Colefax and National Disability Insurance Agency

Colefax and National Disability Insurance Agency [2024] AATA 2854 (9 August 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/9375
Re:Ngaire Colefax
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member P Hunter
Date:09 August 2024
Place:Perth

The decision under review is set aside and, in substitution, the Tribunal decides that the Applicant meets the access criteria under section 21 of the National Disability Insurance Scheme Act 2013 (Cth).
........................[SGD]................................................
Member P Hunter
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access request – Functional Neurological Disorder- Somatic Symptom Disorder- chronic pain – whether there is substantially reduced capacity – assistive technology – access granted – decision set aside and substituted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
Beaumont and National Disability Insurance Agency [2024] AATA 891
Beezley v Repatriation Commission (2015) FCAFC 165
Gardner and National Disability Insurance Agency [2023] AATA 1287
Madelaine and the National Disability Insurance Agency [2020] AATA 727
Mulligan v National Disability Insurance Agency [2015] FCA 544
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; (1979) 2 ALD 60
Sheldon and National Disability Insurance Agency [2018] AATA 2560
SECONDARY MATERIALS
National Disability Insurance Agency, Our Guidelines: Applying to the NDIS,
National Disability Insurance Agency, Our Guidelines: Assistive Technology (equipment, technology and devices)
REASONS FOR DECISION
Member P Hunter
09 August 2024

This application is about whether Ms Ngaire Colefax (the Applicant) should be granted access as a participant to the National Disability Insurance Scheme (NDIS).
The Applicant is a 50-year-old woman. She lives in single level, private rental accommodation in Golden Bay, Western Australia, with her two sons, Aaron and Ronan, aged 26 and 20 years. Up until 2018, the Applicant worked as a community carer. She currently is in receipt of Carer Payment for the care she provides to her two sons, both of whom have Autism Spectrum Disorder (ASD) and are participants in the NDIS.
The Applicant first began having difficulties with pain in 2014. From 2015 to 2017, the Applicant developed left sided muscle spasms especially at night-time. In 2019, her neurologist, Dr Jason Burton, diagnosed the Applicant with Functional Neurological Disorder (FND). She was subsequently referred to a clinical psychologist, Dr Michelle Byrnes, who diagnosed the Applicant in 2020 with Somatic Symptom Disorder (SSD).
On 8 April 2021, the Applicant lodged an application to become a participant and identified the disabilities of FND leading to Chronic Pain Syndrome and Post Traumatic Stress Disorder (PTSD). The National Disability Insurance Agency (the Respondent) decided on 1 September 2021, that she was ineligible to access the NDIS as she did not meet the disability requirements.
The Applicant sought an internal review of this decision by the Respondent relying on the conditions of FND with associated Chronic Pain Syndrome, PTSD, Major Depressive Disorder, Generalised Anxiety Disorder, SSD and Adjustment Disorder. On 22 November 2021, a Respondent decision maker affirmed the decision. This is the reviewable decision of the Respondent, that the Applicant applied to the Tribunal for review under section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
As of 20 December 2023, the Applicant seeks access to the NDIS only on the basis of the conditions of FND and SSD.[1]

LEGISLATION

[1] Applicant’s Statement of Facts, Issues and Contentions dated 20 December 2023, at p 3 (JTB 52).

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 and the residence requirements set out in sections 22 and 23 of the Act, and so the Tribunal finds. The Tribunal must decide whether 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 will then consider whether she meets the early intervention requirements set out in section 25 of the Act which relevantly states as follows:
A person meets the early intervention requirementsif:
(f)the person:
(i)       has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)      has one or more identified impairments that are attributable to a            psychiatric condition and are, or are likely to be, permanent; or
(iii)     is a child who has developmentaldelay; and
(g)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
(h)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)     mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)    preventing the deterioration of such functional capacity; or
(iii)   improving such functional capacity; or
(iv)   strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
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 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; (1979) 2 ALD 60.
[3] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS
ISSUES
For the Applicant to gain access to the NDIS, the Tribunal must be positively satisfied that all the access criteria, in either the disability requirements, or the early intervention requirements, are met. The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[4]
[4] Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
The Respondent accepts the Applicant has a physical disability arising from her FND and a psychosocial disability arising from her SSD. 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.
The Respondent has also accepted that the Applicant’s impairments are permanent. If the Tribunal is satisfied that the Applicant meets paragraph 24(1)(a) of the Act, the Tribunal will also consider whether any of her impairments are permanent such that paragraph 24(1)(b) of the Act is met.
If the Tribunal finds sections 24(1)(a) and (b) are met, it will then consider whether the Applicant’s impairments result in substantially reduced functional capacity to undertake any of the following activities: communication, social interaction, learning, mobility, self-care or self-management. The Respondent contends the Applicant has not demonstrated a substantially reduced functional capacity in any of the specified domains in subsection 24(1)(c)(i) and therefore does not meet section 24(1)(c) of the Act.
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 his capacity for social and economic participation, and, if so, whether she is likely to require support under the NDIS for her lifetime. The Respondent has agreed that the Applicant’s impairment affect her capacity for social and economic participation only. It is not accepted, and the Tribunal will consider whether she requires lifetime support.
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 the early intervention requirements because there is insufficient evidence before the Tribunal identifying any supports that are early intervention or the likely trajectory of the Applicant’s condition upon receiving such supports.[5]
[5] RSFIC, paragraph 91.
EVIDENCE
The Tribunal was provided with a tender bundle (JTB 1) and an addendum to the tender bundle (JTB 2), which incorporated the material filed before the Tribunal, the T-Documents and other relevant documents (including the parties Statement of Issues Facts and Contention, the Applicant’s answers to targeted questions, material produced on summons by the Fiona Stanley Fremantle Hospitals Group, Dr Michell Byrnes, Dr Jason Burton and Secret Harbour Family Doctors, and statement of agreed facts and an agreed summary of issues in dispute). The Applicant filed a witness statement dated 3 May 2024, which was also admitted into evidence at the commencement of the hearing (A1).
The Tribunal held a hearing by video on 6 and 7 May 2024. The Applicant was represented by Ms Faulkner of Legal Aid and the Respondent was represented by Ms Douglas-Baker of counsel. The Tribunal was assisted by the opening and closing submissions of both parties, made orally at the hearing.
The Applicant and Ms Faulkner attended the Tribunal premises in person at the Perth Registry in Western Australia. The member and the Respondent’s counsel were via video from New South Wales. The Tribunal also heard evidence from Ms Rebecca Thompson, occupational therapist. The Applicant and Ms Thompson were the only witnesses to give oral evidence at hearing. Approximately two weeks prior to the hearing, the Applicant informed the Tribunal that Ms Michelle Byrnes (Clinical Psychologist) had declined to give evidence on behalf of the Applicant.
The Applicant
The Applicant provided an unsigned witness statement dated 3 May 2024, that she spoke to during the hearing. During the hearing, the Tribunal noted that the Applicant alternated from sitting to standing, continuously shifting her position. Her evidence was also given allowing for several breaks for the Applicant to rest.
The Applicant confirmed that she was seeking access to the NDIS on the basis of her FND with predominant pain, persistent and severe (SSD).
The Applicant stated that her FND and SSD have significant impact on her body and mind, particularly with how her body functions, how she learns, thinks and pays attention. She stated that for the last seven years she had been in constant and chronic pain.
Self-care
The Applicant can complete her own self-care, and the cleaning and also care for her sons, slowly and with many rests. Her sons will assist with heavy lifting but due to their disabilities cannot do some things around the home. She can prepare food for herself and her sons. She prepares simple meals as her son’s diets are restrictive due to their ASD and for herself she will cook simple vegetables and protein. She does not cook anything complicated due to fatigue and pain when she is standing. Also, her hands can become very painful and fatigued.
The Applicant wrote that she cleans the house with difficulty. She has a robot vacuum cleaner. She will take short breaks while doing the cleaning, and then after completing the cleaning will take a longer rest. On a bad day she can sometimes only get through the toilets and bathrooms and then needs to rest for a few hours. At the hearing, the Applicant said that her son Ronan was very messy, and she would have to clean up after him every day. For example, she would wipe the kitchen benches daily.
Communication and Learning
During ordinary conversations, the Applicant wrote that she had difficulty and she struggled to concentrate on what people are saying. Due to her condition, she feels very tired in her head and may not process what someone talking to her is saying. She will have to get people to write things down or ask them to repeat the information many times. She struggles to stay present and understand what is being said to her. In her statement she provided the example that she had to attend Harvey Norman several times for assistance because their television was not working, she will repeatedly request the boys therapists repeat information or she may have to stop her appointment with her psychologist as she is no longer focusing.
The Applicant currently uses hearing aids. She wrote that the audiologist told her she had severe auditory processing difficulties. She also wrote that her hearing aids make conversations clearer and easier to follow, but her brain fatigue makes it hard to listen. At hearing the Applicant said she was diagnosed with bilateral hearing loss in December 2022, and the hearing aid help because they make people clearer. She said that she did not really know if they helped with auditory processing or hearing difficulties.
The Applicant wrote that it can sometimes take her time to get words out when speaking. Sometimes what she intends to say does not come out. She identifies that her words will be jumbled, that she may mispronounce or stutter. She says she finds it mortifying as she worries about looking like she cannot even speak properly. When fatigued, her speak is affected and also delayed.
In her statement the Applicant wrote that she finds reading tiring, she cannot get past the beginning of a book. She will read the same passage over and over and it does not sink in. She relies on the assistance of others to understand written documents, mostly her sister Renae and son Aaron. For instance. if she receives an email about her sons’ NDIS supports she usually cannot understand what is being said. Her son will help her read it or she will forward it to her sister who may also help with a written response. If she needs help to understand the meaning of what someone is saying she will ask her sister or her son Aaron.
Also, in her statements she said that when texting family she will often get a response back that what she has written does not make sense, and when she checks, what she has written is not what she intended. At the hearing, the Applicant stated that this had happened most recently with her mother.
Her short-term memory and thinking are affected. Once a day she will walk into a room and forget what she is doing there. She will put things away and forget where they are. She forgets what she goes to the shops to buy. Even though she tries to use lists, she will often delete them by accident. It is hard for her to recall people’s names and she forgets appointments and will double book herself.
She finds it hard to take in new information. For example, when cooking a recipe will have to read it over and over again. It takes her so long to finish each step.
She is very reliant on Aaron for assistance with new things. He will help with technical things around the house such as televisions and computers. She cannot understand how things work no matter how many times it is explained to her.
Social interaction
The Applicant set out in her statement that she does not have any friends anymore, they have disappeared. She cannot do the same things that they do because of her pain and fatigue. She is not able to give what she used to give as a friend who has always been a listener who always gave a lot to others. She only has family now. At hearing the Applicant said that she used to have a big group of friends and they were all members of the gym. They would go out and have fun and there were also gym events.
She also wrote that she has three sisters and does not initiate contact with her sisters, but they will reach out to her. Before she got sick, she used to drive to see her parents and sisters all the time. They would catch up as a family group about once a week or so, she cannot do that anymore.
In 2022 after COVID she was not seeing any family at all and became quite depressed. Since the pandemic has eased her depression has gotten better and she will see individual members of her family on occasion. She speaks to her parents and sisters sometimes.
She wrote that once a week her sister Sharyn will text her and they have coffee once a week at a café close to her house. Sharyn is deaf and isolated, so the Applicant claims that she needs her. They meet and talk for maybe up to an hour which is longer than she can sit and speak without pain or fatigue, but she does this because her sister needs her.
Her sister Renae, who lives in Claremont, will sometimes come to see her or she will take the train and her sister will collect her from the station. Her other sister Melissa will text every couple of weeks, but they rarely see each other. She speaks on the phone to her parents; she is in frequent touch because they are aging and unwell. Her mother has leukemia and is also struggling a lot. She does not talk very much and is not really able to engage due to her fatigue and pain. She sees her parents occasionally if they drive to her or her sister Renae takes her to their house.

