors