Crewes and National Disability Insurance Agency (NDIS) - [2025] ARTA 695

Crewes and National Disability Insurance Agency (NDIS) [2025] ARTA 695 (14 April 2025)
Applicant/s:  Katherine Crewes
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2022/2251

Tribunal:Senior Member C Shepherd
Place:Adelaide
Date:14 April 2025

Decision:The decision under review is affirmed.
………………[SGD]………………………………….
Senior Member C Shepherd

Catchwords
NATIONAL DISABLITY INSURANCE SCHEME – access to the scheme – disability requirements – chronic fatigue syndrome – substantially reduced functional capacity – likely to require lifetime support under the NDIS – myalgic encephalomyelitis - early intervention requirements
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Cases
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11
Beezley v Repatriation Commission (2015) FCAFC 165
Secondary Materials
NDIS, Applying to the NDIS – Pre-legislation changes updated 14 October 2024
Statement of Reasons

This case concerns a 39-year-old Applicant, diagnosed with myalgic encephalomyelitis / chronic fatigue syndrome (ME/CFS), who seeks access to the National Disability Insurance Scheme (NDIS).
BACKGROUND
On 20 March 2021, the Applicant applied to become a participant in the NDIS. The Applicant indicated her main disability to be ME and her other disabilities to be Autism Spectrum Disorder, Post Traumatic Stress Disorder, Depression, Asthma, GORD and Irritable Bowel Syndrome.[1]
[1] Exhibit 1 Hearing Bundle, p 76-101.
On 5 January 2022, a delegate of the Respondent confirmed a decision that the Applicant did not meet the requirements to become a participant in the NDIS (reviewable decision).[2]
[2] Exhibit 1 Hearing Bundle, p 21-33.
On 17 March 2022, the Applicant applied for a review.[3]
[3] Exhibit 1 Hearing Bundle, p 4-7.
Hearing
The Tribunal heard the application on 11, 12, 13 and 17 February 2025. Final submissions were received by 18 March 2025.[4] The Tribunal is mindful of the Applicant’s submission that neither she, nor her husband, have formal legal training and that the Applicant was self-represented.[5]
[4] Applicant’s closing statement, 3 March 2025; Respondent’s closing submissions, 11 March 2025; Applicant’s response, 18 March 2025.
[5] Applicant’s Statement of Facts, Issues and Contentions, [1].
The Tribunal acknowledges the Applicant’s submission that the ‘process was incredibly fatiguing’ for her[6], despite the Tribunal conducting the proceeding over shorter hearing days and with frequent breaks. On 13 February 2025, the Tribunal invited the Applicant to seek to adjourn the hearing if she became too fatigued to continue.
[6] Applicant’s closing statement, [3].
The Tribunal regrets, but is unable to accept, the Applicant submission that she understood ‘that she was expected to cross examine the witnesses herself as each time she suggested that Adam may step in for her, both the Member and the Counsel for the Respondent expressed reservations’.[7] The Tribunal expressly agreed to the Applicant’s general request to seek the assistance of her husband in cross-examination of witnesses. Mr Li submitted, on a general basis, that cross-examination by the Applicant’s husband should not result in unfairness to the witness, to which the Tribunal agreed.
[7] Applicant’s closing statement, [4].
The Tribunal acknowledges the Applicant’s submission that her husband’s behaviour was disruptive to her during the hearing and impacted on her ability to prepare her closing submissions. The Tribunal notes that the Applicant has raised the fact and impact of her husband’s disabilities, and her potential vulnerabilities in that regard.[8]
[8] Applicant’s closing statement, p 1-2.
ISSUES
The issues before the Tribunal are as follows.