She wrote that she did not participate in any other social activities and does not use social media to keep in touch with people. She finds it hard to process what people are saying in public places or in groups. This makes it hard for her to go out in public and she leaves the house rarely. She also becomes overwhelmed by noise and lights. In her evidence at hearing, the Applicant said that she did not participate in social activities as there was too much noise and too many things going on. She said that she found it too hard to concentrate in a noisy environment.
In her statement she claimed that responding appropriately to others in social situations is challenging for her. She feels triggered by people’s rudeness and can respond aggressively and escalate the situation. She feels like her body is always in fight or flight, she is easily startled and goes straight into fight mode.
Mobility
In her statement, the Applicant set out that a few months prior to the hearing she started to use a walker at the recommendation of her clinical psychologist. Her sister purchased it for her second-hand and this has a seat on it so she can rest when moving around.
Every day now she uses the walker around the house, she sits on it when talking to her sons or moving around the kitchen doing tasks such as cooking or doing the dishes. It helps with her fatigue levels. She will also use a walking stick when going up and down the passage at the front of her house. She needs the walking stick most days but maybe up to two days a week she can rely on walls or furniture.
She feels now she can tolerate being out of the house less. She is too tired to leave for anything that is not essential. She used to get takeaway coffee to get out of the house but now that is a struggle. At hearing, the Applicant also blamed costs of living expenses as a reason for forgoing her takeaway coffee, and commented her rent had increased over $200.
On a good day she can do the grocery shopping. On average days she might be able to pick up urgent items such as bread or milk or attend an appointment nearby. On a good day, she can walk the average distance from her ACROD parking space to the GP office or other appointments. On an average day she will use her walking stick or walker. She uses a walker if she needs to buy a loaf of bread or milk or other small items. For a larger shop, which requires a trolley, she will lean on the trolley to get around the shop.
She used to do a gentle yoga class run by a nurse, she would try to go once per week. Since the start of the year the Applicant set out in her statement that she had rarely gone to yoga, and that it would be very rare that she felt she could manage it because she was having fewer good days with pain and fatigue. Under questioning at the hearing the Applicant said that she was in the past doing yoga once per week. Leading up to the Tribunal hearing she said that she had not been for about five weeks. She also said that she would go to the gym and do light resistance work maybe once a fortnight if not going to yoga. She also stopped attending hydrotherapy because of availability issues, and she had not had the capacity to follow it up.
She could not sit more than half an hour, or stand in the one spot for more than about ten to 15 minutes. She claimed she would struggle to get in and out of her reclining chair or bed and struggle to move around the house.
She can drive for up to about 15 minutes and then starts to get fatigued. The Applicant claimed that she did not drive more than five minutes with any frequency. However, once a month she would drive Aaron to his psychology appointment in Mandurah, which was 20 minutes away.
Self-Management
The Applicant claimed to be forever double-booking appointments or putting them in the calendar wrong or forgetting altogether to put them in the calendar. When asked for examples at the hearing the Applicant said that it had happened when she had to do a new physiotherapy plan for her son, about six weeks prior, and she had booked his psychologist and physiotherapist at the same time. In her statement, the Applicant claimed that this had become worse recently. She also wrote that she constantly loses her cash card, and had to have it replaced six weeks earlier.
The Applicant wrote that she struggled to manage her finances more than she used to. She claimed to be more forgetful, and her father would help her with financial planning and her sister Renae and son Aaron help with her day-to-day finances. She had set up direct debits for bills, but can forget to leave money in the account.
The Applicant writes that she relies on advice from Renae to make a lot of decisions and she can take time to think through problems. For example, when she went through her divorce, she had to ask Renae what to do every step. The Applicant writes that Renae helps her with decisions in relation to her sons and their supports, finances, superannuation, her rental property, her self-care, her medical and other matters. She also relies on her son for emotional support.
At hearing, the Applicant said that as part of her care for her sons, she would have to prompt her sons a lot to do things as they do not like to do things for themselves.
Dr Samuel Oparah
Dr Samuel Oparah is the Applicant’s treating general practitioner. In the NDIS Access form,[6] Dr Oparah records that the Applicant has a main disability of FND leading to Chronic Pain Syndrome and also PTSD. The conditions were reported to have affected the Applicant’s functional capacity for four years and the Applicant being managed by her neurologist, cognitive behavioural therapy and with physiotherapy for muscle spasticity. According to Dr Oparah, there were no more available evidence-based treatments that would be likely to substantially relieve the Applicant’s impairment.
[6] T Doc T3 p. 67 and JTB1 p147.
Dr Jason Burton
Dr Jason Burton is a Consultant Neurologist, who has treated the Applicant. Dr Burton did not provide evidence, but the Applicant has presented letters from Dr Burton dated 13 February 2019, 23 August 2019, 10 December 2020, 9 April 2021(2) and 17 October 2022.[7]
[7] JTB1 1373-1416.
On 23 August 2019, Dr Burton wrote, that the Applicant was “disabled by her symptoms, which would appear to be best explained as functional neurological disorder”.[8]
[8] T Docs p.99 and JTB1 p. 167.
Dr Burton again confirmed his diagnosis in his letter of 9 April 2021, and wrote that the Applicant “has a functional neurological disorder characterised by involuntary painful spasms, pain, fatigue and insomnia. Unfortunately, her symptoms have persisted for more than three years now and have not responded to various trials of medications.”[9]
[9] T Docs p.19 and JTB1 p. 86.
Dr Michelle Byrnes, Registered Clinical Psychologist
Dr Byrnes is a clinical psychologist who has been treating the Applicant since September 2019. She reports a clinical diagnosis (DSM-V:ICD-10) in respect of Conversion Disorder (Functional Neurological Symptom Disorder- Chronic) Somatic Symptom Disorder (Chronic) Post-traumatic Stress Disorder, Depression (Severe), Anxiety Disorder due to another medical condition, Adjustment Disorder with mixed anxiety and depressed mood. Dr Byrnes also stated that she was aware that the Applicant’s condition was permanent, had not responded to various trials of medication and will not significantly improve over time.[10]
[10] JTB1 p.13.
Dr Byrnes has provided several reports and clinical letters of support at the request of the Applicant. She did not provide oral evidence, the Applicant relies on her letters of 15 September 2020, 26 April 2021, 21 June 2021, 2 November 2021 and 23 May 2023.[11] Dr Byrnes declined to provide evidence at the hearing on the basis that she did not consider that she was an appropriate witness to speak to the Applicant’s functional capacity.
[11] JTB1.
Dr Katherine Gill
Dr Katherine Gill, occupational therapist with FND Australia support services. She assessed the applicant via video on 28 July 2021, and prepared a report dated 29 July 2021 for the purposes of determining the Applicant’s care needs in relation to her application for access to the NDIS.[12]
[12] JTB1 p. 18.
Dr Gill did not give oral evidence at the hearing however the Applicant relied on Dr Gill’s written evidence in her contentions that she requires support under the NDIS for her lifetime.
Dr Gill recommended that the Applicant access the NDIS as a participant on the basis of having a lifelong disability which severely impacted her daily functioning. She reports that the Applicant has accessed multi-disciplinary care treatment including neuropsychology, physiotherapy and specialist care. Her condition is permanent and lifelong. The Applicant will require ongoing management for her disabilities, but this will not lead to any functional improvement.
Dr Gill assessed that the Applicant was independent with increased time and effort in some aspects of self-care but required assistance with meal preparation, housework and laundry and was dependent on assistance for shopping. She reported reduced fine motor skills in respect of coordination and hand dexterity. Difficulties were also reported for the Applicant with movement and walking. The Applicant was at high risk of falls with limited sitting and standing (10 minutes) tolerance. At the time of Dr Gill’s report, the Applicant was using nil mobility aids, although she used a shopping trolley when shopping. Mild cognitive issues were also reported in the Applicant and difficulty maintaining the flow of conversation with others. At the time of her report the Applicant was undertaking a Chronic Conditions course online at Macquarie University, for her own personal benefit which required the completion of weekly tasks 5-6 hours per week. She noted that the Applicant was independent in use of her computer, and mobile phone although preferred the iPad as the screen was larger. Further, the Applicant manages her own finances.
