Cooper and National Disability Insurance Agency

Cooper and National Disability Insurance Agency [2024] AATA 420 (12 March 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME
File Number(s): 2021/3852
Re:Belinda Cooper
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President Mischin
Date:12 March 2024
Place:Perth

The decision under review is affirmed.
........................ [Sgd]................................................
Deputy President Mischin
CATCHWORDS
NATIONAL DISABILITY INSURANCE AGENCY – access to scheme – disability requirements – Obesity – sleep apnoea – vertigo and dizziness – ovarian cysts and endometriosis – past diagnosis of Burkitt’s Lymphoma – lumbar back pain – whether the Applicant meets the disability requirements in section 24 or the early intervention requirements in section 25 of the National Disability Insurance Scheme Act 2013 (Cth) – whether conditions/impairments are permanent – whether the applicant’s impairments result in substantially reduced functional capacity to undertake one or more activities listed in section 24(1)(c)
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) sections 18, 20-25, 27, 99, 100(6), 100, 103, 209
National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) rules 5.4-5.8, 6.1-6.9
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Madelaine and National Disability Insurance Agency [2020] AATA 4025
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
Nika and National Disability Insurance Agency [2021] AATA 2127
Rooney and National Disability Insurance Agency [2021] AATA 3523
Schwass and National Disability Insurance Agency [2019] AATA 28
SECONDARY MATERIALS
National Disability Insurance Scheme – Operational Guidelines – Access
National Disability Insurance Scheme – Operational Guidelines – Applying to the NDIS
REASONS FOR DECISION
Deputy President Michael Mischin
12 March 2024
BACKGROUND

The Applicant is a 45 year old non-binary person[1] who seeks access to the National Disability Insurance Scheme (NDIS or the Scheme). The Applicant has a number of conditions including bipolar disorder, post-traumatic stress disorder, depression, anxiety, obesity, sleep apnoea, vertigo and dizziness, ovarian cysts and endometriosis, past diagnosis of Burkitt’s Lymphoma, and back pain in the lumbar region from a potential L4 nerve impingement.
[1] At the hearing, the Applicant advised that she was agreeable to being addressed as ‘Ms’ and so, for convenience and clarity, will be referred to as ‘she’ and ‘her’ for the purposes of these reasons.
On 5 February 2021, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA or Agency) decided under section 20 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) to refuse the Applicant’s request for access to the NDIS (the Reviewable Decision) on the basis that the Applicant did not meet all the statutory criteria for access to the Scheme.
On 19 February 2021, the Applicant sought, under section 99 of the NDIS Act, an internal review of the Reviewable Decision.
On 17 May 2021, a delegate of the CEO made an internal review decision under section 100(6) of the NDIS Act confirming the Reviewable Decision. The delegate found that the Applicant satisfied the age requirements (section 22 of the NDIS Act) and the residence requirements (section 23), but not the disability requirements (section 24) or the early intervention requirements (section 25).
On 11 June 2021, the Applicant lodged an application to the Tribunal seeking a review of the Reviewable Decision denying her access to the NDIS.
LEGISLATIVE FRAMEWORK
By section 18 of the NDIS Act, a person may make a request to the Agency to become a participant in the Scheme, which access request must be considered by the CEO.[2] A person can become a participant if they meet the ‘access criteria’ identified in section 21(1); namely, 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).
[2] NDIS Act s 20.
The Respondent accepts that, for the purposes of section 21(1), the Applicant meets the age requirements and residence requirements of sections 22 and 23 of the NDIS Act.
However, at the time of the application for access and the making of the decision under review, section 24(1) of the NDIS Act provided that:
(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 to one or more impairments attributable to a psychiatric condition; 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, or psychosocial functioning in undertaking, 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.
In the alternative to the disability requirements, a person may meet the access criteria under section 21(1) if the person satisfies the early intervention requirements under section 25. At the time of the application for access and the making of the decision under review, section 25(1) of the NDIS Act provided that:
(1)A person meets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Accordingly, the matters in issue are whether the Applicant satisfies either the disability requirements in section 24 or the early intervention requirements in section 25.
Rules to govern decision-making about access to the Scheme and other matters can be made by legislative instrument under sections 27 and 209 of the NDIS Act. Relevant to this application are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Rules).[3]
[3] Exhibit R1, T31, 108-139.
Relevantly, the Rules provide as follows regarding the disability requirements:
When is an impairment permanent or likely to be permanent for the disability requirements?
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.
5.5An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
(Paragraphs 5.4 to 5.7 are made for the purposes of paragraph 27(a) of the Act.)
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, 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.
(Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.)
As to the early intervention requirements, the Rules provide as follows:
6.1A person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is more appropriately funded or provided through another service system (service systems is defined in paragraph 8.4) rather than the NDIS.
6.2However, a person meets the early intervention requirements if:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent (see paragraphs 6.4 to 6.7); or
(ii)has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent (see paragraphs 6.4 to 6.7); or
(iii)is a child who has developmental delay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability (see paragraphs 6.8 to 6.11); 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 (see paragraphs 6.8 to 6.11).
6.3This Part sets out rules relating to some of the elements in paragraph 6.2 above, however, in order to meet the early intervention requirements, all of the requirements in that paragraph need to be satisfied.
(Paragraph 6.1 summarises subsection 25(3) of the Act. Paragraph 6.2 summarises subsection 25(1) of the Act.)
When is an impairment permanent or likely to be permanent for the early intervention requirements?
6.4An impairment is, or is likely to be, permanent (see paragraphs 6.2(a)(i) and (ii)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
6.5An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity may improve.
6.6An 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).
6.7If 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.
(Paragraphs 6.4 to 6.7 are made for the purposes of paragraph 27(a) of the Act.)
Deciding whether provision of early intervention supports is likely to benefit the person
6.8Where paragraph 6.2(a) applies to a person, the main way in which the CEO can determine whether the provision of early intervention supports is likely to benefit the person in the ways set out in paragraphs 6.2(b) and (c) above is to consider evidence going to those matters, as indicated in paragraph 6.9 below. However, young children who have an impairment resulting in developmental delay (see paragraph 6.10) or resulting from a particular condition (see paragraph 6.11) will not need to provide further evidence of the matters in paragraphs 6.2(b) and (c).
(Paragraph 6.8 is made for the purposes of paragraph 27(d) of the Act.)
Where evidence is required
6.9In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:
(a)the likely trajectory and impact of the person's impairment over time; and
(b)the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c)evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
(Paragraph 6.9 is made for the purposes of paragraph 27(d) of the Act. It does not compel the CEO to take the actions mentioned in that paragraph in any particular instance.)
The NDIA has made several operational guidelines for the application of the NDIS Act and its Rules. The operational guidelines represent government policy and, to the extent that they are consistent with the relevant legislation, should be applied by the Tribunal unless there is a sound reason not to do so.[4]
[4] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Madelaine and National Disability Insurance Agency [2019] AATA 4025 (Madelaine) at [9].
Guidelines applicable at the time of the decision under review included the ‘National Disability Insurance Scheme – Operational Guidelines – Access’.[5] By the time of the hearing, these had been replaced by the guideline ‘Applying to the NDIS’ dated 1 July 2022 (Applying Guideline).[6] That has since been replaced by the ‘Applying to the NDIS’ guideline of 26 June 2023, and the ‘Applying to the NDIS’ guideline of 22 December 2023. To the extent relevant to this application, there is no material difference between the guidelines of 1 July 2022, 26 June 2023, and 22 December 2023.
[5] Exhibit R1 T32, 140-204.
[6] Exhibit R2 Document 9 205-215.
The Applying Guideline, relevantly, provides as follows:[7]
[7] Ibid 206-214, Applying Guideline 2-10.
Does your impairment substantially reduce your functional capacity?
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
·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.
·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.
·Learning – how you learn, understand and remember new things, and practise and use new skills.
·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.
·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.
·Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.
These disability-specific supports include:
·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.[i]
·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
To help us decide if you’re eligible, we need to know your capacity and where you need more help. We get this information from your NDIS application.
If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.
We consider how you’re involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day to day life.
Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.
…