(a)Whether the Applicant, for the purposes of s 21(c)(i) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), meets the disability requirements under s 24, specifically:
(i)whether the Applicant’s impairment results in substantially reduced functional capacity to undertake one or more of the following activities: communication; social interaction; learning; mobility; self-care; self-management: s 24(1)(c), and
(ii)whether the Applicant is likely to require support under the NDIS for her lifetime: s 24(1)(e)
(b)Whether the Applicant, for the purposes of s 21(c)(ii) of the NDIS Act, meets the early intervention requirements under s 25.
It is not in dispute, and based on the evidence before me I am satisfied, that the Applicant meets:
(a)the age and residency requirements for the purposes of s 21(a) and s 21(b),
(b)s 24(1)(a), s 24(1)(b) and s 24(1)(d) of the NDIS Act.[9]
[9] Respondent’s Statement of Facts, Issues and Contentions [7]-[8]; Respondent’s Closing Submissions [2].
The Applicant did not pursue access based on any of the other conditions listed in her application, being Autism Spectrum Disorder, Post Traumatic Stress Disorder, Depression, Asthma, GORD and Irritable Bowel Syndrome. I do not make any findings in respect of those conditions. However, the Applicant refers to some of these conditions in evidence and submissions.[10]
[10] For example, Hearing Bundle p 349.
REQUEST FOR LEAVE TO SUBMIT NEW INFORMATION
The Respondent submitted that ‘a large portion’ of the Applicant’s written closing statement contained new information, identifying, as examples in [3] and [4] on page 1, and [2] on page 4, and Attachment 2 (the new information). The Respondent did not consent to leave being granted to the Applicant to rely on that new information and did not address that new information.[11]
[11] Respondent’s closing submissions [6].
The Applicant sought leave to have the new information considered.[12]
[12] Applicant’s response to Respondent’s closing submissions, [12].
Section 53 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) permits the Tribunal, in a proceeding for review of a decision, to determine the scope of the review by limiting the questions of fact, the evidence and the issues that it considers.
Save for the mention of any new information in paragraph ‎5, I have decided to determine the application on the evidence that was before the Tribunal at the close of the hearing without considering the new information for the following reasons.
(c)Section 9 of the ART Act requires the Tribunal to pursue the objective of providing an independent mechanism of review that, amongst other things, ensures that applications to the Tribunal are resolved as quickly as possible, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits.
(d)The application for review was lodged on 17 March 2022 and concerns a request to the Agency made in March 2021. The application for review has been before the Tribunal (and the Administrative Appeals Tribunal) for over three years.
(e)If the Tribunal were to consider the new information, it would be necessary to afford the Respondent procedural fairness by being given the opportunity to recall expert witnesses to respond to the new evidence and make any associated submissions. It would be necessary to provide an opportunity to the Applicant to reply. I estimate that determination of the application would be prolonged for at least another three months, if not longer.
(f)I am not satisfied that the new information is of sufficient probative value beyond the evidence already before the Tribunal, to assist the Tribunal with its task, described in paragraphs ‎27-‎31 below, of determining the Applicant’s functional capacity in terms of what she can and cannot do.
(g)It will remain open to the Applicant to make a new application for access to the Agency and provide any evidence in support of such an application.
STATUTORY FRAMEWORK
NDIS Act
As the Applicant’s request for access was made before 3 October 2024, sections 24, 25 and 27 of the NDIS Act in force immediately prior to 3 October 2024 apply because of the operation of s 126(1) of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Amendment Act).
Section 21(1) of the NDIS Act provides that a person meets the access criteria if the CEO is satisfied that the person meets age, residence and the disability or the early intervention requirements.
Section 24(1) of the NDIS Act, as it was prior to 3 October 2024, provides that a person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self-care;
(vi) self-management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
Section 25 of the NDIS Act, as it was prior to 3 October 2024, provides that a person meets the early intervention requirements if 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.
(d) the CEO is satisfied any early intervention supports that would be likely to benefit the person as mentioned in paragraphs (b) and (c) would be NDIS for the person.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
…
(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.