In making her recommendation Dr Gill conducted the following assessments:
·World Health Organisation Disability Assessment Schedule (WHODAS) 2.0;
·Lower Extremity Functional Scale (LEFS);
·Montreal Cognitive Assessment (MoCA); and
·Health of the Nation Outcome Scales (HoNOS).
In the WHODAS the Applicant gave herself a score of 71.53% which equates to a severe disability.
In her LEFS a score of 10% of maximal function was obtained indicating a high level of low extremity disability for the Applicant.
In her MoCA the applicant obtained a score of 22/30 indicating a mild cognitive impairment with points lost in delayed recall with indication of memory deficit due to retrieval failures.
In the HoNOS the Applicant scored in the clinically significant range for impairment and score problems, indicating a need for greater support.
In her report Dr Gill set out that the Applicant required funded supports in Core and Capacity Building to meet her goal of improving and maintaining safety and independence in the home and community, increasing community access and social participation and reducing pain, fatigue and spasticity when preparing meals. She further set out a description and estimate of the type and duration of relevant suggested supports such as OT intervention, exercise physiology, physiotherapy, psychology, community access, housework and support coordination.
Mr Devin Hare
Mr Devin Hare, physiotherapist, has treated the Applicant, and in his report of 2 November 2021,[13] provided a functional assessment of the Applicant. Mr Hare did not give evidence.
[13] JTB1 117.
Mr Hare reported that the Applicant’s symptoms are sporadic, unpredictable and change from day to day. It is this nature that has led to the physical and mental exhaustion of the Applicant. He further reported that the Applicant has exhausted all avenues of healthcare to manage her symptoms which include neurological pain, muscle spasm, muscle pains, neurological changes such as weakness and loss of sensation, chronic fatigue and sleep disturbances. There were no currently available treatments which will reverse or fully alleviate the symptoms that the Applicant experiences, or the effect that they have on her everyday functioning. However, physical therapy for capacity building was recommended to develop better coping strategies and to preserve the Applicant’s long-term functioning.
Dr Duane Anderson
Dr Duane Anderson was a consultant, pain management, at the Fiona Stanley Hospital. The Applicant was referred to the pain management clinic at the Fiona Stanley Hospital in 2020. In his letter of 24 March 2020,[14] he noted the following symptoms:
[14] T Docs T3E p 101, JTB1 169
i.Back and buttock pain.
ii.Bilateral S1.
iii.Anterolateral thigh.
iv.Pins and needles below the knees.
v.Thoracolumbar back pain.
vi.Muscle spasms particularly on the left side especially at night.
vii.She has a stiff leg which can collapse but she does not fall.
viii.Widespread electric shocks.
ix.Weakness.
x.Tremors.
xi.Migraines.
xii.Sleep impairment.
xiii.Fatigue.
xiv.Muscle twitching.
Dr Anderson further noted that the Applicant was engaged in “many active management strategies and she keeps quite fit and healthy otherwise, including yoga. She attended a gym two to three days per week before they were shut down during the current pandemic.”[15]
[15] T Docs T3E p 102 and JTB1 170.
Micaela Stone
Micaela Stone, occupational therapist, was not called to provide oral evidence and the Applicant relied on her report dated 9 July 2021.[16] Ms Stone does not set out the manner of her assessment of the Applicant, whether it was in person, video, or phone. She details that the Applicant had not accessed occupational therapy service through her organisation previously. Ms Stone supports the Applicant’s eligibility for NDIS with ongoing occupational therapy supports to improve and maintain the Applicant’s safety and independence in the home and community and to increase her community access and social participation.
[16] T Docs T6 p. 125 and JTB1 193.
Professor Mark Walterfang
The Respondent engaged Professor Mark Walterfang, Senior Staff Specialist, Consultant Neuropsychiatrist and Deputy Director of Neuropsychiatry, Royal Melbourne Hospital, who undertook an independent medical examination of the Applicant on 25 February 2023, via telehealth and produced a report[17] on the same date.
[17] JTB1 323.
Professor Walterfang did not provide oral evidence to the Tribunal. The Respondent has relied on his report which sets out the past treatment of the Applicant as well as her past and current symptomology.
He reports that, from a cognitive perspective, the Applicant noted significant fluctuating issues with attention and concentration, as well as memory retrieval. Examples of this included forgetting at times what she is meant to be doing when she walks into a room, and forgets that bills are due to pay, and notes that she can struggle to attend to a television program but attributes this to cognitive fatigue. She is generally good with appointments but needs memory aids to ensure that this occurs.
Professor Walterfang comments that it did appear that the Applicant’s level of impairment had been relatively static since approximately 2018, although there has been some note of worsening hand pain and utility and increased pain developing over the last six months. Professor Walterfang believed that the Applicant met the criteria for a conversion disorder (functional neurological symptom disorder) (DSM-5 300.11, 1CD-10 code F44.4-7), in that she had one or more symptoms of voluntary motor or sensory functioning, with clinical findings providing evidence of incompatibility between the symptom and the recognised neurological or medical conditions, with the symptom or deficit not better explained by another medical or mental disorder and it causes clinically significant distress or impairment in social, occupational or other important areas of functioning. In addition, he believed that the Applicant met the criteria for SSD with predominant pain, persistent, severe (DSM-5 300.82, ICD-10 code F45.1), in that she has one or more somatic symptoms that are distressing and result in significant disruption to daily life, with excessive thoughts, feelings or behaviours related to the somatic symptoms manifest by persistent thoughts about the seriousness, a high level of anxiety about health or symptoms and excessive energy and time devoted to these symptoms. In his assessment the Applicant’s prognosis was highly guarded
Professor Walterfang also comments that he did not believe that the diagnosis of PTSD made by Ms Byrnes could be sustained. He believed that the Applicant’s major depressive disorder and generalised anxiety disorder were better described in his diagnosis as an adjustment disorder.
Rebecca Thompson
Ms Rebecca Thompson, occupational therapist, was engaged by the Respondent to provide a report following an in-person assessment of the Applicant in her home on 13 June 2023. Ms Thompson also provided oral evidence to the Tribunal and spoke to her report dated 27 June 2023.[18]
[18] JTB1 417.
Ms Thompson undertook a number of assessments of the Applicant including a Pain Body Map, Brief Pain Inventory, Cognitive Failure Questionnaire, Brief Fatigue Inventory, WHQAL, WHODAS and an Upper Extremity Functional Index, the results of which she set out in her report.
As to the Applicant’s mobility, Ms Thompson reported that the Applicant was able to transfer on and off chairs, and in and out of bed on any given day without restriction. On good days, the Applicant could walk a maximum of 20-30 minutes consisting of 50-100 intervals with rest breaks between each effort. Once the Applicant was at her maximum capacity, she needed to return home and rest for 1-2 hours. For the remainder of the day, she is able to tolerate household distances only due to the ongoing effects of pain and fatigue. Ms Thompson also commented that the Applicant would catch the train once per week, on a good day to the Fiona Stanley Hospital to undertake hydrotherapy. The train was the most suitable mode of public transport as the Applicant was able to alternate between sitting and standing.[19]
[19] JTB1 417
Ms Thompson observed during her assessment that the Applicant could walk independently in her own home and occasionally reach for a wall or piece of furniture to steady herself. She walked slowly with a wide base of support and cautiously avoiding movements which might aggravate her lower back pain.
Ms Thompson was asked at the hearing to comment on the Applicant’s reported staggering. She stated that the Applicant had provided her with some context, and it was her understanding that this referred to the Applicant becoming imbalanced and moving sideways. She said that when someone uses a walking stick it can affect the leg on the other side. She did not observe any staggering when she assessed the Applicant. She referred to her comments in her report of the Applicant walking with a wide base of support which she said was common in persons with unstable mobility. She did not doubt the symptoms of the Applicant as she had described.
At the time of Ms Thompson’s report, the Applicant was reportedly on average leaving the house for a short trip (5-6 days per week), such as to pick up a takeaway coffee or attend an appointment with her GP. These activities were reported to require significantly less walking (perhaps up to 100m) which the Applicant could manage despite high levels of pain. Bending and twisting was reported to aggravate the Applicant’s pain and she would avoid this movement as much as possible.
Ms Thompson reported that she understood the Applicant was attending the gym for yoga, but she did not know that the Applicant was also attending the gym for light resistance training.