I shall consider the Act, Rules and Applying Guideline in due course.
ISSUES FOR DETERMINATION
The Respondent accepts that the Applicant has been diagnosed with:
(a)Bipolar disorder;
(b)Post-traumatic stress disorder (PTSD);
(c)Depression;
(d)Anxiety;
(e)Obesity;
(f)Sleep apnoea;
(g)Vertigo and dizziness;
(h)Ovarian cysts and endometriosis;
(i)A past diagnosis, in 2006, of Burkitt’s lymphoma; and
(j)Back pain in the lumbar region, from a potential L4 nerve impingement.
The Respondent accepts that the Applicant satisfies section 24(1)(a) in respect of (a) bipolar disorder, (b) PTSD, (c) depression, and (d) anxiety: in short, that the Applicant has a disability attributable to one or more impairments attributable to a psychiatric condition.[8]
[8] Respondent’s Statement of Facts, Issues and Contentions dated 21 October 2022 at [23(a)].
The Respondent also accepted that (j), the Applicant’s back pain in the lumbar region, was a disability attributable to a physical impairment and so satisfied section 24(1)(a).[9] However, the Applicant advised during the hearing that she was no longer relying on her back pain and nerve pain as a basis for entry into the Scheme.[10]
[9] Ibid at [23(b)].
[10] Transcript 35.
The Respondent does not accept that the requirement of section 24(1)(a) is met in respect of the balance of the Applicant’s conditions, (e) to (i), because:
(a)there is no evidence to suggest that these conditions currently cause any reduction or loss in the Applicant’s ability to do things across any life domain;[11] or
(b)in the case of obesity, it is not itself an impairment, but a description of the Applicant’s body weight and does not necessarily entail a loss of or damage to a physical, sensory or mental function.[12]
[11] Respondent’s Statement of Facts, Issues and Contentions dated 21 October 2022 at [24(a)].
[12] Ibid at [24(b)].
The Respondent does not accept that any of the Applicant’s impairments or conditions referred to in paragraphs 18-19 supra:
(a)are permanent for the purpose of section 24(1)(b);[13] or
(b)substantially reduce her functional capacity to undertake any of the activities specified by section 24(1)(c).[14]
[13] Ibid at [25]-[27].
[14] Ibid at [28]-[29].
The Respondent goes on to contend that, because these are not met, the Applicant does not satisfy the requirements of section 24(1)(d) (affected capacity for social or economic participation) or section 24(1)(e) (the likelihood she will require support from the NDIS for her lifetime).[15]
[15] Ibid at [30]-[31].
Finally, the Respondent does not accept that the Applicant meets the early intervention requirements under section 25, as the evidence does not establish that:
(a)The Applicant’s impairments or conditions are permanent as required by section 25(1)(a);[16] and
(b)early intervention supports:[17]
(i)are likely to benefit the Applicant by reducing her future needs for supports in respect of her disability, as required by section 25(1)(b); and
(ii)will have one of the benefits contemplated by section 25(1)(c).
[16] Ibid at [33(a)].
[17] Ibid at [33(b)].
The Applicant’s advice that she is no longer relying on her back pain and possible lumbar spine nerve impingement as a basis for her disability focusses the Tribunal’s inquiry into whether her psychiatric condition qualifies her for entry into the Scheme.
EVIDENCE
The application was heard by the Tribunal on 21 March 2023. The Applicant was unrepresented. She, her supporters, and a witness called by the Respondent, Occupational Therapist Jayne Cruttenden, attended via audio-visual link. The Respondent’s counsel, Mr French, attended in person.
The Tribunal was provided with a tender bundle incorporating the T-documents.[18] A further ‘evidence bundle’ was provided at the hearing,[19] as was a Professional Profile for Ms Cruttenden.[20] All materials were admitted into evidence, albeit subject to submissions regarding relevance and the weight to be accorded to evidence. The documents admitted into evidence included:
(a)A NDIS ‘Supporting Evidence Form’ completed by Clinical Psychologist Linda Welsh dated 29 June 2020,[21] and reports from her dated 26 February 2020,[22] 9 April 2020,[23] 23 February 2021,[24] and 1 September 2022;[25]
(b)A NDIS ‘Supporting Evidence Form’ completed by General Medical Practitioner Dr Asiri Baduge dated 3 January 2021;[26]
(c)A ‘Letter of Support’ from Psychosocial Recovery Coach and Support Worker Mandi Whyte dated May 2021;[27]
(d)A ‘Letter in support of NDIS access request’ from Senior Occupational Therapist Heidi Perera dated 27 October 2021;[28]
(e)A letter of Consultant Psychiatrist Professor Sean Hood of Marian Centre dated 19 November 2021;[29] and
(f)An ‘Occupational Therapy Functional Assessment’ report of Occupational Therapist Jayne Cruttenden dated 1 March 2022.[30]
[18] Exhibit R1; Transcript 20.
[19] Exhibit R2; Transcript 20.
[20] Exhibit R3; Transcript 65.
[21] Exhibit R1 T1C 11.
[22] Exhibit R1 T1A 8.
[23] Exhibit R1 T1B 9.
[24] Exhibit R1 T1D 18.
[25] Exhibit R2 Document 3 9-12.
[26] Exhibit R1 T1E 20-26.
[27] Exhibit R1 T1F 27-31.
[28] Exhibit R2 Document 1 3-6.
[29] Exhibit R2 Document 2 7-8.
[30] Exhibit R2 Document 5 17-32.
The Applicant gave oral evidence at the hearing and was cross-examined by Mr French. None of the report writers were called to give evidence other than Ms Cruttenden. Other than the Applicant and Ms Cruttenden, no other witnesses were called to give evidence or speak to their reports.
The parties filed written submissions following the hearing.
I have considered the relevant factual and expert evidence and refer to parts of the evidence in these reasons.
FACTS
The Applicant
The Applicant testified that she lived in a unit in government housing in South Perth.[31]
[31] Transcript 5.
The Applicant was just commencing her career as a schoolteacher in 2006 when she was diagnosed with Burkitt’s Lymphoma, a rare and fast-acting blood-based cancer that almost escaped timely diagnosis – ‘most people die in the first two weeks of diagnosis’.[32] Despite organ failure, [33] she survived and has been ‘in remission for over a decade now, officially about six years’.[34] It appears that it is not a cancer that recurs and she is at no further risk from it.[35]
[32] Ibid 7.
[33] Ibid 6-7.
[34] Ibid 7.
[35] Ibid.
The Applicant’s current health problems began just after surviving cancer, and she attributes them to the long-term consequences of her chemotherapy.[36] The Applicant’s chemotherapy took various forms, including the administration of steroids. Injections directly into her spine resulted in nerve damage. Her mental stability was a casualty of her condition and chemotherapy treatment.[37]
[36] Ibid 5.
[37] Ibid 6.
Although after overcoming cancer the Applicant resumed teaching in 2007 and for several years, her mental health declined until it was ‘not appropriate’ for her to teach any more:[38]
… within one year of surviving cancer, one to two years after that I was diagnosed with bipolar and I had rapid mood disorder, meaning I would have a manic state and a depressive state in about 15 to 20 minutes and as a school teacher it meant I couldn’t maintain things … because it was rapid swing bipolar, I didn’t have control about the consistency of having an even keel for my students, which made it difficult to control my classroom and it also made it difficult to control a professional environment … I was talking about inappropriate things to other staff members.[39]
[38] Ibid 5.
[39] Ibid 6.
When in a manic state, the Applicant would lose control of what she was saying, doing, and how she was spending money. She sought help and ‘treatment’, but this had the side-effect of tiredness. She would drive to work when she shouldn’t have and put herself in risky situations.[40]
[40] Ibid 8.
The Applicant said she was ‘made redundant’ and has been on a disability pension since 2010. She tried to push herself to study, and for several years tried to study part-time, but eventually realised study was making her sick and had to accept that she ‘was unable to get back to my life before all this happened’.[41]
[41] Ibid.
The Applicant focuses now on making sure she is as much as possible in ‘control of my environment and my mental health’ but never has complete control over it. She recounted how the receipt of an unexpected letter from the NDIA in January before the hearing had triggered a ‘manic episode’ and how, despite having as many things in place as possible to make her ‘environment safe’, it only took ‘one outside incident to wreck all my careful work and I have to spend months trying to fix [it]’.[42]
[42] Ibid.
The manic episode in January resulted in her impulsively spending money she didn’t have. The strategy for addressing impulsive spending involves her quarantining her income in a bank account that requires certain formalities to be met before money can be withdrawn. It was one of the processes that she had put in place to manage her impulsiveness as a manic reaction to stress. She gave other examples of impulsiveness resulting from her bipolar condition.[43] The Applicant credits her psychologist, Ms Welsh, for educating her in the therapies she applies to deal with these episodes.[44]
[43] Ibid 9.
[44] Ibid 8.
The Applicant described her current situation as:[45]