Access Rules
Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Access Rules) was made pursuant to s 27(b) of the NDIS Act and states:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) - if its result is that:
(a) the person is unable to participate effectively or completely in the activity or to perform tasks or actions required to undertake or participate effectively or completely in the activity without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance including physical assistance, guidance, supervision or prompting from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity even with assistive technology equipment, home modifications or assistance from another person.
Rule 5.8 of the Access Rules is a deeming provision, ‘with the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity’.[13]
[13] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [77].
Part 6 of the Access Rules deals with when a person meets the early intervention requirements.
Guidelines
The Agency’s guidelines entitled Applying to the NDIS – Pre-legislation changes published on 14 October 2024 (Access Guidelines) contain the applicable policy guidance for this matter.[14]
[14] Respondent’s closing submissions [45]-[47].
The Access Guidelines relevantly provide that a permanent impairment needs to substantially reduce a person’s functional capacity or ability to undertake activities in one of the following areas: communicating, socialising, learning, mobility, self-care and self-management. The Access Guidelines state:
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.
• assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.[15]
[15] Access Guidelines.
Section 24(1)(c) – construction/interpretation
The Applicant submits the word ‘reduction’ in s 24(1)(c) implies a comparison to some reference point and submits this should either be to ‘a person’s pre-disability capacity’ or to ‘age and gender matched controls’. The Applicant submits that for the Tribunal to fulfil its task of assessing whether the Applicant has a substantial reduction in functional capacity, the Tribunal must first establish the appropriate datum from which to measure reduction before it can consider if the observed reduction is substantial.[16]
[16] Applicant’s Statement of Facts, Issues and Contentions.
Of relevance is that in describing ‘communicating’ the Access Guidelines state ‘how you speak, write or use sign language and gestures, to express yourself compared to other people your age’.[17]
[17] Access Guidelines, p 8.
While I consider that evidence regarding a person’s pre-disability capacity or the capacity of another person of the same age and gender may be relevant to s 24(1)(c), such evidence is not required and may not be determinative. My reasons are as follows.
In my view, the word ‘reduced’ must be read in the context of s 24(1) as a whole and its meaning must be read and accommodated to the rest of the section.[18]
[18] Taylor v Public Service Board (1976) 137 CLR 208 at 213; 10 ALR 211 at 215; and Project Blue Sky Inc v Australia Broadcasting Authority [1998] HCA 28.
The Federal Court considered s 24 of the NDIS Act in Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan). Her Honour (as Chief Justice Mortimer was then) described how the concept of impairment enables assessment of the severity and permanency of a condition, and the effects of that condition through the evidence of the applicant, along with medical and clinical evidence.[19]
The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.[20]
That being the case, no arbitrary limits are placed on access to the NDIS. No decision-maker need be satisfied a person’s impairment is ‘serious’, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.[21]
…
The statutory concept of “substantially reduced functional capacity” requires no assessment by the decision-maker of how common the reduction in functional capacity might be, or whether the way in which the reduced functional capacity manifests itself is something that can be seen in a certain number of people.[22]
[19] Mulligan at [55].
[20] Mulligan at [55].
[21] Mulligan at [56].
[22] Mulligan at [75].
In National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster) the Full Court of the Federal Court said:
In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.[23]
[23] Foster at [64].
It is apparent from the decisions in Mulligan and Foster that the task for a decision-maker is to make a functional practical assessment of what a person can and cannot do, based on the evidence of the applicant, along with clinical and medical evidence. Evidence of lay witnesses may also be relevant. I do not accept that it is necessary for the Tribunal to establish datum from which to measure reduction before it can consider if the observed reduction is substantial.
Onus of proof
The Applicant does not bear a formal onus of proof, but the Tribunal can only decide based on relevant and probative material.[24]
[24] Beezley v Repatriation Commission [2015] FCAFC 165 at [68].