When asked during the hearing to comment at the hearing on the change in capacity of the Applicant set out in her statement, Ms Thompson stated that this change was not surprising given the stress and anxiety leading up to a Tribunal hearing and its impact on the Applicant’s sleep. Ms Thompson said that these things have a detrimental effect on someone with FND, which is a fluctuating condition. and there would be some decline leading up to the hearing. She believed that her report captured at best what the Applicant could do on a good day.
Ms Thompson provided the Tribunal with evidence as a resident of WA of the distance travelled by the Applicant to the hearing, being a drive to the station of 15 to 20 minutes, a train to Clairmont, involving a change of trains, of one hour and 20 minutes, and then a drive from Clairmont to Perth, of approximately 20 minutes with a short amount of walking.
Ms Thompson spoke to the recommendations in her report commenting on the benefit of exercise for the Applicant to prevent deconditioning, together with social support and the development of other strategies to manage daily activities and the organisation of daily activities.
When asked about the need for lifelong support for the Applicant, Ms Thompson gave evidence that it was common for persons such as the Applicant to require ongoing support. She further stated that in her experience no one she had worked with had been able to improve so they needed no further support.
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?
In their Statement of Facts, Issues and Contentions dated 15 November 2023, the Respondent has not taken issue with whether the Applicant satisfies s 24(1)(a) of the Act and this was confirmed at the Tribunal hearing.
The medical evidence before the Tribunal about the treatment and history of the Applicant’s medical conditions covers several years and includes relevant specialist review.
The Applicant received a formal diagnosis of FND with associated Chronic Pain Syndrome in 2019 by Dr Burton (Consultant Neurologist) with symptoms that have persisted for more than three years that had not responded to various trials of medication. In her psychological assessment, Dr Byrnes, concurred with Dr Burton’s assessment that the Applicant was experiencing chronic clinical symptoms of a conversion disorder (FND) and SSD.[20]
[20] JTB1 13.
Dr Byrnes also set out in her report of 26 April 2021, that she assessed the Applicant was experiencing the symptoms of PTSD, depression and an anxiety and adjustment disorder. Professor Walterfang believed that the Applicant met the criteria for an adjustment disorder with mixed anxiety and depressed mood, but not that she met the criteria for PTSD, major depressive disorder, or generalised anxiety disorder.
In her witness statement the Applicant acknowledged that she had also been diagnosed with different conditions over the years related to anxiety and depression. She further acknowledged that she had been depressed during some periods of her life, including when she was diagnosed with a major depressive disorder. She stated that she also experienced some kind of anxiety, though it did not feel like the usual knots in the stomach feeling, it was more of a feeling of sensory overwhelm where her body reacts to ordinary sensory inputs, as opposed to just worry or ruminating thoughts. Further, the Applicant felt that either depression or anxiety are currently significant issues for her beyond the direct impact on her anxiety levels and mood caused by living with FND and SSD and the symptoms of those conditions.
The Tribunal is satisfied based on this evidence that the Applicant has the conditions of FND and SSD as well as an adjustment disorder. The Tribunal consequently finds that the Applicant satisfies subsection 24(1)(a) of the Act as she has a disability attributable to a physical impairment arising from the Applicant’s FND and impairments to which a psychosocial disability is attributable arising from the Applicant’s SSD, and an adjustment disorder.
. It is not satisfied as to the ongoing diagnosis of the conditions of PTSD, generalised anxiety disorder or major depressive disorder. It is not satisfied that these conditions satisfy subsection 24(1)(a) of the Act.
Is the Applicant’s impairment permanent or likely to be permanent?
The relevant Access Rules set out the following considerations for determining whether an Applicant’s impairments are permanent:
5.4 An impairment is, or is likely to be, permanent (only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
..
5.6 An 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).
5.7 If 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.
The position of the Respondent is that the criterion in s 24(1)(b) has been met in relation to the Applicant’s FND and SSD.
In considering whether the Applicant’s conditions are permanent, the Tribunal has had regard to the opinion of Dr Byrnes who has been treating the Applicant since 2019, and in her various letters and reports,[21] has consistently reported that the Applicant has a permanent condition. Dr Byrnes further comments in her report of 26 April 2021, that the Applicant had engaged collaboratively and continuously with her in psychological therapy, however she was fully aware that her condition was permanent, had not responded to various trials of medication and will not significantly improve over time.[22]
[21] JTB1 report dated 26 April 2021, letter dated 6 June 2022 and report of 2 November 2021.
[22] JTB1 13.
Dr Katherine Gill[23] assessed that the Applicant had undertaken all reasonable treatment, commenting that she had accessed a multi-disciplinary care treatment including neuropsychology, physiotherapy, and specialist care. Dr Gill reported that the Applicant’s condition was permanent and lifelong.
[23] JTB1 18.
Professor Walterfang also indicates that the Applicant’s FND and SSD are likely to be permanent, given the lack of reduction of the Applicant’s symptoms at the time of his assessment in February 2023, and the lack of available local treatment options.[24]
[24] JTB1 334.
Ms Thompson provides a thorough review in her report[25] of both the physical and psychosocial rehabilitation undertaken, and medication trialled by the Applicant. In respect of the Applicant’s FND with chronic pain and SSD, based on the evidence, the Tribunal accepts that the Applicant has engaged in evidence-based clinical, medical, or other treatments as required by rule 5.4 of the Access Rules. These treatments have included the Applicant undertaking specialist review, consulting with her treating G.P, trialling and reviewing recommended medication, engaging with a pain management program, undertaking psychological treatment, physiotherapy, occupational therapy, and a moderated exercise program.
[25] JTB1 417.
The Tribunal is satisfied that the Applicant’s FND and SSD are permanent impairments for the purposes of subsection 24(1)(b) of the Act.
With regard to the Applicant’s adjustment disorder, the evidence is that the Applicant continues to attend monthly sessions with her psychologist, Dr Byrnes. The Applicant herself is not relying on this condition and claims to experience some kind of anxiety in the past, which she describes not as ruminating on things but as sensory overload. By its very nature, an adjustment disorder is a condition caused by difficulty adjusting to new circumstances. The lack of medical evidence before the Tribunal regarding this condition does not allow the Tribunal to reach the required level of satisfaction that the Applicant’s treatment of this specific condition is insufficient to ameliorate the symptoms, particularly having regard to the Applicant’s own assessment as set out above.
Therefore, the Tribunal is not in a position to find, on the material before it, that the Applicant’s adjustment disorder are permanent impairments for the purposes of subsection 24(1)(b) of the Act.
Do the Applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the specified activities?
For the Tribunal to be satisfied that the Applicant meets the disability requirements for access to the NDIS, the Tribunal must be able to find that the Applicant has substantially impaired function in at least one of the six domains as set out in s 24 of the Act.
Consistent with the determination of the Federal Court in Mulligan,[26] the Tribunal must reach a level of positive satisfaction that the requirements of the Act are established. It is not sufficient that the Applicant might have a substantial impairment or is likely in the future to have a substantial impairment. To reach a level of positive satisfaction, the Tribunal must be satisfied that the evidence supports a finding that the Applicant has a substantial functional impairment.
[26] Mulligan v National Disability Insurance Agency [2015] FCA 544.