I have positive influences and negative influences, both can increase, my main is depression or anxiety or panic attacks so negative relationships with people, a negative event can trigger a response that can trigger a mania. A positive thing like spending – going out seven days in a row can send me manic, so I have to manage my time so I have the right amount of interaction with people but have the right amount of days of rest so I can keep things on an even keel. So I am limited of what I can do. To manage distressful situations or anxiety during the day I will use – I was an art teacher so I have a lot of art crafts background so I will focus on my art project for 24 hours or more to focus my brain outside my body, which means anything household has to be neglected, which makes it hard. And also I have to manage by going into reading a lot or something like that. Basically it’s not something to enjoy, it’s something to manage in that respect … and so I’m very much in the house a lot because I can’t go out all the time and I have to go – if I do go out, to go to certain events and like kind of – so what has been happening for the last year and-a-half is my partner, Doug, has been taking me to the pool once a week and that has been a mental health boost, a physical health important and it’s something I need to do more to have a better management – better management of my health but I can’t do it too much because it will exhaust me at the same time.
[45] Ibid 10.
The Applicant says that she suffers from a complex combination of symptoms which can be overwhelming and put pressure on her mental health. She experiences ‘extreme’ chronic pain due to nerve damage in her spine from her cancer treatment which, combined with fatigue, requires her to rest frequently and results in exhaustion.[46]
[46] Ibid 11.
The Applicant experiences vertigo and ‘brain fog’ as side-effects from the medications she is prescribed for her bipolar disorder. Another is an ‘addiction level’ craving for sugar, which is ‘hard to manage’. She has ‘food trauma’ due to ‘chronic nausea’, resulting in an aversion to cooking and eating certain foods.[47]
[47] Ibid.
The Applicant said she tries to manage her weight, but her mental health suffers if she does not take the bipolar medications that, as a side-effect, encourage weight gain.[48]
[48] Ibid.
The Applicant does hydrotherapy exercise at a swimming pool, which enables her to ‘walk’ and do some physical activity, which helps her mental wellbeing. She had been given a list of exercises to do in a hydrotherapy pool as physiotherapy treatment for her lower back but was limited in being able to participate in formal courses due to her being overweight. The Applicant sometimes still does these.[49]
[49] Ibid 29.
As painkillers can only do so much, and can result in side-effects and addictions, the Applicant undertakes pain management techniques advised by a pain management centre psychologist.[50]
[50] Ibid 11.
Aside from prescribed medications, the Applicant considers that she has ‘exceptional, excellent skills’ to manage her bipolar disorder,[51] using schema therapy her psychologist has taught her since 2009 to manage her emotions and upon which she relies every day to ‘get her through’. The Applicant estimates that schema therapy helps her manage about 25% of her bipolar disorder and medication about another 50%: the remainder nothing helps with, and if a destabilising event occurs, she must ‘work her way out’ of it. Without schema therapy she may not be compliant with medications.[52]
[51] Ibid 26.
[52] Ibid 27.
The Applicant had been an active person who had previously been able to run workshops for others and enjoy craftwork and cooking, but now cannot ‘physically’ do so. She would like to be ‘more independent, more able to like run a workshop like I used to, more able to do up stuff, more able to do physical activities with my body and more able to … go out and you know, to a shopping centre and not having to buy things online’.[53]
[53] Ibid 18.
The Applicant has two partners, Leilu and Doug, both disabled. Leilu is said to be blind and reliant on the Applicant. Leilu was from New Zealand and they had been apart for several years due to COVID-19, but by the time of the hearing she had been in Australia for a year and they were planning to move in together.[54] Doug has a functional neurological disorder resulting in extreme fatigue, and after two hours he can’t really communicate very well. Doug drives the Applicant to a pool for her to do her physical activity, but is exhausted by the time they are driving home and is ‘wiped out for the day’.[55]
[54] Ibid 17.
[55] Ibid 12.
As to mobility, the Applicant ‘usually’ can’t walk far. Walking slowly increases pain in her spine and into her legs, so she will walk fast to reach a destination or a place to sit down. The pain can be such that she has difficulty communicating her thoughts. She has ‘word aphasia’ from exhaustion and bipolar medications.[56] Driving and ‘anything basic’ can be an ordeal.[57] Due to her nerve damage she can only really walk 100 metres and uses a walking cane. She can’t walk around a shopping centre to shop. She considers that to go more than 100 metres she would need a wheelchair.[58]
[56] Ibid.
[57] Ibid 13.
[58] Ibid 11.
The Applicant can drive short distances but finds it exhausting. By way of example, she said that if she were to drive herself to the pool and home, she wouldn’t have the energy to be in the pool, and so requires someone else to drive her there and back. Sometimes the Applicant does too much and overexerts, and by the end of the day is in ‘extreme agony’.[59]
[59] Ibid 13.
The Applicant experiences pain when standing for even short periods such as 30 seconds, with the pain increasing in intensity. It begins in her spine and shoots down to her right knee.[60] She can sit for a while but not for long. She needs to lie down to stretch her leg out and move from sitting to standing to manage the pain. When lying down, the Applicant listens to audio books to keep mentally active and distract herself from her depression. However, she tends to listen to ‘book after book after book’ – this results in not having a regular sleep schedule, which results in her not taking her medications on time, leading to increased mania and efforts to reduce it.[61]
[60] Ibid 13-14.
[61] Ibid 14.
As to household tasks, the Applicant can do things at some height level, like at a bench-top, but not floors. She needs help picking things up from the floor, vacuuming and sweeping. She cannot do things around the house easily.[62]
[62] Ibid 11.
The Applicant said she finds even eating food exhausting.[63] She stands to cook but is limited as to how long she can stand. She relies on Uber Eats.
[63] Ibid 15.
The Applicant can toilet herself and perform other self-care, but ‘can do one thing and then I need to rest … If I’m lucky I can do two things’.[64] As standing is not good for her, the Applicant says she needs help in the shower, such as sitting on a stool when washing her hair. The Applicant becomes exhausted showering, getting dressed and leaving the house.[65]
[64] Ibid.
[65] Ibid 14.
The Applicant said she can’t read books anymore and that while watching movies was once therapeutic, she cannot now do so as suspense increases her anxiety to the point of her having to leave the room.[66]
[66] Ibid 15.
The Applicant’s social life has changed from what it was 10 years ago. She feels isolated because she cannot go out much. She and her partners ‘go out to date nights and have dinner at home and like do jigsaw puzzles and board games’. For a long time, she didn’t want visitors because she didn’t have a clean house. She can no longer visit some people as they live too far away and the drive there and the drive back is too much.[67] The Applicant can and does use social media, and can use a computer, but prefers her telephone.[68]
[67] Ibid 17.
[68] Ibid 18.
She attributes a poor relationship with her family to her bipolar disorder: ‘the hard thing about bipolar is you have no censorship, no way you can tell what you are saying to people’.[69] She would like more ways to physically get out and to do things like shopping, have a house clean enough to have people visit,[70] and to have someone to take her to events and activities,[71] access the wider community and have ‘a positive space to live in, so I can spend my time, working on my craft projects, to deal with everything’.[72]
[69] Ibid.
[70] Ibid.
[71] Ibid.
[72] Ibid.
The Applicant said she can manage her affairs with support. She is on a pension which limits the money she can handle, reducing impulsive spending.[73] Her use of online purchasing tempts her to buy what she doesn’t really need or can afford. She feels guilty not working and it is depressing being unable to earn an income. The Applicant started studying psychology part-time and found the stress increased her bipolar condition. Although she would like to undertake activities ‘to use my brain again’, such as arrange free educational workshops, she is unable to do so due to exhaustion.[74]
Applicant’s Health Professional evidence
[73] Ibid 15.
[74] Ibid 16.
Clinical Psychologist Linda Welsh
Ms Welsh first met the Applicant on 17 March 2009, the Applicant having been referred by her then psychiatrist for assistance with her rapid cycling bipolar disorder and trauma from, inter alia, her cancer treatment. Ms Welsh has been treating the Applicant since then.[75]
[75] Exhibit R2 Document 3 10-12, Report of Clinical Psychologist Linda Welsh dated 1 September 2022.
Ms Welsh completed a Supporting Evidence Form for the Applicant’s application to the NDIS, dated 29 June 2020.[76] She detailed the Applicant’s primary impairment (that is, the one ‘with the most impact on daily life’) as ‘Complex presentation with multiple concurrent physical and psychological conditions, including PTSD, bipolar disorder, sleep apnoea, obesity & nerve pain all having a significant impact on function equally’. Other impairments identified at that time were chronic and crippling nausea, dizziness, chronic fatigue and headaches, an ovarian cyst, and endometriosis, the first four as having ‘a significant impact’.[77]
[76] Exhibit R1 T1C 11-17, Supporting Evidence Form of Clinical Psychologist Linda Welsh dated 29 June 2020.
[77] Ibid 11-12.
Ms Welsh identified the Applicant’s impairments as having a functional impact on her Mobility, Social interaction, Learning, Self-Care, and Self-Management, but not Communication.[78]
[78] Ibid 11-17.