THE APPLICANT’S DISABLITY AND IMPAIRMENTS
The Applicant was diagnosed with CFS when she was 15 years old, which went into remission when she was 20 years old.[25] In or around 2013, when she was approximately 27 years of age, the Applicant’s physical and psychological conditions began to deteriorate, and she experienced post exertional malaise (PEM).[26]
[25] Exhibit 1, Hearing Bundle, p 36, 37 and 38.
[26] Exhibit 1, Hearing Bundle, p 214.
On 17 November 2021, Dr Aishwarya Sukhdeo, Rheumatologist, reported that the Applicant fulfilled the diagnostic criteria for ME/CFS.[27]
[27] Exhibit 1, Hearing Bundle, p 73-74.
Applicant’s evidence and submissions
The Applicant submits that the fundamental impairment due to her ME/CFS is fatigue and how quickly she becomes fatigued. The Applicant says that this affects her globally, reducing her cognitive and physical functions. The Applicant submits that the impacts of her condition ‘don’t neatly separate into the six recognised domains’.[28]
[28] Applicant’s closing statement, p 14.

The Applicant described her condition as a ‘fluctuating condition’, with intensity and severity fluctuating over days, weeks, and months in an unpredictable manner.[29] Relevantly, the Respondent has accepted that the Applicant’s condition is permanent. The NDIS Act recognises that impairments that are permanent may vary in intensity, be episodic or fluctuating: s 24(2) and s 24(3) of the NDIS Act. The Access Guidelines state:
Your needs might go up and down each day or each month…We consider your ability over time, taking into account your ups and downs.
[29] Applicant’s Statement of Facts, Issues and Contentions, [35].
In April 2024, the Applicant described her good days as ‘feeling like she has the flu, with a bit of a headache, some muscle pains and general exhaustion’. The Applicant said that on bad days, she is unable to do anything. The Applicant said that when she overdoes it, she can have an episode of PEM which she calls a ‘crash’, which can take days or weeks to recover from.[30]
[30] Exhibit 1, Hearing Bundle, p 348.
The Applicant relies on the Mayo Clinic article entitled Myalgic Encephalomyelitis / Chronic Fatigue Syndrome: Essential of Diagnosis and Management (Mayo Clinic guidelines).[31]
[31] Exhibit 1, p 53-70.
The Applicant relies on the National Institute for Health and Care Excellent guideline published on 29 October 2021 entitled Myalgic encephalomyelitis (or encephalopathy)/chronic fatigue syndrome: diagnosis and management (NICE guidelines).[32] The NICE guidelines describes PEM as:
The worsening of symptoms that can follow minimal cognitive, physical, emotional or social activity or activity that could previous be tolerated. Symptoms can typically worsen 12 to 48 hours after activity and last for days or even weeks, sometimes leading to a relapse. Post-exertional malaise may also be referred to as post-exertional symptom exacerbation.[33]
[32] Exhibit 1, Hearing Bundle p 113-197.
[33] Exhibit 1, Hearing bundle, p 167.
Referring to the description of PEM in the NICE guidelines, the Applicant submits that ‘this response to exertion is not explained by ‘deconditioning’ or any psychological problem, but early research suggests multiple possible causes (Mayo Clinic p 5)’. The Applicant submits that she ‘experiences this challenge, with her deterioration meaning that PEM is easier to trigger now, and therefore more frequently experienced’.[34]
[34] Applicant’s Statement of Facts, Issues and Contentions, [27].
The Applicant considers that the only management strategy currently available is pacing, which she described as ‘the daily practice of assessing one’s energy levels and adjusting effort accordingly’.[35] The Applicant describes pacing as ‘choosing between what I need to achieve and what I can survive neglecting’ and as involving ‘constant self-monitoring’.[36]
[35] Exhibit 1, Hearing Bundle, p 216.
[36] Exhibit 1, Hearing Bundle, p 349.
The Applicant submitted that ‘it is well established in the literature on ME/CFS that both stress and infections can result in erosion of a patient’s baseline functional capacity which can last for an extended period or become permanent’.[37]
[37] Exhibit 1, Hearing bundle, p 320.