Ms Faulkner submitted that the word substantially should not be made to do more than its ordinary meaning. The Tribunal considers that, with respect to s 24(1)(c), the word “substantially” carries a high threshold. Its meaning should be considered in the context that the NDIS was not intended to provide reasonable and necessary supports to every person with a disability.
Rule 5.8 of the Access Rules prescribe circumstances or criteria to be applied by 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 Guidelines state:
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.
When assessing whether the Applicant has substantially reduced functional capacity as per rule 5.8(a), the first question is to consider what it means to say someone is unable to participate effectively or completely in the activity. The second is to determine what is meant by assistive technology or equipment and whether it could be said the Applicant uses either.
In Foster, their Honours held that “[i]n the overall legislative scheme, the adverb ‘completely’ appears to be redundant, and in any event, unachievable”.[27] For this reason, the word ‘effectively’, should be the focus and is taken to mean “serving to effect the purpose; producing the intended or expected result”.[28] In this sense, perfection is not the standard.
[27] National Disability Insurance Agency v Foster [2023] FCAFC 11, [83] (‘Foster’).
[28] Macquarie Dictionary (8^th ed, Macquarie, 2020) at p 493 cited in Foster at [82].
Further, undertaking a task differently or more slowly to others will not necessarily mean a person cannot participate effectively or completely in an activity.[29]
[29]Foster,[67].
A person will not necessarily be deemed to have substantially reduced functional capacity simply because one or more tasks is unable to be completed without assistive technology. The significance of the task to the overall concept of the activity is also relevant. However, it remains for the decision-maker to assess the degree to which the person can participate in the activity.[30]
[30] Foster,[88].
What is assistive technology or equipment is not defined in the Act or Access Rules. The NDIA Assistive Technology Operational Guideline, issued by the NDIA on 20 December 2023,[31] provides the following definition for “assistive technology”:
[31] OG Assistive Technology 20231220.pdf
The World Health Organisation has a universal definition of assistive technology.
Assistive technology is equipment or devices that help you do things you can’t do because of your disability. Assistive technology may also help you do something more easily or safely. Assistive technology will reduce your need for other supports over time.
This could be small things like non-slip mats, or special knives and forks. It could be big things like wheelchairs and powered adjustable beds. It also could be technology like an app to help you speak to other people if you have a speech impairment.
Not all equipment or technology you use is assistive technology. Many people use some equipment as part of their lives, for example, a radio to listen to music, or a standard microwave oven to cook food.
Assistive technology is only the equipment you need because it helps you do things that you normally can’t do because of your disability. It includes items that:
·mean you need less help from others
·help you do things more safely or easily
·help you to keep doing the things you need to do
·allow you to do tasks independently
·are personalised for you.
We don’t include:
·home equipment that everyone uses, that isn’t related to your disability, like a standard kettle
·items for treatment or rehabilitation
·changes to public spaces, like a footpath
·changes to public vehicles, such as buses or taxis
· assessment or therapy tools used by therapists
Preliminary matters
In assessing the relevant evidence before the Tribunal, the Respondent has submitted that the Tribunal should not place reliance on the assessments of Dr Byrnes as to the functional capacity of the Applicant. Dr Byrnes has in a number of letters and reports submitted in the proceedings set out her assessment or a summary of the evidence of the functional capacity of the Applicant in the various domains. However, as set out above, it was communicated to the Tribunal that she had declined to give evidence at the hearing, as she identified that she lacked expertise in functional capacity. Given this limitation reportedly expressed by Dr Byrnes of her own expertise, the Tribunal will treat it with care with respect to the assessment of the functional capacity of the Applicant and consequently defer to other evidence.
The representative for the Applicant submitted that the impact of the Applicant’s condition on her functional capacity was analogous to a diagnosis of the condition of cerebral palsy. Further, the actual mobility of the Applicant was similar to that of a person assessed under the Gross Motor Function Capacity System (GMFCS) at Level III or above. Ms Faulkner referred to the current Operational Guidelines for the Respondent where the disability of cerebral palsy at Level III or above was a List A condition stated as likely to meet the requirements for access to the NDIS within the Operational Guidelines. She urged the Tribunal to draw on the comparison with cerebral palsy and the Applicant’s conditions. The Tribunal did not find this analogy helpful and has not paid any regard to material related to the condition of cerebral palsy or the GMFCS. None of the medical professions who have supplied evidence in these proceedings have engaged in any similar comparisons. Ms Thompson, when questioned on relevant therapies, identified that in her limited experience persons with cerebral palsy had different therapy and exercise needs to the Applicant.
In assessing the Applicant's functional capacity, the Tribunal will take a 'wholistic' approach at what the Applicant can, and cannot do, having regard to the fluctuating nature of her impairments and the overall impact of her conditions of FND and SSD in assessing the Applicant's functional capacity.
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.
The Applicant’s claimed difficulties with following conversations, understanding what others say and answering questions quickly are corroborated by Ms Thompson and Dr Gill. Ms Thompson reports that the Applicant will lose track in the middle of a conversation or go off on a tangent. The Applicant describes experiencing a brain fatigue that makes it hard to listen and that she can sometimes take time to get words out when speaking, having to pause in conversation, mispronouncing or stuttering. Dr Gill records that the Applicant reported to ‘zone out’, that is, stare into space mid conversation with others multiple times a day, where she fees her brain just needs a break.
The Applicant provided an example in her statement that she elaborated upon at hearing where she needed to attend Harvey Norman due to a problem with her television. The Respondent has submitted that, despite the difficulties the Applicant expressed in communicating her problem, understanding the advice of the salesperson, and having to return a second time to the store, the Applicant was able to communicate her needs and solve her issues independently.
The Applicant also uses hearing aids, the Tribunal accepts that these are assistive technology. The Applicant claimed her hearing aids made her conversation clearer and easier to follow. The evidence in relation to the Applicant’s auditory assessment is a single page assessment from an unidentified individual at Specsavers Audiology. The ultimate report is two lines and reports a mild sensorineural hearing loss with severe auditory processing disorder. It is understood that the Applicant was fitted for these on 17 December 2021. There is insufficient information in the report to support a finding that the Applicant is unable to communicate without the use of hearing aids. During the Tribunal hearing the Applicant did not indicate difficulty hearing anything that was being said.
The Tribunal observed that the Applicant was able to communicate effectively during the hearing when questioned over several hours, with appropriate breaks. The Applicant engaged in this task in the stressful context of the Tribunal hearing setting, and after having engaged in what was considerable travel to arrive at the hearing as outlined in paragraph 87 of these reasons. It was observed that she spoke at a considered pace, and it is accepted that she experienced some difficulties and did request some questions be repeated or sought clarification that she had answered correctly. Nevertheless, the Applicant answered questions appropriately and independently at the hearing. Her responses were relevant to the questions asked and she was able to be clearly understood.