Ms Welsh considered that in respect of these activities, the Applicant required the following assistance:
(a)Mobility:[79] ‘requires shower chair, chair for use in kitchen, wheelchair for prolonged distances walked eg to go shopping, screen reader for visual assistance (NDVA), google home to read things out, car modification for wheelchair, assistance with transport for longer distances as can’t sustain vision/focus when chronically fatigued or nauseous’;
(b)Social interaction:[80] ‘Physical assistance to attend social events & assist whilst at event to gain access to food/drinks etc’; ‘Psychological support ongoing to maintain awareness of mania when present to engage appropriately with friends & assistance with motivation & mood management in depression’;
(c)Learning:[81] ‘technology to assist with reading eg audible & text captioning in TV as struggles with double vision & dizziness’; ‘learn to touch type as cannot rely on being able to read screen’; regular check & update of visual aids/script for glasses’;
(d)Self-Care:[82] ‘food preparation, cleaning, manual tasks that require bending/turning/standing more than 5 minutes’; and
(e)Self-Management:[83] ‘needs assistance with shopping, cleaning, food preparation, food ordering online as gets dizzy & nauseous from computer use longer than 5 mins’; ‘decision making support to assist deal [sic] with mental fatigue when facing the need to delegate, prioritise or plan tasks’.
[79] Ibid 14.
[80] Ibid 15.
[81] Ibid 16.
[82] Ibid 16-17.
[83] Ibid 17.
In her report of 26 February 2020, preceding the Supporting Evidence Form, Ms Welsh advised that in the years that they had been working together the Applicant had made excellent progress, that her psychological skills are exceptional and mood management excellent, and that her mood had been stable for many years.[84] In a report dated 9 April 2020, prepared in support of the Applicant receiving a disability pension, Ms Welsh noted that the Applicant had learned to regulate her emotions and slow the rapid cycling of her mood, and had learned to ask for help and how to create lasting and meaningful relationships.[85] On 23 February 2021, Ms Welsh advised that the Applicant had successfully completed psychological treatment for her bipolar disorder and was managing it very well, and her mood in that regard was generally very stable, although her depression and anxiety were situational and triggered by her ‘permanent’ ‘ongoing physical health issues’ that her treating doctors could speak to.[86]
[84] Exhibit R1 T1A 8, Report of Clinical Psychologist Linda Welsh dated 26 February 2020.
[85] Exhibit R1 T1B 9-10, Report of Clinical Psychologist Linda Welsh dated 9 April 2020.
[86] Exhibit R1 T1D 18, Report of Clinical Psychologist Linda Welsh dated 23 February 2021.
In her most recent report available to the Tribunal, that of 1 September 2022, Ms Welsh responded to a request to comment on the Applicant’s ‘requirements for supports that are not clinical in nature but that would benefit her functional ability and assist her to undertake activities of daily living and participate in the community and social and economic life’. In doing so, Ms Welsh drew on what the Applicant had reported to her; she had not observed the Applicant in her home or completed any physical assessments.[87]
[87] Exhibit R2 Document 3 10, Report of Clinical Psychologist Linda Welsh dated 1 September 2022.
As to ‘early intervention supports’, she opined that the Applicant:[88]
… has significant food traumas and so meal preparation is extremely challenging for her. This impacts the quality of her nutrition and general health. I would recommend that the NDIS assist with food delivery, and/or food/meal preparation with the goal of Belinda obtaining 3 healthy meals per day.
Due to her poor physical health, Belinda struggles to get out of bed some days and also struggles with mobility. I therefore recommend that she receives domestic support with assistance in cleaning, sorting and decluttering.
[88] Ibid 11.
As to the Applicant’s mobility:
… due to her mobility issues, Belinda would benefit from transport and support to access physical activities recommended for her that will assist her general wellbeing and mental health.
As to whether early intervention supports would be like to benefit the Applicant by reducing her future needs for supports in relation to bipolar disorder:[89]
Given that [the Applicant’s] condition is permanent any supports provided would be about reducing the further decline and progression of her mental health concerns. I am certain that without supports, her physical health will continue to decline and this would flow onto her mental health.
The depression phase of her Bipolar disorder makes it extremely difficult for Belinda to leave the house. Having support to leave the house would be an important step in managing her depression and keeping her connected to her community. Having support to address the domestic and hygiene neglect would enable Belinda to socialise more appropriately; again, benefitting her mental health considerably.
I have noted, over the years, that Belinda's bipolar disorder stabilises considerably when she has adequate social support. Her community are a significant factor in her mental wellbeing and anything that facilitates access to this would be beneficial.
I believe that the provision of early intervention supports for bipolar disorder would benefit the Applicant by mitigating the impact, prevent further deterioration in her functional capacity and improve her ability to undertake social interaction, self care and self management.
I further believe that the provision of early intervention supports would be likely to benefit the applicant by reducing the demand on her friends and family so that they may better support her in the long term and improve the quality and health of those relationships.
I believe the early intervention supports are most appropriately funded by the NDIS as these are not supports available in the medical or psychiatric systems. The early intervention supports would build the Applicant's functional capacity and prevent further declines in her functional capacity. I would hope that the supports would facilitate an improvement in independence and increase her capacity to complete activities of daily living and participate in the community. The early intervention supports are related to the Applicant's participation in social and economic life as any improvement in her function and mood management would benefit her ability to manage her limited finances.
The early intervention supports are not clinical in nature and cannot be accessed via the mental health care system. The early intervention supports are not involved in the treatment of the Applicant's bipolar disorder.
I do believe that the early intervention supports are directly related to the impairment resulting from bipolar disorder.
[89] Ibid 11-12.
General Medical Practitioner Dr Asiri Baduge
Dr Baduge of St John Medical Cannington would appear to have been the Applicant’s general medical practitioner. He completed a Supporting Evidence Form for her application to the NDIS dated 3 January 2021.[90] He identified ‘Rapid Cycling Bipolar Disorder’ (diagnosed in 2008) and ‘PTSD’ (since 2015) as the primary impairment, and listed PTSD, obesity, depression, sleep apnoea, anxiety, nerve pain, ovarian cysts and endometriosis as impairments, the first six as having ‘a significant impact’.[91]
[90] Exhibit R1 T1E 20-26, Supporting Evidence Form of Dr Asiri Baduge dated 3 January 2021.
[91] Ibid 20-21.
Dr Baduge identified the functional impact of the Applicant’s impairments as being on Mobility, Social interaction, Learning, Self-care, and Self-Management, but not Communication.[92]
[92] Ibid 20-26.
Dr Baduge considered that in respect of these activities, the Applicant required the following assistance:
(f)Mobility:[93] ‘equipment required – wheel chair, shower chair’; ‘car modifications’; ‘Assistance with transport for essential living (shopping and errands) and social connection’;
(g)Social interaction:[94] ‘Visual Screen reader’; ‘Physical assistance to transport and attend social meetings – help getting food and drinks and to find adequate seating’; ‘Psychological support to reduce anxiety and to assist with self reflection to engage appr[o]priately (manage mania and maintain motivation and mood management (depression)’;
(h)Learning:[95] ‘Screen reader technology’; ‘Text captioning’; ‘Visual aids – reminders to utilise’;
(i)Self-Care:[96] ‘Needs home equipment in shower – handles and shower chair’; ‘Food preparation’; ‘Maintaining kitchen hygiene’; ‘cleaning; manual tasks that require standing, bending, turning, more than 5 mins’; and
(j)Self-Management:[97] ‘Decision making around food and groceries and food preparation. Ordering food online’; ‘Decision making support due to cognitive fatigue – help to prioritise, delegate and plan and implement tasks’.
[93] Ibid 23.
[94] Ibid 24.
[95] Ibid 25.
[96] Ibid 25-26.
[97] Ibid 26.
A further report from St John Medical, with the subject line ‘Letter Of Suppor’ [sic ‘Letter of Support’] and addressed to the NDIA, is included in the T-documents. It is a poor reproduction and seems to be dated 24 February 2021. No author is identified. I am prepared to assume that it is from Dr Baduge, as the author speaks of knowing and managing the Applicant since April 2018. The report states that the Applicant has multiple medical and mental health conditions that have led to her disabilities. The author of the report advises:[98]
One of the major problems she is having is morbid obesity and she has had attempeted a Lap Band Surgery in 2010, which has ended up in a failure. She opted for the baraitric surgery due to failure of lifestyle measuers to loose weight. Her medications are also a limiting the posibilities of loosing weight. Obesity is affecting her physical abilities, Mobility and play a big role in her chronic pain and chronic fatigue syndromes.
She also suffers from chronic low back and joint pains which impaires her mobility. She has seen pain specialists and exhausted all options regarding her pain management’ [sic passim].
[98] Exhibit R1 T29 103, Letter of Support from St John Medical dated (?)24 February 2021.
The author does not explain what is meant by the lap-band surgery having ‘ended up’ a failure or say why it failed.
Psychosocial Recovery Coach and Support Worker Mandi Whyte
The Tribunal had before it a document under the letterhead of ‘Independent NDIS Psychosocial Recovery Coach and Support Worker’ Mandi Whyte, styled a ‘Letter of Support’ and bearing only the date ‘May 2021’.[99] It is not signed and, although Ms Whyte describes her qualifications as ‘B Sc (Psych) Grad Dip Ed Dip (Nat Med)’, and having known the Applicant since 2006, she does not describe her relationship with the Applicant, make clear the capacity in which she is writing the report, or her relevant expertise. Ms Whyte was not called to give evidence but was present in company with the Applicant during the hearing before the Tribunal and, at its commencement, was described by the Applicant as ‘a friend … who has been assisting me the whole time’.[100]
[99] Exhibit R1 T1F 27-31.
[100] Transcript 2.
The letter alludes to the Applicant having ‘psychosocial disabilities’ which are managed with medication and regular psychology sessions including Schema Therapy. Ms Whyte goes on to say that ‘[a]s a direct result of her anti-psychotic medications that manage their psychosocial disability, [the Applicant] also experiences a number of physical disabilities that affect her capacity to function in their daily life’ [sic].[101] As a result of her medications the Applicant is morbidly obese, and ‘experiences constant nausea and vertigo that is being investigated but not yet defined [but] is thought to be a side-effect of [her] prescribed medications’.[102] The Applicant is also said to experience ‘irregular, unpredictable bowel symptoms that affect [her] capacity to move in the community with confidence’.[103]