Deterioration over 2024
In February 2025, the Applicant submitted that she had ‘experienced a further significant reduction in her functional capacity over the past year due to a combination of stressful personal events and a series of medical issues, including multiple infections’.[38]
[38] Applicant’s Statement of Facts, Issues and Contentions, [5].
The Applicant makes the following submissions.
(a)The Applicant contracted a respiratory illness which increased her symptoms substantially, resulting in her needing to rest for ‘at least 80% of her waking hours’. Her ability to walk was further restricted and she realised that this was having a deleterious impact on her in many ways. During this time, she was able to borrow a third-hand, manual wheelchair.[39]
(b)In March 2024, she was dismissed from her employment. The financial distress caused by losing her job had a significant impact on her wellbeing.
(c)The Applicant’s husband had a ‘prolonged, explosive argument’ with her, where he ‘yelled at her, physically intimidated her…’. The Applicant separated for about two weeks from her husband. The Applicant described not being able to fulfil the tasks her husband would usually do such as washing dishes and clothes and caring for their animals. The Applicant submits that this experience showed her ‘that she could no longer live independently and that she had no other option but to reunify with [her husband] even though the thought terrified her’.[40]
(d)In September 2024, the Applicant experienced the unexpected and sudden death of one of her dogs, which ‘absolutely shattered’ the Applicant and her husband.[41]
(e)The Applicant’s husband’s grandfather died.[42]
(f)As the Applicant had been resting on her recliner, she developed back pain from the lack of lumbar support.[43]
(g)In late October 2024, the Applicant had a minor surgical procedure to remove a cyst. The wound became infected, requiring six rounds of antibiotics to heal and was associated with the sudden onset of vertigo-like neurological symptoms. The Applicant submits that her GP said the symptoms were ‘consistent with and best explained by her ME/CFS as exacerbation of symptoms following infections’.[44]
[39] Applicant’s Statement of Facts, Issues and Contentions, [8].
[40] Applicant’s Statement of Facts, Issues and Contentions, [9].
[41] Applicant’s Statement of Facts, Issues and Contentions, [13].
[42] Applicant’s Statement of Facts, Issues and Contentions, [14].
[43] Applicant’s Statement of Facts, Issues and Contentions, [15].
[44] Applicant’s Statement of Facts, Issues and Contentions, [16].
The Applicant submits that she is ‘currently unable to support her own head for longer than it takes to eat a meal before returning to rest with her head supported’. She submits that ‘many days she hasn’t had the energy to change out of her pyjamas with eating and toileting taking all her energy’.[45] Referring to her decrease in capacity, the Applicant submits ‘it is not possible to know if this current exacerbation will provide to be temporary or represents a further permanent decline in my capacity’.[46]
[45] Applicant’s Statement of Facts, Issues and Contentions, [17].
[46] Applicant’s Statement of Facts, Issues and Contentions, [6].
In cross-examination, the Applicant said that now she and her husband are reliant on Centrelink and it is very stressful. During the hearing, the Applicant described having experienced significant stress in the workplace, and having to plan carefully when she would shower and wash her hair for work. The Applicant compared her capacity to work in 2012, when her payslip reflected that she worked for 45 hours per week, with her capacity in 2024 which reflected 15 hours of work. The Applicant said that her future prognosis is uncertain, but that she does not expect to regain capacity she had in 2020.
The Applicant states that she undertakes activities more slowly, in modified ways and with an extreme need for rest before, during and after each activity. The Applicant says that this need for extensive amounts of rest is, in and of itself, disabling.[47]
[47] Applicant’s Statement of Facts, Issues and Contentions, [27].
Video and journal evidence
The Applicant tendered evidence comprising video evidence and the Applicant’s husband’s journal, described as follows.