The Applicant also set out in her statement that she finds reading tiring and that she relies on the assistance of her sister or eldest son for documents. She provided the example of communications from the Respondent dealing with her sons’ personal packages under the NDIS. The Applicant spoke at the Tribunal about have difficulty following a chain of emails or locating long attachments on an email. She was able to work collaboratively with her representative and family members to produce in a short time a lengthy statement of evidence provided to the Tribunal.
Ms Thompson assessed that the Applicant requires moderate guidance for complex conversations and that she can respond more effectively to direct questions rather than open ended.
On the evidence the Applicant can communicate in a bother verbal and written formats. She can speak in a way that is understood by others, in full sentences, in person or over the phone. She can logically formulate sentences, thoughts and responses as evidenced in her presentation at the Tribunal hearing. She can use devices to send texts and emails or research regarding FND. The Applicant can communicate with her family, her own health providers, and those of her children, in relation to medical or other issues.
The Tribunal considers that the evidence is that the Applicant sometimes needs assistance from other people read documents and formulate a response. The Tribunal is not satisfied that she usually requires assistance.
While the Tribunal accepts that, in complex situations involving multiple parties or a distracting setting, the Applicant may need moderate guidance to remain engaged. It is accepted that such environments as well as contributing to her fatigue, can also contribute to her sensory overload. The Tribunal is also not satisfied that the Applicant usually requires assistance from her sister or son, or another person to participate in activities of communication including speaking, expressing herself and being understood. The Tribunal is satisfied that the Applicant can effectively communicate, that she can understand people and they can understand her.
The Tribunal is not satisfied that the Applicant is reliant on assistive technology or usually requires assistance in domain of communication. Accordingly, with respect to the domain of communication, the requirements of subsection 24(1)(c) of the Act are not satisfied.
Socialising
The Operational Guidelines set out what socialising is for the purposes of the Act:
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.
The Applicant’s capacity for social interaction is limited by her pain, fatigue, impaired sitting and standing tolerances and her psychological impairments.
At the time of Ms Thompson’s report, the Applicant was leaving the house three to five times a week depending on her level of fatigue, to undertake activities such as attending yoga or hydrotherapy, grocery shopping, attending the local café for coffee, transporting her sons or meeting family members. Despite this level of activity, the evidence is that she does not interact with people socially. She uses pacing techniques to manage her condition for example she will purchase a takeaway coffee to avoid interaction and overstimulation in the café or the Applicant waits in her car until just before her yoga class to avoid interacting with people and conserve her energy for the class. It is the evidence of the Applicant at the time of hearing that she has been more confined to her house due to her conditions, the pain and fatigue which means that she is more isolated.
The Operational Guidelines emphasise whether or not a person has the skills to engage in socialisation and how they behave when they do so, rather than any opportunity for social interaction which may be present in their lives, or any obstacles which make accessing social interaction more problematic for the person.
Ms Thompson reports that the Applicant avoids social interaction as she does not wish to embarrass herself, but on good day she is able to interact appropriately with members of the public. The Applicant has claimed that she can be triggered by other people’s rudeness and respond aggressively, and escalate a situation or lash out. The Tribunal has considered these comments of the Applicant; however, it is not satisfied on the evidence that it is demonstrated that the Applicant behaves inappropriately in a social setting, neither do any of her medical practitioners report her doing so.
It is acknowledged that the Applicant can become overwhelmed easily and worries that she will have difficulties engaging in conversation due to her issues with attention, memory, and information processing. She reports that she has lost many of her friends because she could not do the same things, they did due to her pain and fatigue. She also reports that she felt that she was unable to give what she used to give as a friend who had always been a good listener.
The Applicant has maintained her familial relationships, and she continues to provide care and guidance for her sons. The Tribunal accepts that it is much less frequently than before she developed FND. When assessing the evidence of the Applicant the Tribunal found some inconsistency in the Applicant’s claimed isolation from her family, and her claims that she is reliant on assistance from them, particularly in the domains of learning, communication, and self-management. The evidence is that the Applicant will communicate weekly with family over texts, every couple of weeks (as opposed to weekly at the time of Dr Gill’s assessment) she will meet her sister for coffee at a café at a local shopping centre, she visits her sister Renee or her sister visits her, she will speak on the phone to her mother two or three days per week, she will visit her parents occasionally with her sister due to the distance. She is in regular communication with family members, indicating that she is able to maintain relationships.
It is accepted on the evidence that the Applicant has difficulty with socialising, and she has reduced functional capacity for this activity. Ms Thompson reports that the Applicant requires moderate guidance for social situations.[32] At hearing when asked to comment on the moderate guidance that the Applicant required, Ms Thompson said that it would be to encourage the Applicant to attend a venue and to assist her to engage in conversation with other people. It was with group conversations with people talking all the time that Ms Thompson’s opinion she said that the Applicant would have a significant amount of difficulty. However, the applicant could do an individual activity in a group setting such as an art class. Something that she was doing as a group without the constant back and flow of conversation.
[32] JTB1 417
Even accepting that the Applicant has the above difficulties and a reduced capacity and that she would benefit from moderate assistance, which may raise to a higher level in noisy group situations, this does not, in the assessment of the Tribunal, support the finding that the Applicant has a substantially reduced functional capacity in the activity of socialisation as required by s 24(1)(c)(ii) of the Act.
Learning
The Operational Guidelines with respect to learning state as follows:
Learning – how you learn, understand and remember new things, and practice and use new skills.
The Applicant contends that the assistance that she requires to participate or perform a task of learning far exceeds that normally expected of a person her age.
The Respondent contends that the evidence does not suggest that the Applicant is not independent in the activity of learning.
Ms Thompson reports in the WHODAS assessment undertaken that the Applicant’s learning capacity is impacted to the extent of disability percentages of 58.33 % within the domains of Understanding and Communicating, and that, in particular, she experienced severe difficulties concentrating for longer than 10 minutes, moderate difficulties remembering important information and learning a new task, and severe difficulties generally understanding what people say.[33]
[33] JTB1 p. 417
Ms Thompson further reported that, during her assessment, the Applicant was observed to have difficulties with attention and memory. She required moderate guidance in the way of repeated instructions to complete a task and was observed to refer back to the instructions of a questionnaire 5 times in order to complete it. During one activity, the Applicant completed the task incorrectly despite repeated instructions and clarification. There were also occasions where the Applicant would lose her train of thought taking considerable effort to recall the question she was asking. Across the course of her assessment (approximately 2 hours), it was evidence that the Applicant’s cognitive performance fatigued.
The Tribunal notes that the Applicant has had the capacity to undertake her Pain Management course with Macquarie University requiring the completion of tasks for five to six hours per week with minimal online support. Dr Gill had further assessed mild cognitive issues.[34]
[34] JTB1 p 18
Overall, the evidence is supportive of a conclusion that the Applicant’s capacity for recall and learning have diminished as a consequence of her conditions. However, it is also noted that the Applicant is independent in planning tasks such as negotiating public transport for the purposes of travel — formerly to the Fiona Stanley Hospital for hydrotherapy as well as to the Tribunal premises on repeated days for the purposes of the hearing — she manages her own finances, her own medication, the treatment schedules for her sons and her household shopping and meal planning. She will constantly check but can follow a simple recipe to prepare meals. There is no evidence that she was not oriented to date and day, particularly given that she also manages her sons’ schedules.