[101] Exhibit R1 T1F 27, Letter of Support from Support Worker Mandi Whyte dated May 2021.
[102] Ibid 28.
[103] Ibid.
Ms Whyte noted the Applicant’s capacity regarding mobility to be as follows:[104]
[104] Ibid 28.
(a)‘able to walk slowly, with the assistance of a cane, for about 2 minutes (100m) before needing to stop or sit’;
(b)having within her home numerous stools to enable her to sit and rest when she needs to;
(c)being ‘unable to bend to pick things off the floor’, resulting in clutter in her home;
(d)being ‘unable to walk easily to the outdoor rubbish disposal areas’ of her apartment block, resulting in rubbish and clutter in her home;
(e)being unable to stand on her feet for more than 2 minutes at a time, resulting in an inability to complete household tasks like cooking and dishwashing in more than 5 minute blocks, thus taking her all day to do them;
(f)being unable to walk ‘independently and safely’ from disabled parking bays to venues;
(g)needing assistance to complete grocery shopping, as she is not able to manage the amount of walking and carry heavy items alone;
(h)requiring assistance to empty her refrigerator of expired food; and
(i)taking two to three days to recuperate from getting to and from attending ‘swimming/aqua’ exercise programs.
Ms Whyte considered that the Applicant had ‘[a]dequate functional capacity’ to communicate.[105]
[105] Ibid 29.
So far as social interaction was concerned, Ms Whyte opined that the Applicant needed assistance, specifically with transport to social occasions and to ‘access suitable seating or manage stairs and elevators’, order food and drink and, as she uses a walking stick, carry items she has ordered. According to Ms Whyte, the Applicant’s prioritisation of essential activities such as medical appointments, grocery shopping and ‘face-timing’ with her two romantic partners means that she does not have the ‘energy or emotional resilience to allocate time or energy’ to other socialising or activities. The Applicant’s poor emotional regulation makes her prone to neglect ‘daily tasks and responsibilities such as shopping, cooking, house-cleaning, de-cluttering and attending medical appointments’.[106]
[106] Ibid.
Ms Whyte considered that the Applicant needed assistance in respect of the activity of learning,[107] and ‘requires’ such items as ‘Screen reader technology, Text captioning and Visual Aids’.[108] She does not explain what it is that the Applicant is incapable of doing that requires these aids, or how they will assist. One infers they are meant to make reading easier by somehow correcting or compensating for the Applicant’s double vision as reported by Ms Welsh, but evidence to that effect was not presented.
[107] Ibid 29-30.
[108] Ibid 30.
Ms Whyte goes on to say that the Applicant ‘needs prompting and guidance when learning new things and applying those things in a practical way, to [her] life support goals’ and ‘prompting and guidance and assistance to practice and implement new skills’. She gives as examples:[109]
(a)‘Learning and applying organisational systems in [her] household’ and prompting, guidance and assistance ‘implementing new organisational household systems and applying healthy regular daily routines. Eg applying a Food plan, cooking regular meals and applying kitchen hygiene practices’;
(b)‘Learning and applying emotional regulation strategies’ and prompting, guidance and assistance ‘implementing emotional regulation techniques’;
(c)‘Learning budgeting strategies and competent financial management’ and ‘[p]rompting and guidance with implementing competent financial management’; and
(d)‘Learning new skills for house management and making decisions around waste disposal and recycling/reducing excess clutter in the home’ and prompting, guidance and assistance ‘implementing new skills and regular routines for Housecleaning and making decisions around waste disposal and recycling/reducing excess clutter in the home’.
[109] Ibid.
Other than asserting that the Applicant ‘needs’ prompting, guidance and assistance, Ms Whyte does not give any information as to why this need arises and what the Applicant is capable or incapable of doing. One is presumably meant to infer that it is due to the Applicant’s bipolar disorder and mental health issues, but the degree to which the Applicant can do some or all of these tasks is not stated.
So far as self-care is concerned, Ms Whyte advises that the Applicant:
(a)cannot stand in the shower and requires a weight-bearing bench or aid;[110]
(b)‘needs prompting and guidance to implement self-care routines such as showering/bathing, oral hygiene, teeth-cleaning and caring for own health’, especially ‘regarding sleep hygiene, eating healthy food and keeping motivated to achieve a realistic exercise routine’;
(c)is unable to manage dishwashing;
(d)needs physical assistance with cooking and eating healthy meals as she ‘cannot currently manage to cook any food or make food decisions independently’; and
(e)needs physical assistance to keep her house decluttered and clean.
Why this is so, and how these ‘physical disabilities’ are connected to her mental health issues is not clarified.
[110] Ibid.
Ms Whyte, in dealing with the Applicant’s ability to self-manage, asserts that the Applicant needs ‘guidance and prompting’ to motivate herself and prioritise tasks; to learn good practice skills for organisation of herself and household and to develop and follow daily routines; to meet deadlines, time management and scheduling; to manage correspondence; regarding food and sleep routines; and to maintain household cleaning routines. She also needs ‘guidance and prompting’ to make decisions and handle problems, and guidance in budgeting and spending money wisely.[111] Again, the Tribunal is presumably meant to infer that the necessity for these supports arises from the Applicant’s bipolar and mental health issues, but the degree of her functional capacity or incapacity is not explained.
[111] Ibid.
Senior Occupational Therapist Heidi Perera
Ms Perera’s ‘Letter in support’ of 27 October 2021 followed an assessment she had earlier that day made of the Applicant at the latter’s home in South Perth.[112] She had met the Applicant for the first time at her clinic on 18 October 2021.[113] Her letter noted that the Applicant has been diagnosed with Bipolar Affective Disorder and co-existing conditions of post-traumatic stress disorder, anxiety, and depression. Mr Perera advised that the bipolar affective disorder ‘is a permanent condition, with resulting functional impairment in the areas of mobility, social interaction, learning, self-care and self-management’.[114] She considered that the Applicant’s condition demonstrated ‘significant functional impact’ on the Applicant’s mobility, social interaction, learning, self-care, and self-management.
[112] Transcript 21; Exhibit R2 Document 8 184, Letter in support from Senior Occupational Therapist Heidi Perera to Psychiatrist Professor Sean Hood dated 22 October 2021.
[113] Exhibit R2 Document 8 184, Letter in support from Senior Occupational Therapist Heidi Perera to Psychiatrist Professor Sean Hood dated 22 October 2021.
[114] Exhibit R2 Document 1 3, Letter in support from Senior Occupational Therapist Heidi Perera dated 27 October 2021.
She purported to particularise these functional impairments as follows:
(a)Mobility
Belinda has experienced significant weight gain and is frequently exhausted and sedated due to the medications she takes daily to manage her Bipolar Disorder.
As a result, she is unable to:
·   Walk more than 100 metres without requiring to rest
·   Stand for more than one minute
·   Drive for more than 15 minutes
·   Use public transport
·   Prepare meals
·   Clean and maintain her home
·   Complete grocery shopping
Belinda also experiences difficulty with:
·   Bending, reaching and organising items within the home environment; resulting in an extremely cluttered home environment and creating a safety hazard and falls risk.
Subsequently, Belinda requires support to the access the community and equipment and support to assist meal preparation, grocery shopping and home maintenance.
(b)Social interaction
Belinda's Bipolar Disorder results in rapid cycling symptoms of anxiety and depression; and interactions with others are extremely exhausting due to the level of stress they create. Belinda's trauma history, in addition to her bipolar disorder, also means that she has difficulty developing trusting relationships with others. When Belinda experiences severe depression, she is completely unable to express her needs and communicate to others.
As a result, she is unable to:
·   Live with others in the household (she has two partners, but is unable to manage the level of interaction that would be required to live with another person)
·   Maintain relationship with her family
·   Connect with her local community
·   Attend social or recreational activities in her community
·   Use public transport
·   Attend work or study
·   Travel alone to unfamiliar environments
·   Feel safe within her community
She experiences difficulty with:
·   Coping with feelings and emotions
This functional impairment has resulted in severe social isolation for Belinda. Belinda will require the following support:
·   Community access and transport assistance
·   Support to accompany her attending social activities until trust and relationships are developed
·   Support to engage in social interactions
·   Support to develop skills and build confidence in social interaction
·   Support to promote participation in social and community activities and to build natural and informal supports.
(c)Learning
Belinda's Bipolar Disorder impacts her ability to maintain attention and concentration. Her thoughts can often be either slow or racing, and the side effects of her daily medication result in her feeling exhausted and sedated.
As a result, Belinda is unable to:
·   Work in her trained field as a teacher
·   Complete further study (Belinda has attempted this but has been unable to complete successfully due to the issues outlined above)
Belinda has difficulty with:
·   Learning new things
·   Understanding and remembering new information
·   Organising daily tasks
Belinda requires the support of another person to assist her in developing skills, organising daily activities and routines, and retaining information.
(d)Self-care
Belinda's Bipolar Disorder results in rapid cycling symptoms of anxiety and depression; She has also experienced significant weight gain and is frequently exhausted and sedated due to the medications she takes daily to manage her Bipolar Disorder.
As a result, Belinda experiences difficulty with:
·   Completing personal care tasks (such as showering, washing her hair, and attending to personal hygiene). Belinda is unable to stand to shower
·   Maintaining an adequate diet
·   Engaging in activities that promote health and wellbeing (such as exercising regularly); and establishing a routine that supports this
Belinda requires equipment to assist in her completion of self-care tasks, and support to develop a daily routine to support activity engagement.
(e)Self-management
Belinda's Bipolar Disorder results in ongoing mood disturbance (rapid cycling of symptoms such as anxiety and depression), and impaired concentration, attention and organisation. As noted elsewhere in this report, the side effects of the medication that she takes daily to manage her Bipolar Disorder have resulted in weight gain and frequent exhaustion and sedation.
As a result, Belinda is unable to:
·Complete shopping tasks
·Access the community independently
·Complete household cleaning and organisation tasks
·Prepare meals
She experiences difficulty with:
·   Accessing online services such as shopping and banking
·   Managing her emotional health
·   Attending appointments
·   Problem solving
·   Advocating for herself
Belinda requires assistance to maintain her home, support engagement in daily routines and organisation of activity, prepare meals, and access the community to attend appointments and activities related to health maintenance.
Consultant Psychiatrist Professor Sean Hood

Professor Hood’s letter of 19 November 2021 is brief. It merely confirms that the Applicant has Bipolar Affective Disorder, without descending into any detail of the condition or how it manifests in the Applicant’s case. Otherwise, he refers to Ms Perera’s occupational health assessment, which he confirms and endorses.[115]
[115] Exhibit R2, 7.
The material produced under summons reveals more detail about the drugs the Applicant has been prescribed and the evolution of her bipolar disorder, but no material information about their effect or any relevant impairment of function.[116]
[116] Ibid 71-148.
Occupational Therapist Jayne Cruttenden
Occupational Therapist Jayne Cruttenden of Beyond Function Occupational Therapy Services was engaged by the Respondent to provide a comprehensive functional assessment of the Applicant for the purposes of these proceedings. This included an assessment of the Applicant in her South Perth unit home. The assessment was undertaken on 17 February 2022 and Ms Cruttenden’s report was produced on 1 March 2022.[117] With the exception of Ms Welsh’s report of 1 September 2022, it is the most recent specialist assessment and report available to the Tribunal. Ms Cruttenden relied on her personal observations, what was reported to her by the Applicant, and what was revealed in the reports and letters supplied to her from the Applicant’s treating practitioners.
[117] Exhibit R2 Document 4 17-32, Report of Occupational Therapist Jayne Cruttenden dated 1 March 2022; Exhibit R3, Professional Profile of Jayne Cruttenden; Transcript 65.
When giving evidence and speaking to her report, Ms Cruttenden explained that in the context of functional assessments, an occupational therapist ‘looks at a person’s ability to perform their everyday occupations … and then looks at the way that performance is done, and any barriers to that performance. … so, on a home visit we’d be looking at someone’s ability to move around their home, look at the way their home is set up in terms of what they may use different areas of their home for, and how they would go about every day activities in their home’.[118]
[118] Transcript 49.
The Applicant advised Ms Cruttenden that she had been diagnosed with:[119]
[119] Exhibit R2 Document 4 19-20, Report of Occupational Therapist Jayne Cruttenden dated 1 March 2022.
·Bipolar Disorder;
·Post-traumatic stress disorder;
·Depression;
·Anxiety;
·Obesity;
·Sleep Apnoea;
·Vertigo and dizziness;
·Ovarian cysts and Endometriosis;
·Past diagnosis of Burkitt’s Lymphoma (2008); and
·Back pain in lumbar region – potential L4 nerve [impingement].
Ms Cruttenden recorded the Applicant’s weight as being 170 kg and her height as 162 cm.[120]
[120] Ibid 20.
The Applicant was living in a one-bedroom ground floor unit with a compact kitchen, a lounge room, a bathroom with a separate toilet, and with a small, enclosed, balcony. It appears that she was using the bedroom as a storeroom, also housing in it a washing machine and dryer. Her bed was in the lounge room. There were two concrete steps to access a concrete porch at the front door of the unit.[121]
[121] Ibid 21.
Ms Cruttenden assessed the Applicant’s circumstances and functional capacity as follows:
(a)Communication:[122] The Applicant was able to communicate effectively verbally, although she claimed that on days with ‘increased mental health symptoms’ her ability to communicate verbally in person or on the telephone was ‘extremely limited’. The Applicant could read basic text but reported difficulty with small text due to blurred vision. She was able to read and fill out forms without significant difficulty. The Applicant has a mobile phone which she was able to independently use for calls and text messages. She also had a computer which she was able to operate but tended to access email and internet on her phone.
[122] Ibid 23.
(b)Social interaction:[123] The Applicant advised that her main social contacts were with her two primary partners, Doug and Leilu. Doug lived seven minutes’ drive away. The Applicant would visit Doug on Friday nights and they would usually attend the pool together weekly. Leilu lived overseas and she and the Applicant had a ‘long-distance relationship’ but spoke often on the phone [as noted, Leilu has since joined the Applicant in Perth and the two were making plans to live together]. There was no report of any family contact for several years.
[123] Ibid.
The Applicant limited her social interaction to approximately twice a week to manage fatigue and mental health, attended a women’s group once a month, and occasionally engaged in volunteer community activities, albeit less often than when she was teaching in 2010. The Applicant could speak on the telephone and text, but her fatigue, blurred vision and ‘mental health issues’ limited her ability to do so for ‘long periods of time’.
According to Ms Cruttenden, the Applicant ‘explained that all forms of social interaction is more manageable with support’, but she was limited in being able to ask Doug for regular support due to his own disability.
(c)Learning:[124] The Applicant was orientated as to the day, date, month and year, and said she would check her phone to ensure she knows the date. She mostly remembered to take medications from a Webster pack, although would occasionally forget due to disrupted sleep times. The Applicant advised that she has few demands on her memory in everyday life.
[124] Ibid 24: Ms Cruttenden quoting Applicant.
The Applicant was able to maintain attention throughout the two-hour assessment, but reported difficulty with attention and concentration with worsening mental health symptoms. Ms Cruttenden observed in the unit some organisation of art supplies and belongings, but generally a level of disorganisation and clutter.
The Applicant claimed to that she had ‘periods of clarity’ which would last approximately 20 minutes, where her mind feels sharper and she can focus on a task, but otherwise described a level of ‘brain fog’ which she attributed to medications and fatigue.
(d)Mobility:[125] The Applicant could walk independently and unaided throughout her home, walking slowly and occasionally reaching out to furniture to steady herself. The Applicant walked around the unit for about 5 minutes before she needed to rest. Outside, the Applicant was able to walk about 40 metres with a single-point walking stick on what was a hot day, after which she was out of breath and reported being fatigued. The Applicant estimated that she was able to walk up to 100 metres without stopping on a ‘good’ day and if there were places to sit and rest, could walk further. She was able to ascend and descend two concrete steps at the front of her until independently using her walking stick but without the help of a handrail.
[125] Ibid 24-25.
The Applicant could independently, albeit with ‘mild effort’, complete a chair transfer. She has a very high bed but could get in and out using a cube seat to push off from. The Applicant reported being independent with toilet and shower transfers. She has some difficulty entering the passenger side of a car due to her left leg weakness but can manage entry and egress independently.
The Applicant was observed to stand for about 3 minutes unsupported but shifting her weight from one leg to the other and moving her feet. She was not able to stand still for more than 10 seconds, and said that standing increases the nerve pain in her legs.
The Applicant could bend at the hip to reach the ground, but when returning to the upright position had to close her eyes momentarily to steady herself. She could bend sideways in a seated position to pick up an item from the floor. She told Ms Cruttenden that she avoids bending because of vertigo and dizziness.
Ms Cruttenden observed the Applicant pick up a 5 kg cube seat without difficulty; the Applicant stated that she did not lift heavier items or regularly carry heavier items any distance, except for a single bag of shopping.
Ms Cruttenden observed the Applicant to be able to stand on her right and then left leg and balance, although she needed to hold onto furniture to balance on her left. The Applicant could turn in a circle without losing balance and look over both shoulders, although she appeared dizzy after doing so and paused to steady herself. The Applicant reported one fall late in 2021 due to dizziness, and at one point having 3 or 4 falls in a week, but none in 2022 up to the date of the assessment, and stated that she exercised caution.
The Applicant had a manual transmission motor vehicle and drove independently, but said that 20 minutes is the furthest she would drive due to dizziness, vertigo and mental health symptoms. Her partner Doug drove her to most destinations including their visits to the pool for hydrotherapy and walking.
(e)Self-Care:[126] The Applicant reported having no difficulties independently toileting, and with post-toilet hygiene. She experienced constipation and diarrhoea from time-to-time. The Applicant could shower independently in a standing position. Her showers were ‘quick’ due to reduced standing tolerance and dizziness. She would occasionally use a shower stool but considered it very small and uncomfortable. She showered on days when she was going out, rather than every day; she used soap when she had ‘energy’. She washed her hair twice a week, but experienced dizziness and vertigo when doing so.
[126] Ibid 25.
The Applicant could dress independently in a seated position. She did not wear bras and tended to wear stretchy, easy care, clothes like tunics, leggings, and dresses. She can put her shoes on while seated, picking up her left leg to put it into the shoe. She was able to reach to the back of her shoes to put them on. Her breathing rate increased completing this task.
The Applicant could independently brush her teeth and hair but avoided the latter due to pain in her scalp.
The Applicant reported not going to sleep until 2:00 am in the morning and waking at 2:00 pm in the afternoon. She used a sleep apnoea machine but reported never waking feeling rested, and the presence of a ‘pervasive fatigue’ every day that affected all her daily activities.
The Applicant is physically independent with eating and drinking and can use cutlery. However, she reported that her persistent nausea since 2016 has led to anxiety around meals, and strong-smelling foods increase her nausea. She ‘can usually manage’ some toast or cereal or a drink but ‘generally eating is not an enjoyable experience’ for her.
(f)Self-Management:[127] The Applicant had a pull-along type vacuum cleaner but says that it is physically difficult for her to use it; why that is so is not explained in Ms Cruttenden’s report. Her partner Doug took out household rubbish; why the Applicant was not able to do so is also not explained. Her home was cluttered and disorganised and, apparently, not been thoroughly cleaned for some time.
The Applicant had a washing machine and dryer in her bedroom. She told Ms Cruttenden that she did the laundry one a week, but often did not put the clothes away, leaving them to pile up in the bedroom and lounge room, and they could become dirty again.
The Applicant completed a weekly online shopping order, for ‘click and collect or delivery’. The Applicant told Ms Cruttenden that she was ‘unable to walk around a supermarket or shopping centre’; when she required small items, she preferred to shop at the local service station, which required limited walking.
The Applicant demonstrated her ability to move around her kitchen for 2-3 minutes and could independently prepare breakfast or a snack or heat up a microwave meal, which she would take to bed to eat. As at the date of the assessment, she had not used the oven or cooktop for more than a month. She advised that on ‘most days’ she could not tolerate the smell of cooking due to nausea, but was better able to eat a meal if someone else had cooked it.
The Applicant told Ms Cruttenden that in recent months she had not had the physical or mental energy to tend her small outdoor balcony garden, which was neglected.
The Applicant stated that she was independent with finances and able to budget to ensure all essential bills were paid, although sometimes would run out of money prior to the next pay. She had set up an account that she can only access by attending the bank; this was ensure financial security in manic phases to prevent impulse buying.
The Applicant reported ‘questionable’ decision-making during manic episodes, and her decision-making being ‘affected’ during periods of depression or high anxiety. The Applicant, according to Ms Cruttenden, displayed good insight into these limitations. The Applicant reported relying heavily on her partners for emotional support and to assist with life decisions. She continued to engage with her medical professionals, psychologist, and a physiotherapist, indicating an ability to seek appropriate opinions.
[127] Ibid 25-26.
Ms Cruttenden’s conclusions were as follows:
(a)Communication: The Applicant did not have significant reduced functional difficulty in communication, although fluctuations in mental health had an impact at various times throughout the day and week.[128] The Applicant’s functional capacity to communicate was reduced on days with increased adverse mental health symptoms.[129]
(b)Social interaction: The Applicant had a ‘substantially reduced functional ability in the social interaction domain, which is related predominantly to [her] mental health symptoms, although [her] reduced physical capacity, fatigue, pain and dizziness also contribute to reduced performance. [She has] extremely limited engagement in age appropriate vocational, leisure and social activities, despite previously engaging in a range of varied community based activities. Assistance to address this reduced functional ability is indicated’.[130]
In giving evidence, Ms Cruttenden clarified that her characterisation of the reduction in functional ability as ‘substantial’ was with reference to, and in comparison with, the Applicant’s ‘desires and previous amounts’ – overall she accepted that ‘you would just say it’s reduced functional ability’ compared to the ‘usual population’.[131]
(c)Learning: As with Communication, the Applicant did not have significant reduced functional difficulty in learning, although fluctuations in mental health had an impact at various times throughout the day and week.[132] The Applicant’s learning capacity was affected at times of worsening mental health.[133]
(d)Mobility: In her report, and evidence, Ms Cruttenden assessed the Applicant as having a reduced functional ability with respect to mobility tasks. She considered this was predominantly related to fatigue, pain, obesity and dizziness, although mental health symptoms likely also contributed to reduced performance.[134] She did not require the assistance of another person to mobilise, but did require a walking stick for outdoor mobility for distances of up to 100 metres. A motor scooter would ‘assist with independent mobility’ for distances greater than that.[135]
(e)Self-Care: In her report Ms Cruttenden assessed the Applicant as having ‘functional restriction’ with self-care activities, her reduced function and fluctuating performance being related predominantly to her mental health symptoms.[136]
In her testimony, Ms Cruttenden confirmed that in her view it was not a ‘significant functional restriction’ compared to a reasonable amount of self-care. With respect to the Applicant having showers only on days she was going out, Ms Cruttenden inferred that this barrier to performance was due not to physical or cognitive barriers, rather than mental health symptoms affecting motivation.[137] The Applicant’s taking short showers and using a stool was primarily due to physical issues.[138]
(f)Self-Management: In her report Ms Cruttenden assessed the Applicant as having a ‘significant restriction with self-management tasks specifically meal preparation, cleaning and gardening. This restriction appears to be related to a combination of mental health and physical issues including nausea, fatigue, dizziness and pain’.[139]
In her evidence Ms Cruttenden explained that so far as cleaning and gardening were concerned, these factors might include the Applicant’s intolerance of standing for lengthy periods of time and not prioritising these tasks.[140] Her physical difficulties were likely to play a greater role in limiting the Applicant’s meal preparation.[141]
The Applicant’s ability to make personal decisions independently fluctuated depending on her mental health symptoms. When they were poor, she required the assistance of a trusted person to make decisions, but otherwise was able to make appointments independently and there were no significant issues with insight.[142]
[128] Ibid 26.
[129] Ibid 31.
[130] Ibid 27.
[131] Transcript 54.
[132] Exhibit R2 Document 4 26, Report of Occupational Therapist Jayne Cruttenden dated 1 March 2022.
[133] Ibid 32.
[134] Ibid 27; Transcript 62.
[135] Exhibit R2 Document 4 29, Report of Occupational Therapist Jayne Cruttenden dated 1 March 2022.
[136] Ibid 26.
[137] Transcript 56-58.
[138] Ibid 57.
[139] Exhibit R2 Document 4 27, Report of Occupational Therapist Jayne Cruttenden dated 1 March 2022.
[140] Transcript 60-61.
[141] Ibid 61.
[142] Exhibit R2 Document 4 32, Report of Occupational Therapist Jayne Cruttenden dated 1 March 2022.
Observations regarding the Health Professionals’ Evidence
Ms Welsh’s reports focus on the Applicant’s psychological treatment and progress. Her recommendations in her Supporting Evidence Form of the types of assistance that the Applicant ‘required’ are not supported by detail as to what functional limitations they are meant to address. Ms Welsh’s most recent report of 1 September 2022 provides somewhat more information about the Applicant’s capacity, but not a great deal, and does so by way of generalities. Some of her comments are unsupported by evidence (such as that the Applicant’s impairments included headaches;[143] that she ‘struggles to get out of bed some days’ due to her poor physical health;[144] that the Applicant requires help with tasks that involve bending or turning;[145] and that the Applicant needs assistance with ordering food online because she gets dizzy and nauseous from using a computer for more than five minutes[146]). Some of this may be due to the dated nature of the information provided. Further, to the extent that she comments on any limitations the Applicant experiences, it is not based on her having observed the Applicant or made any physical assessment, but on ‘session notes and discussions’ with the Applicant.[147] She was not called to give evidence, and so was not able to be questioned to clarify and explain her opinions, or to establish clearly the source of information upon which she based her conclusions.
[143] Exhibit R1 T1C 11-12, Supporting Evidence Form of Clinical Psychologist Linda Welsh dated 29 June 2020.
[144] Exhibit R2 Document 3 11, Report of Clinical Psychologist Linda Welsh dated 1 September 2022.
[145] Paragraph 62 supra; Exhibit R1 T1C 16-17, Supporting Evidence Form of Clinical Psychologist Linda Welsh dated 29 June 2020.
[146] Exhibit R1 T1C 16-17, Supporting Evidence Form of Clinical Psychologist Linda Welsh dated 29 June 2020.
[147] Exhibit R2 Document 3 11, Report of Clinical Psychologist Linda Welsh dated 1 September 2022.
Dr Baduge was not called to give evidence and clarify or explain what he had to say in his Supporting Evidence Form. It confirms awareness of the Applicant’s mental health issues, but does not take the other available evidence much further. However, the ‘Letter of Support’ is significant in that it relates the Applicant’s obesity to her physical ability and mobility, and to the chronic pain and fatigue she experiences. It supports the Respondent’s contention that there is insufficient evidence before the Tribunal to assess the contribution the Applicant’s weight and build, rather than her bipolar disorder and the medications she takes for it, make her unable to mobilise and perform household tasks to the extent to which she aspires. Even accepting that a side-effect of her bipolar medications is nausea that deters her from cooking or eating, and yet encourages her to put on weight, other strategies the Applicant can reasonably adopt to control or reduce her weight are not addressed.