The Tribunal is not satisfied on the evidence that it is demonstrated that the Applicant has a substantially reduced functional capacity in this domain, and s 24(1)(c)(ii) of the Act is not satisfied.
Mobility
The Operational Guidelines 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.
The concept of mobility in the Act refers to how a person moves around their home and uses their arms and legs to undertake the ordinary activities of daily living. It also refers to what a person physically can do, as opposed to what they actually do. Doing activities slower than a normal person, or in a modified way, does not mean that a person has a significantly reduced functional capacity.
In Madelaine and National Disability Insurance Agency,[35] the Tribunal considered the threshold for functional capacity in mobility, and decided that a person has functional capacity in mobility if they can “move about their home, get in and out of the bed or chair, and mobilise in the community.”[36] It acknowledged that the threshold is a modest one, which only involves short distances around a person’s home and around community facilities once they are transported there. Further, it came to the view that “significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park.”[37]
[35] [2020] AATA 4025.
[36] Ibid [104] (DP Humphries).
[37] Ibid [105] (DP Humphries).
The Operational Guideline does not specify ability to walk a particular distance as a definition of the level of mobility. However, as Deputy President Humphries pointed out in Madelaine & National Disability Insurance Agency:[38]
… It seems reasonable to suggest that a person who can travel 50 metres by herself has the capacity to do the things referred to in the Guideline. That view would be consistent with the decisions of the Tribunal in Holmes and MHZQ…
[38] [2020] AATA 4025, [106] (DP Humphries).
As to the Applicant’s mobility around her home and community. Ms Thompson documented that at the time of her report that the Applicant reported on a good day she could manage 20-30 minutes of walking at 50 to 100 metre intervals with rest breaks in between each effort. On her good days, the Applicant would do such things as the grocery shopping, or attend hydrotherapy at the Fiona Stanley Hospital. The Applicant reported to Ms Thompson that she would lean her body on a trolley to steady herself. Dr Gill also reports the Applicant’s use of a shopping trolley for support and stability due to lower limb issues.
At the time of Ms Thompson’s report, the Applicant was on average leaving the house for a short trip (five to six days per week), such as to pick up a takeaway coffee or attend an appointment with her GP. These activities were reported to require significantly less walking (perhaps up to 100m) which the Applicant could manage despite high levels of pain.
During her assessment, the Applicant was observed to walk independently within her home and occasionally reach for a wall or piece of furniture to steady herself.
On an average day, the Applicant’s mobility was reported to be limited to household distances. Ms Thompson also corroborates the Applicant’s evidence as to her sitting and standing tolerances and documents that at best, sitting tolerance is 30 minutes and maximum standing tolerance is 10 to 15 minutes before the Applicant’s back seizes up and she must recline or lie down to ease the pain.
The independent evidence of Professor Walterfang was that the Applicant’s level of impairment had remained relatively static since 2018, however there has been some note of worsening hand pain and utility, and increased pain in the feet developing over the last six months. In the twelve months that elapsed since his assessment and the Tribunal hearing, the Applicant records in her statement, and has maintained in her evidence at hearing, that there has been a further decline in her condition. The Tribunal has weighed the opinion of Ms Thompson that such decline was not unexpected given the fatigue associated with the Tribunal hearing and the lack of intervention.
The evidence is at the time of hearing that the Applicant will use a walking stick at times when walking and also that from the beginning of 2024 she has been using a four wheeled walker. It is the evidence of the Applicant that her walker had been recommended to her by health practitioners in the past and she had adopted the use of a walker on the advice of her clinical psychologist, Ms Byrnes.
The Applicant claims to use the walker to assist with walking and also to sit when she needs to rest when she has to move around. She writes that she uses the walker every day for moving around the house. She sits on it when talking to her sons, or moving around the kitchen. She will sit while doing the dishes or rests on it while cooking. The Applicant also uses it when undertaking other domestic tasks around the home like folding washing. On this evidence, the use of the walker around the Applicant’s home appears to be address her fatigue associated with her FND and SSD.
Up and down the passage to the front of her house, the Applicant reports that she uses her walking stick and occasionally, approximately two days per week she may be able to do this without a stick but will rely on walls or furniture to steady herself.
As to the use of her upper limbs, the evidence before the Tribunal is that the Applicant experiences weakness due to pain and fatigue. Additionally, she has altered sensation and spasms in her right upper limb, particularly her hand. Dr Devin Hare assessed a loss of grip strength in this dominant right limb. Ms Thompson assessed the Applicant’s capacity for lifting and carrying to be significantly restricted by pain and fatigue, reaching movements also significantly aggravate her pain. The most that the Applicant could lift on a good day was assessed as 1-2 kilograms, also noting that intermittent loss of strength in the Applicant’s right hand can cause her to drop things, overpour ingredients and hazards in managing items such as pans and saucepans.
The Applicant is independent in driving, she has had no modifications to her vehicle. She reported to Ms Thompson that her maximum driving distance was 17 kilometres, however the Tribunal notes that the Dr Gill reports a driving tolerance of 30 minutes and the Applicant set out in her statement that she was once a month able to driver her son 20 minutes to his psychologist appointment and return. The Applicant can also access public transport which she used to do when attending hydrotherapy at the Fiona Stanley Hospital and also undertook for the purposes of the Tribunal hearing.
The Tribunal has considered whether the Applicant’s reliance on her walking stick, walking frame or shopping trolley could be characterised as assistive technology or equipment. While the walking stick and shopping trolley may be a commonly used item, the Tribunal is not satisfied that this is the case for the Applicant’s four wheeled walker. The evidence is that the Applicant relies on this to mobilise within her home and outside in the community. It assists her with balance due to her issues with her right quadricep deficiency and spasticity, and provides a platform for her to rest after walking around 50 metres. The Applicant adopted the use of the four-wheel walker on the recommendation of Ms Byrnes. Ms Thompson, in her report, recommends greater support and that the Applicant use a motorised scooter to access the community.
The Tribunal in Sheldon[39] and Gardner[40] also considered the use of a four wheeled walker and determined that it was not a commonly used item. In Beaumont,[41] the Tribunal found that a light-weight aluminium folding chair, which was utilised for the purpose or function of enable a person to travel longer distances with a safe place to rest was assistive in nature like a walker. The Tribunal has also formed the view that the four wheeled walker utilised by the Applicant with a built-in seat, is not a commonly used item.
[39] Sheldon and National Disability Insurance Agency [2018] AATA 2560
[40] Gardner and National Disability Insurance Agency [2023] AATA 1287.
[41] Beaumont and National Disability Insurance Agency [2024] AATA 891.
The Tribunal has also considered the meaning of effectively and completely, and has had regard to the reasoning of the Full Court of the Federal Court in Foster, that a person will not necessarily have a substantially reduced functional capacity simply because one task is the relevant domains is unable to be completed without assistive technology, the significance of the task to the overall concept of the activity is also relevant.[42] The evidence is that, while the Applicant may be able to access areas of the community by driving and using public transport in terms of mobilising inside and outside the home, she is now substantially reliant on her four wheeled walker. She swaps the walker for a shopping trolley when undertaking grocery shopping, and the Tribunal notes a similar function in relation to stability for the Applicant when mobilising. While on a good day the Applicant may be able to mobilise the short distance from her ACROD car space to her GP without it, this is not an average day for the Applicant, and given the reported fluctuating nature of her condition, the Tribunal is satisfied that it is not a device that the Applicant reserves only for extended travel or ‘as required’. The Tribunal also considered that walking around her home and the community is an essential part of the domain of mobility. Consequently, the Applicant’s reliance on this equipment indicates that the Applicant’s impairments, as a consequence of her FND and SSD, cause her to have a substantially reduced functional capacity in the activity of mobility. It making this assessment the Tribunal notes the opinion of Professor Walterfang that her mobility is impacted by both of the Applicant’s conditions of FND at 80% and SSD at 20%. [43]
[42] Foster (n 27), [88].
[43] JTB1 323

It follows that the Tribunal is satisfied that the Applicant is unable to participate effectively or completely in the activity, or perform the tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology equipment (other than commonly used items). Rule 5.8 (c) of the Access Rules is met.
The Tribunal makes this finding notwithstanding the suggestion that there may have been some deconditioning of the Applicant due to the stress of the Tribunal hearing. For, when the Applicant’s total capacity in respect of mobility is assessed, particularly having regard to the evidence of the significant difficulty reported for the Applicant in the use of her upper limbs to undertake tasks of lifting and carrying, and fine motor activities with her right arm, the Tribunal is satisfied that, although she has good days, on most average days the Applicant would still have a substantially reduced functional capacity in the domain of mobility.
The impairment of the Applicant’s functional capacity in this domain is substantial as required by s 24(1)(c)(ii) of the Act.
Self-care
In respect of the domain of self-care, the Operational Guidelines state;
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.
In her statement, the Applicant acknowledges that she completes her own self-care and the cleaning, and also cares for her sons, slowly and with many rests.[44] She prepares food for herself and her sons, although it can be difficult as her hands get sore, become painful and fatigued. Her hand can also spasm. The Applicant cleans the house with the assistance of a robot vacuum cleaner. However, she can manage light cleaning which includes the bathrooms, mopping and wiping of benches.
[44] Applicant’s Witness Statement submitted 3 May 2024 (A1, 5).
Ms Thompson also indicates that the Applicant is independent with self-care activities including toileting, showering, eating, meal preparation, shopping, and cleaning.
While the evidence indicates that the Applicant does experience some difficulties in self-care with heavy carrying and cleaning, and washing her hair or preparing meals due to her hand issues. Largely the Applicant is independent in the aspects of self-care and can complete most tasks of self-care including cleaning, shopping, and meal preparation in a modified manner. The Tribunal takes note that the Applicant is able to care for herself and provide care for her children.
The Tribunal is not satisfied, given the degree with which the Applicant undertakes the tasks of self-care that the impairment of her functional capacity in this domain is substantial as required by s 24(1)(c)(ii) of the Act.
Self-Management
In respect of the domain of self-management, the Operational Guidelines provide 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.
The Tribunal notes the Applicant’s claim that she is consistently double-booking appointments or forgetting to put them in the calendar. It has balanced this with the evidence of Profession Walterfang that the Applicant also self-reported being generally good with appointments but needed memory aids to ensure that this occurs. The Tribunal considers that memory aids in the form of calendars and electronic reminders are commonly used items.
Dr Gill reports that the Applicant was independent in financial management and with computer and mobile phone use.
Ms Thompson comments that the Applicant was generally able to make routine decisions, but required high-level guidance to problem solve complex issues (such as navigating the AAT process). Ms Thompson further assesses that the Applicant requires moderate guidance for attending appointments to assist with retention of information and moderate guidance for complex financial management.
In her statement and at the hearing the Applicant highlighted her current reliance on the assistance of others. The Tribunal notes her claims that her father helps her with financial planning, and she will seek advice from her sister and son Aaron with day-to-day finances. She will rely on the advice of her sister, and she claims that it takes her a long time to think through problems. Her sister also helps her with decisions in relation to her sons and their support. She claims that it is really difficult for her to manage her life herself, and she needs family to help her through decision-making.
The Tribunal has difficulty in reconciling the Applicant’s claimed reliance on family members for self-management with her claims of social isolation from family members and their support. There is no evidence before the Tribunal from her family members to corroborate the support that they provide. It is not satisfied that it is something the Applicant usually requires or that this claimed assistance falls within the deeming provisions of r. 5.8(c) of the Access Rules.
The Tribunal acknowledges the difficulties that the Applicant encounters. For the solving of complex issues such as managing the review process before the Tribunal and financial settlement on the breakdown of a marriage, many people require support, even high level professional support. It is also accepted that there is normative family support at times for the Applicant when making important decisions, yet the evidence is that the Applicant is generally able to make routine decisions, manage her own medication and that of her sons, provide guidance to her sons, and she requires only moderate guidance for complex financial management.
The Tribunal is not satisfied that the impairment in her functional capacity in this domain is substantial, and s 24(1)(c)(ii) of the Act is not satisfied.
Consequently, the Tribunal is satisfied based on the evidence before it that the context of the tasks and activities of mobility, the Applicant’s impairments substantially reduce her functional capacity. Due to a combination of pain, fatigue, lower limb spasticity, compromised strength in her right leg, bilateral pins and needles and electric shock sensation, the Tribunal is satisfied that the Applicant meets subsection 24(1)(c)(v) of the Act in relation to mobility.
Is the Applicant likely to require support under the NDIS for her lifetime?
The Respondent has not specifically addressed this criteria, rather relied on a position that, as a consequence of not satisfying subsection 24(1)(c) of the Act, it would not be necessary for the Tribunal to consider this criteria.
In the opinion of Professor Walterfang the condition of the Applicant was highly guarded, and he noted authorities to the effect that the overall prognosis of motor symptoms in FND appear unfavourable. It is the Applicant’s motor symptoms in which the Tribunal has assessed that she has a substantially reduced functional capacity. Ms Thompson, in her evidence to the Tribunal, stated that intervention was more about preventing further decline, and that no one she had worked with improved to the extent that they needed no support.
The Tribunal has also had regard to the evidence of Ms Thompson that she hoped, at best, and with considerable intervention, that the Applicant may need to rely on her walker less. In this regard, the Tribunal is satisfied that the evidence is that the Applicant has, to the best of her capacity, tried to prevent her physical decline through gym visits which have reduced to monthly, and her GP referred physiotherapy sessions of five per annum without success. Further she has not had the capacity to continue to engage with hydrotherapy. Despite intervention to date, the evidence is that she has continued to decline. It does not appear that her active treatment regime to date has changed this.
In assessing the Applicant’s functional capacity in mobility, the Tribunal has considered the use of all her limbs, and it is satisfied that, even if her reliance on the walker was less than what it currently is, the Applicant remains substantially functionally impaired.
The Tribunal is satisfied that the evidence indicates the Applicant is likely to require support her lifetime under the NDIS.
The Tribunal finds that the Applicant meets the requirements of paragraph 24(1)(e) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the Applicant meets the disability requirements set out in section 24 of the Act.
As the Applicant meets the disability requirements it is not necessary for the Tribunal to consider whether she meets the early intervention requirements.
Accordingly, the Tribunal finds that the Applicant meets the access criteria set out in section 21 of the Act.
DECISION
The decision under review is set aside and, in substitution, the Tribunal decides that the Applicant meets the access criteria under section 21 of the National Disability Insurance Act 2013 (Cth).

I certify that the preceding 190 (one hundred and ninety) paragraphs are a true copy of the reasons for the decision herein of Member P Hunter

............................[SGD]............................................
Associate
Dated: 09 August 2024

Date(s) of hearing: 6 and 7 May 2024

Solicitors for the Applicant: Ms C Faulkner, Legal Aid WA

Counsel for the Respondent: Ms A Douglas-Baker

Solicitors for the Respondent: Ms T Martin, Sparke Helmore

[2024] AATA 2854

9 August 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date(s) of hearing:	6 and 7 May 2024
Solicitors for the Applicant:	Ms C Faulkner, Legal Aid WA
Counsel for the Respondent:	Ms A Douglas-Baker
Solicitors for the Respondent:	Ms T Martin, Sparke Helmore