I treat Ms Whyte’s ‘Letter of Support’ of May 2021, which by the time of the hearing was over two years old, with caution for, inter alia, the following reasons:
(a)albeit well-meaning and well-motivated, Ms Whyte is the Applicant’s friend and has written her letter as an advocate for the Applicant, rather than as an independent expert providing disinterested assistance to the Tribunal;[148]
(b)Ms Whyte did not give evidence to clarify or explain her assessments and opinions;
(c)Ms Whyte does not explain her relevant expertise, and expresses opinions that are arguably beyond her field of expertise (for example, that the Applicant experiences physical disabilities as a ‘direct result’ of her anti-psychotic medications; and that she is morbidly obese as a ‘direct result’ of her prescribed medications[149]);
(d)Ms Whyte makes sweeping recommendations for ‘assistance’, ‘support’, ‘guidance’ and ‘promoting’, but with little or no detail as to what limitations they meant to address;
(e)Ms Whyte does not sufficiently identify what leads to some of her conclusions (for example, the Applicant’s inability to bend to pick things off the floor; her needing assistance to clean her refrigerator of expired food;[150] her inability to stand when showering; and her need for guidance in self-care routines such a showering and oral hygiene[151]);
(f)Ms Whyte expresses conclusions about the Applicant’s capacity which are contradicted by the Applicant’s, and other, evidence (for example: the view that the Applicant is ‘unable to bend to pick things off the floor’[152]) or unsupported by evidence (for example, the Applicant needing 2-3 days to recover and recuperate should she take herself to the pool for exercise[153]); and
(g)Ms Whyte does not specify the extent to which the Applicant can do certain tasks, rather than identifying what she considers the Applicant cannot do or has difficulty doing and extrapolating that into generalised necessity for support.
[148] Exhibit R2 Document 1 3, Letter in support from Senior Occupational Therapist Heidi Perera dated 27 October 2021.
[149] Exhibit R1 T1F 27-28, Letter of Support from Support Worker Mandi Whyte dated May 2021.
[150] Ibid 28.
[151] Ibid 30.
[152] Ibid 28.
[153] Ibid.
Ms Perera’s ‘Letter’, which by the time of the hearing was already some 17 months old, like Ms Whyte’s had been written as a support for the Applicant rather than from the position of a disinterested expert witness. I do not dismiss it, but it suffers the same limitations as that of Ms Whyte’s, namely:
(a)Ms Perera draws broad conclusions and makes sweeping recommendations but with little to no specificity (for example ‘inability to complete home management tasks’),[154] and does not identify observations that support them;
(b)it appears from an assessment Record prepared by Ms Perera before her visit to the Applicant’s home, dated 18 October 2021, that many of the physical limitations she enumerates in her Letter may be based on the Applicant’s self-reporting at the initial consultation, rather than Ms Perera’s personal observation;[155]
(c)Ms Perera does not sufficiently identify what it was during her assessment that leads to some of her conclusions (for example: ‘inability to prepare meals’;[156] ‘unable to stand to shower’[157]);
(d)Ms Perera expresses opinions that are arguably beyond her field of expertise (for example, that symptoms of the Applicant’s bipolar disorder or medications she takes for it result in her inability to perform certain tasks);
(e)Ms Perera expresses conclusions about the Applicant’s capacity which are contradicted by the Applicant’s, and other, evidence (for example: the view that the Applicant is unable to prepare meals, when the Applicant testified that she can cook but sometimes can’t eat what she cooks;[158] that the Applicant is ‘unable’ to live with others, when the Applicant testified that she and her partner Leilu were planning to move in together[159]);
(f)Ms Perera does not specify the extent to which the Applicant can do certain tasks, rather than identifying what she considers the Applicant cannot do or has difficulty doing and extrapolating that into general requirements for support; and
(g)Ms Perera was not called to give evidence at the hearing, and so did not have her opinions clarified or tested.
[154] Exhibit R2 Document 1 3, Letter in support from Senior Occupational Therapist Heidi Perera dated 27 October 2021.
[155] Exhibit R2 Document 8 169-173, Record of assessment by Senior Occupational Therapist Heidi Perera dated 18 October 2021
[156] Exhibit R2 Document 1 6, Letter in support from Senior Occupational Therapist Heidi Perera dated 27 October 2021.
[157] Ibid.
[158] Transcript 81-81.
[159] Ibid 17.
Accordingly, I approach it with caution and, except in respects where it is uncontroversial, I am unable to rely on it where it is not supported by other evidence.
Professor Hood’s brief letter of 19 November 2021, simply confirming and endorsing Ms Perera’s Letter of support, does nothing to meet the deficiencies.[160]
[160] Exhibit R2, Document 2 7, letter of Consultant Psychiatrist Professor Sean Hood dated 19 November 2021.
While the documentary evidence of the Applicant’s health professionals and supporters is of value, in assessing the Applicant’s functioning and functional capacity I prefer to rely upon the evidence of Ms Cruttenden. She appears to me to have had relevant and significant experience and expertise to be able to comment on the matters covered by her evidence. She had been engaged as a disinterested specialist to give evidence within her field of expertise, rather than to support one or the other party to the proceedings. Further, Ms Cruttenden’s report was the most recent substantial assessment and report of the Applicant’s circumstances and performance available to the Tribunal, and the most detailed in terms of what the Applicant can and cannot do, and identified the bases for her observations and recommendations.
Ms Cruttenden was not cross-examined. I accept that the Applicant is not learned in the law and was unrepresented, and would have found the hearing process unfamiliar. However, she was invited to ask Ms Cruttenden questions about her evidence and her report and did not do so.
CONSIDERATION
Section 24(1)(a): Disability attributable to impairments
The legislative scheme focusses not on the name of a person’s disability, nor the diagnosis given to it, but rather on what impairments are experienced by a person which may require supports so that they can participate in all aspects of personal and community life. The impairment is what the scheme contemplates may affect the ‘functional capacity’ of a person.[161] An impairment is not defined in the legislation, but is generally understood to involve the loss of or damage to a physical, sensory, or mental function.[162] It is not merely a reduction in a person’s capacity to do things which an unimpaired person would be able to do.[163]
[161] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), per Mortimer J at [69].
[162] Mulligan v National Disability Insurance Agency [2015] FCS 544 at [51]; Schwass and National Disability Insurance Scheme [2019] AATA 28 (Schwass) at [35]-[37].
[163] Schwass (n 162) at [34]-[35].
On the evidence available to the Tribunal, the Respondent’s concession that the Applicant has a disability attributable to one or more impairments attributable to a psychiatric condition (in the case of her bipolar disorder, PTSD, depression, and anxiety) is reasonable and proper.
The evidence does not support the Applicant having any impairment to function arising from sleep apnoea, ovarian cysts and endometriosis, or the past diagnosis of Burkitt’s lymphoma. To the extent that there is evidence concerning them, the Applicant’s vertigo and dizziness appear to be a side-effect of one or more of the medications she takes, rather than due to loss or damage to a physical, sensory, or mental function.
Obesity
The Respondent accepts that the Applicant’s obesity is a disability, but not attributable to an impairment rather than being descriptive of her weight.
Dr Baduge’s ‘Letter of Support’ advises that the Applicant’s obesity affects her physical ability and mobility and plays a ‘big role’ in her chronic pain, and fatigue. It appears that the Tribunal is invited to infer that the Applicant’s mental disorders require her to take medications that increase her craving for sugar, and that is resulting in her gaining and being unable to shed weight. However, the causes of the Applicant’s weight gain and retention, and her inability to shed it, were not the subject of medical evidence.
I accept that the Applicant has a disability due to her obesity, but I am not satisfied on the evidence available to me that her obesity is an impairment or caused by an impairment. The evidence does not support the Applicant’s obesity necessarily entailing a loss of or damage to a physical, sensory, or mental function.
There is also the question of whether her obesity is permanent or likely to be permanent. The several reports and letters of support from the Applicant’s witnesses seem to presume that her obesity is wholly and inevitably due to her medications, and unfixable. While Dr Baduge advises that lap-band surgery was unsuccessful, there is no evidence as to why. Nor is there any evidence before the Tribunal that there are no other known, available, or evidence-based medical or other treatments that would be likely to remedy her obesity and any consequences to her physical functioning.
Section 24(1)(b): Impairment permanent or likely to be permanent
The purpose of the Scheme is to deliver lifelong support to persons with disability.[164] The intention of the Scheme is that once a person meets the access requirement, then subject to certain specific exceptions, the person will remain supported by the NDIS for their lifetime.[165]The focus of the text in section 24(1) of the NDIS Act is on whether the impairments experienced by individuals have an enduring quality.[166] Accordingly, the phrase ‘permanent impairment’ in section 24(1)(b) means an impairment – the loss of or damage to a physical, sensory or mental function – of an enduring nature.[167] The question for the decision-maker is whether the impairment or impairments experienced by an individual – rather than the cause of the impairment or the specific diagnoses made about a medical condition – has or have an enduring quality, such as to require supports funded and/or provided under the NDIS Act on an ongoing basis.[168]
[164] Davis (n 161) at [85].
[165] Ibid at [130].
[166] Ibid.
[167] Ibid.
[168] Ibid at [85].
The Respondent submits that while there is some documentary evidence to support the contention that the Applicant’s bipolar affective disorder is permanent, the evidence is also that it is well managed by medication and schema therapy. There is no evidence to establish that the Applicant’s other conditions of PTSD, depression or anxiety are permanent. Further, to the extent that the Applicant’s obesity and other conditions are contributing to reduced function on the Applicant’s part, there is insufficient evidence of permanent impairment contributing to reduced functioning.
I agree that notwithstanding that the evidence is that the Applicant’s bipolar affective disorder is of long standing, there is also evidence that it can be managed to a significant – albeit not complete – extent through medication and the schema therapy techniques she has learned from her psychologist and which she practices. I am not satisfied on the evidence available to me that it, or the Applicant’s PTSD, depression, or anxiety, are permanent or likely to be permanent.
Section 24(1)(c): Substantially reduced functional capacity to undertake activities of communication, social interaction, learning, mobility, self-care, self-management
The Respondent accepts that the Applicant has several restrictions resulting from her impairments but contends that they do not amount to a substantially reduced functional capacity for the purposes of section 24(1)(c). In substance, the Respondent submits that although from time-to-time she may require extra time, pacing strategies, or the use of ‘commonly used’ items, the Applicant is able to participate in all six activities specified by section 24(1)(c).
Rule 5.8 prescribes circumstances in which a person may meet the disability requirement of having a substantially reduced functional capacity to undertake one or more of the activities prescribed in section 24(1)(c).[169] Rule 5.8 is a deeming provision.[170] If a person’s circumstances are caught by its terms, the person must be taken to have a substantially reduced functional capacity for the purposes of section 24(1)(c).
[169] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), per Katzmann, Perry & Derrington JJ at [59].
[170] See paragraph 12 supra.
Rule 5.8(a) deems that an impairment results in a substantially reduced functional capacity if the person is unable to participate ‘effectively or completely’ in the activity without assistive technology, non-commonly used equipment, or home modifications.[171] ‘Completely’ does not, however, import ‘wholly’ or ‘perfectly’.[172] A person will not necessarily be deemed to have substantially reduced functional capacity simply because one task cannot be completed without assistive technology or non-commonly used equipment. The relevant decision-maker must assess the degree to which a person can participate in the activity.[173] Further, ‘[u]ndertaking a task … differently to others will not necessarily mean a person cannot participate effectively or completely in an activity’.[174]
[171] Foster (n 169) at [66].
[172] Ibid at [86].
[173] Ibid at [88].
[174] Ibid at [66], [67].
Assistive technology and equipment
This raises the question of what is to be considered ‘assistive technology’ or equipment ‘other than commonly used items’ that fall within the scope of rule 5.8(a) of the Rules.
The Respondent asserts that the Applicant’s walking stick is not a ‘disability-specific’ support that has been established to have been duly ‘prescribed’ for use as provided for in the Applying Guideline and, in any case, is a ‘commonly used’ item.[175] The Respondent refers to the Tribunal Decision of Rooney and National Disability Insurance Agency[176] for indicia of what can be considered ‘commonly used items’: namely, items that are generally accessible, can be used without complex or specialised customisation or installation, are relatively simple to use, and are relatively inexpensive.[177]
[175] Exhibit R2 Document 9 209, Applying Guideline; Respondent’s Statement of Facts, Issues and Contentions dated 21 October 2022 at [29(d)(i)].
[176] [2021] AATA 3523 at [18]-[27].
[177] Ibid; Respondent’s Statement of Facts, Issues and Contentions dated 21 October 2022 at [29(d)(i)].
I agree that the walking stick is not a ‘disability-specific’ support as contemplated by the Applying Guideline and, consistently with other Tribunal decisions, should be regarded to be a ‘commonly used’ item.
Several other items of equipment have been suggested by the Applicant’s treating health professionals as being ‘required’ by her. These include: a shower chair, a ‘chair for use in kitchen’, a ‘wheelchair for prolonged distances’, unspecified ‘car modifications’, Google Home, a ‘Visual Screen reader’ or ’screen reader for visual assistance’, unspecified ‘Screen reader technology’, unspecified ‘Text captioning’ for learning, ‘audible and text captioning’ on her television, and updates for her glasses. None of these are specific to the Applicant’s disability, and some (such as a chair for use in the kitchen) can be regarded as commonly used items. The question is not whether they may make certain tasks easier for the Applicant, but whether they are necessary to enable her to participate effectively or completely in a relevant activity, or perform tasks or actions required to participate effectively or completely in the relevant activity. That entails an assessment of what the Applicant can and cannot do because of her impairments, not how much better she could do things if she received certain assistance.[178] The necessity for many of these items is not clear and the available evidence does not support the Applicant being unable to perform relevant tasks or activities due to the absence of any of these items.
[178] Madelaine (n 4) at [73].
Home modifications
By operation of rule 5.8, if an impairment results in an inability to participate effectively in one of the specified activities without home modifications, the person is deemed to have substantially reduced functional capacity to undertake that activity.[179]
[179] Foster (n 169) at [54].
The presence or absence of these home modifications does not settle the question of whether the Applicant’s functional capacity is substantially reduced. However, none of the health professionals the Applicant has consulted have suggested any home modifications, other than perhaps ‘handles’ in the shower.[180] As it happens, there is no evidence that their absence has prevented her from mobilising, or otherwise undertaking the critical activities specified by section 24(1)(c).
[180] Paragraph 69 supra.
Assistance from others
Lastly, rule 5.8(b) deems that an impairment results in a substantially reduced functional capacity if 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’.
The Applicant receives assistance from her partner Doug to provide certain domestic and transport assistance. However, apart from being able to travel by car to events more than 20 minutes away, accompanying the Applicant to hydrotherapy, or taking out her household rubbish, there has been no evidence of a specific task pertinent to the activities specified in section 24(1)(c) that he is usually required to assist with to enable her to participate in them. Otherwise, the Applicant appears to rely on her partners mostly for emotional support.
Functional capacity to undertake activities
It remains to consider whether the evidence has established that the Applicant has substantially reduced functional capacity to undertake any of the activities specified in section 24(1)(c).
Section 24(1)(c)(i) – Communication
The Access Guideline describes ‘Communicating’ as:
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.
Ms Welsh did not consider the Applicant to need assistance with communication. Dr Baduge did not consider the Applicant’s impairments to have a functional impact on communication. Ms Whyte considers that the Applicant has adequate functional capacity regarding communication. Ms Perera makes no observation with respect to the Applicant’s capacity to communicate.
Ms Cruttenden considered that the Applicant had ‘a reduced functional capacity with communication on days with increased mental health symptoms’. However, she seems to be referring to an inhibition or limited tolerance communicating with others, rather than the Applicant’s ability to convey and receive information and express herself. The Applicant could communicate verbally, read, text, and use a computer, the internet, and email.
The Applicant in her evidence did not indicate any impairment in this respect, other than occasions when she experienced aphasia through pain.
There is no evidence before the Tribunal to indicate that the Applicant has a substantial reduction in her capacity to communicate effectively.
Section 24(1)(c)(ii) – Social interaction

The Access Guideline describes ‘Socialising’ as:
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 Applying Guideline’s focus is on the personal skills necessary for social interaction, rather than the location or frequency of opportunities to practice such skills.[181]
[181] Madelaine (n 4) at [87]; Nika and National Disability Insurance Agency [2021] AATA 2127 at [241].
Ms Welsh opined that the Applicant needed physical assistance to attend social events, and ‘psychological support to engage appropriately with friends’. However, she reported in 2020 that the Applicant had learned regulate her emotions and how to create ‘lasting and meaningful’ relationships. There was no evidence of this having declined. Dr Baduge mentions physical assistance, assistive technology and psychological support but does not comment on the Applicant’s ability to engage with others. Ms Whyte considered that the Applicant needed assistance to ‘regularly interact with the community’,[182] but the substance of that assistance was with opportunities to do so, rather than the Applicant’s ability to engage with others. Ms Perera opined that the Applicant had difficulty developing trusting relationships with others but does not address the question of how the Applicant behaves in social situations.
[182] Exhibit R1 T1F 29, Letter of Support from Support Worker Mandi Whyte dated May 2021.
Ms Cruttenden referred to what was reported to her about the Applicant’s limited social circle and opportunities for social engagement, but made no observations to the effect that the Applicant had any limited capacity to suitably engage with others.
The Applicant’s bipolar fluctuations in mood and behaviour affect her inclination to interact with others. However, that limits her opportunities to do so rather than the way she engages with others. She spoke of inapt interactions that led to her relinquishing her teaching career, but since then had been involved in volunteer and social groups and, were it not for what she considers to be her physical limitations, would continue to do so. She enjoys a supportive relationship with her two partners and at the time of the hearing was making plans to cohabit with one. She attributed her lack of contact with her family to bipolar disorder, suggesting that intemperate comments she may have made at some time in the past have had a long-term and damaging effect, but there is insufficient information regarding the circumstances and the family dynamics to understand how this may be attributable to a reduction in capacity to socially interact: in any case, one cluster of poor social relationships – especially intra-familial – does not necessarily evidence an incapacity to socialise more generally.
On the contrary, the Applicant presented as being personable, appears to have loyal and supportive friends, and expressed no reservations about how she would engage with others were she to have the opportunity to do so. Her mood swings may make some social interactions difficult and less than satisfactory, but there is no evidence of a general incapacity to make or keep friends, interact with the community, or behave appropriately and in accordance with societal norms and expectations.
I am not satisfied that the Applicant has a substantially reduced functional capacity with respect to social interaction.
Section 24(1)(c)(iii) – Learning
The Access Guideline describes ‘Learning’ as:
how you learn, understand and remember new things, and practise and use new skills.
The Guideline focusses on a person’s cognitive ability to absorb and apply new skills, not higher order thinking or skills, and not necessarily the ability to apply them. An inability to utilise a skill does not connote an inability to learn it.[183]
[183] Madelaine (n 4) at [93]-[95].
Ms Welsh, Dr Baduge, and Ms Whyte considered that the Applicant needed physical assistance for learning, the focus being on aids to compensate for problems the Applicant was experiencing with her vision. Ms Whyte considered that the Applicant needed prompting and guidance in learning and implementing new skills but, as observed, gave no information as to why this need arises or what the Applicant was or was not capable of doing. It is not uncommon for people to require such assistance, the question being the extent of the Applicant’s reduced capacity to learn, remember, and practice what she has learned.
Ms Cruttenden noted that the Applicant had reported generalised ‘brain fog’ with periods of clarity, which the Applicant attributed to medications and fatigue. Otherwise, the Applicant did not report any significant inability to learn, assimilate, understand, or remember information or new things.
The Applicant in her evidence mentioned her ‘brain fog’, but did not allude to any difficulty in learning new skills. On the contrary, although it took time and discipline, she has learned schema therapy, and to anticipate the contrary effects of her medications and her mood swings, such as impulse buying.
I am not satisfied that the Applicant has a substantially reduced capacity for learning.
Section 24(1)(c)(iv) – Mobility
The Access Guideline describes ‘Mobility, or moving around’ as:
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.
Ms Welsh and Dr Baduge consider that the Applicant requires physical equipment aids and transport to facilitate her mobility. Ms Whyte goes further to outline the Applicant’s physical limitations in being able to walk, stand and bend, her physical strength, and her endurance. She asserted that, inter alia, the Applicant was unable to bend to pick things off the floor, which is not supported by other evidence and contradicted by Ms Cruttenden’s observations during her assessment. Ms Perera likewise sets out her views of the Applicant’s physical limitations. In some cases, the Applicant is said to be ‘unable’ to perform certain tasks, in others that she experiences ‘difficulty’ in doing so, but without detail.
Ms Cruttenden observed the Applicant to walk approximately 40 meters with a walking stick without stopping, and the Applicant told her that she could walk outdoors up to 100 metres with a stick before needing to rest. Her tolerance for walking indoors unaided is approximately 5 minutes. She can walk on pavement and grass but avoids uneven surfaces. The Applicant advised that she needed to sit and rest for a minimum of two minutes before resuming walking, though sitting to rest is not always possible when in the community. She only needs a walking stick outdoors. The Applicant was short of breath after walking outdoors, and after mobilising and standing for 5 minutes indoors and appeared fatigued.[184]
[184] Exhibit R2 Document 4 27, Report of Occupational Therapist Jayne Cruttenden dated 1 March 2022.
Ms Cruttenden observed the Applicant to independently negotiate two steps with no handrail at her front porch. She advised that she ‘avoids’ other stairs. She can get into and out of her bed, and can stand in the shower for sufficient time to wash herself.[185]
[185] Ibid.
The Applicant does not use public transport,[186] but she is able to drive to destinations at least 20 minutes away in a manual transmission vehicle.[187]
[186] Ibid.
[187] Ibid 29.
The Applicant reported to Ms Cruttenden that she had fallen to the ground late in 2021, and that in one week that year she had had three falls ‘due to dizziness’.[188] Ms Cruttenden noted that the Applicant’s dizziness and vertigo is a significant contributing factor to her falls risk, as were her medications, blurred vision, nerve pain in her legs and her obesity, and the cluttered environment in which she lives. However, Ms Cruttenden assessed her as having a moderate risk of falls, rather than high, as she has not suffered any recent falls and walked slowly and with caution.[189]
[188] Ibid 28.
[189] Ibid 29.
The Applicant can lift at least up to 5 kg. She does not lift heavier items due to pain and vertigo. However, as pointed out by Ms Cruttenden, ‘there is little need to do so in the context of [her] daily activities’.[190]
[190] Ibid 27.
The evidence is that the Applicant walks independently, with no aids or physical assistance, inside her home. She walks slowly and cautiously and limits walking due to fatigue, nerve pain and mental health symptoms.[191] She uses a walking stick to walk outside, and her mobility in the community is limited by the distance she can walk before needing to sit and rest. On the evidence available to the Tribunal,[192] it is a single-point, rather than a four-point, walking stick. It is not said whether she uses it in other enclosed environments with which she is unfamiliar, and in which she may be able to steady herself on furniture or walls should the need arise. Nevertheless, she is able to walk without assistance,[193] and does not need the help of another person.[194] The evidence does not support the Applicant being unable to walk without reliance on a walking stick and unable to effectively or completely participate or undertake the activity of mobility without one.
[191] Ibid.
[192] Ibid 24, Photograph 6.
[193] Ibid 27.
[194] Ibid 29.
I consider that the Applicant’s mobility is limited by fatigue, pain, dizziness, and obesity. This last is also likely to be a significant contributory factor to her inability to stand for long periods, and contribute to her symptoms of limited endurance, fatigue, and pain. I have already addressed the question of its permanency.
The evidence does not support the Applicant having a substantially reduced capacity to mobilise herself, and can do so effectively without assistive technology or equipment other than the commonly used item of a single-point walking stick.
Section 24(1)(c)(v) – Self-care
The Access Guideline describes ‘Self-care’ as:
personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
Ms Welsh considered that the Applicant required assistance with ‘food preparation, cleaning, manual tasks that require bending/turning/standing more than five minutes’. She recommended that the NDIS supply the Applicant with three healthy meals a day. There was no evidence that the Applicant was unable to bend or turn. Dr Baduge asserted that the Applicant needed a shower chair and similarly seems to suggest that the Applicant needs assistance with manual tasks that require ‘standing, bending, turning’ for more than 5 minutes. Ms Whyte asserted that the Applicant cannot stand in the shower, needs prompting and guidance to shower and oral hygiene, cannot cook or make decisions about food independently, and needs ‘physical assistance with cooking and eating healthy meals’. Ms Whyte considered that the Applicant needed assistance in respect of the activity of self-care.[195] These physical disabilities, and the assertions that the Applicant is not able to bend or turn, are inconsistent with other evidence.
[195] Exhibit R1 T1F 29-30, Letter of Support from Support Worker Mandi Whyte dated May 2021.
Ms Cruttenden observed that the Applicant had no difficulty in independently toileting and post-toilet hygiene, would occasionally use a shower chair, and could wash her hair, brush her teeth, and groom herself. She could eat and drink and, albeit with an aversion to certain foods, prepare and cook meals.[196]
[196] Exhibit R2 Document 4 25, Report of Occupational Therapist Jayne Cruttenden dated 1 March 2022.
The Applicant’s evidence is that although she has difficulty standing for more than a short shower, she can toilet and perform other self-care tasks, although taking more time and with some greater difficulty than others might. She does not find eating pleasant due to aversion to certain foods, and does not like cooking food, and is selective about the meals she prepares; but the evidence does not support her being unable to eat, prepare or cook suitable meals, or order healthy meals in preference to unhealthy ones. The Applicant did not pursue her physical impairment as inhibiting her functional capacity. In any event, the evidence is not compelling that her not keeping her home free from clutter or clean is due to inability rather than prioritisation, contributed to by medication and fatigue.
There is no significant ‘gap’ in her ability to care for herself, although she may require assistance in some tasks from time-to-time or resort to a commonly used item when it comes to self-care.[197]
[197] Madelaine (n 4) at [121].
I am not satisfied that the Applicant has a substantially reduced functional capacity for self-care.
Section 24(1)(c)(vi) – Self-management
The Access Guideline describes ‘Self-management’ as:
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.
Ms Welsh, Dr Baduge, Ms Whyte and Ms Perera list a number of tasks that they assert the Applicant is unable to do or experiences difficulty with, and make broad recommendations as to the assistance she requires, but do not describe what the Applicant is capable of doing or meaningfully describe to what extent her ability to perform or complete the tasks is limited.
Ms Cruttenden describes several physical activities under the head of ‘self-management’, but also describes what she observed and what the Applicant told her about her ability to manage her life.
I accept that the Applicant has difficulties due to her bipolar disorder, and do not dismiss the challenges she faces. However, the evidence is that she can live alone; can decide with whom she lives; has insight into her limitations and adapts to them; can shop online as necessary; independently manages her finances and endeavours to live within her means; and seeks the advice of health professionals and friends about her condition and decision-making.
I accept that the Applicant has a reduced capacity for self-management, but I am not satisfied on the available evidence that it supports the Applicant having a substantially reduced functional capacity for self-management.
Section 24(1)(d) – impairment affects capacity for social or economic participation
Section 24(1)(d) requires that the prospective participant’s impairment or impairments affect their capacity for social or economic participation.
I am satisfied that on the balance of the evidence the Applicant’s bipolar disorder affects her capacity for economic participation. Although it may be capable of being managed by medication and other strategies, it limits her employability and scope for regular remunerative employment. However, in the light of my findings above, I need not consider the matter further.
Section 24(1)(e) – likely to require support under the National Disability Insurance Scheme for lifetime
The focus of section 24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems.
The nature of the supports that the Applicant was hoping for from the Scheme should she be a participant were not explained in detail.
Given my findings concerning the Applicant’s functional capacity, it is not necessary for me to consider section 24(1)(e) and whether she is likely to require support under the NDIS for her lifetime.
Section 25: Early intervention
The closest that the evidence comes to specifically addressing the issue of early intervention is that of Ms Welsh in her report of 1 September 2022. I have already noted its limitations.
The state of the evidence is that the Applicant’s bipolar disorder has stabilised, and she has medications and strategies to manage it. There is insufficient evidence to support my being satisfied that the provision of early intervention supports is likely to benefit the Applicant by reducing her future need for supports (section 25(1)(b)) or provide benefit to her in any of the aspects specified by section 25(1)(c). Generalised prognostications that providing wide-ranging supports will arrest the decline of the Applicant’s ‘mental health’ and ‘wellbeing’, which in turn will translate into improved functional capacity, are no substitute for evidence from suitably qualified specialists in the relevant fields addressing the criteria in section 25(1)(c)(i)-(iv).
CONCLUSION
Having regard to the above, I am not satisfied that the Applicant’s impairments attributable to her psychosocial conditions of bipolar disorder, PTSD, depression and anxiety result in a substantially reduced functional capacity to undertake any of the activities specified in section 24(1)(c) of the NDIS Act. I am not satisfied that the Applicant satisfies the early intervention requirements for entry to the Scheme.
Accordingly, I affirm the decision under review.

I certify that the preceding 170 (one hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal

..................... [Sgd]...................................................
Associate
Dated: 12 March 2024

Date(s) of hearing: 21 March 2023

Applicant: In person

Counsel for the Respondent: Mr Robert French

Solicitors for the Respondent: HWL Ebsworth

[2024] AATA 420

12 March 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Natural Justice

Procedural Fairness

Date(s) of hearing:	21 March 2023
Applicant:	In person
Counsel for the Respondent:	Mr Robert French
Solicitors for the Respondent:	HWL Ebsworth