1.2025-1-29 Kat’s walking with stick
2.2025-1-31 timelapse
3.2025-2-1 timelapse
4.2025-2-2 timelapse
5.2025-2-3 timelapse
6.2025-2-4 Kat’s comms in PEM
7.2025-2-4 timelapse
8.Adam’s handwritten journal
9.List of video files
10.Type copy of Adam’s journal[48]
[48] Exhibit 2.
The Applicant’s husband spoke to a number of these items in evidence, and the timelapse videos were played during the hearing.
Dr Kurram Waris, Treating General Practitioner
In March 2021, Dr Waris reported that there were ‘no known, available, evidence based treatments which will remedy’ the Applicant’s impairment. Dr Waris considered that the Applicant’s condition caused functional disability in all six domains including mobility, communication, social interaction, learning new information and self-care/management.[49]
[49] Exhibit 1, Hearing Bundle, p 73-74.
Dr Aishwarya Sukhdeo, Treating Rheumatologist
On 17 November 2021, Dr Sukhdeo reported that the Applicant fulfilled the diagnostic criteria for myalgic encephalomyelitis / chronic fatigue syndrome (ME/CFS) and stated that she had ‘profound levels of fatigue’ which ‘limits her ability to engage in occupational and personal activities of daily living’. Dr Sukhdeo reported that the Applicant’s prognosis was uncertain but considered that the Applicant would benefit from allied health input to improve her function, including exercise physiology or physiotherapy and psychology.[50]
Dr David Gorman, Consultant General Physician, Pain Management Physician and Medical Oncologist (Independent Medical Expert)
[50] Exhibit 1, Hearing Bundle, p 200.
Dr Gorman produced a report dated 10 May 2023, based on a brief provided by the Respondent’s then legal representative (Gorman report).[51] Dr Gorman gave oral evidence at the hearing.
[51] Hearing Bundle, Exhibit 1, TB7.
Dr Gorman did not undertake a clinical assessment of the Applicant. The Applicant submitted that she was ‘unsatisfied with the statements [Dr Gorman] gave to HWL Ebsworth lawyers prior to his undertaking the independent medical assessment and that this was the reason [she] was not examined by Dr Gorman in person’.[52]
[52] Applicant’s closing statement, p 9.
Dr Gorman confirmed that the Applicant met the criteria for CFS following his review of her medical records.[53]
[53] Exhibit 1, Hearing Bundle, p 386.
In relation to treatment or management, Dr Gorman’s opinion was that:
…a multidisciplinary approach involving psychological and physical therapists is the best evidence based approach.
However, the results have not always been positive and more recent guidelines such as from NICE focussed much more on pacing and energy conservation rather than a graduated increase in exercise.
However, intuitively, to maintain muscle condition as well as psychological health, maximising physical activity is ideal so long as it is done in a paced way.[54]
[54] Exhibit 1, Hearing Bundle, p 388-389.
During the hearing, Dr Gorman explained that he is of the belief that PEM does not cause stepwise deterioration in ME/CFS. Dr Gorman said that he interprets pacing to mean a graduated pace in activity, ‘but not lying down all day’. Dr Gorman said that his intuitive view is that a person must maintain some level of activity, and rest after the activity, and try again the next day. Dr Gorman said that the end result of energy conservation is lying down and doing nothing, which he does not believe is the best result for anyone’s health.
Dr Gorman referred to the NICE guidelines as being controversial, published five years ago and due for revision. Dr Gorman said that the controversy relates to an ‘overreaction’ to graduated exercise treatment for some patients.
Dr Gorman considers that there is no pharmacological treatment for the chronic fatigue syndrome itself. Dr Gorman considered that when the Applicant is in a period of remission and stability, she can follow self-managed activity and do things such as yoga, meditation, and mindfulness without the intervention of a professional. Dr Gorman considered that at times of deterioration, the Applicant would require input of professionals such as psychologist, psychiatrist, exercise physiologist and physiotherapist.[55]
[55] Exhibit 1, Hearing Bundle, p 390.
Dr Gorman’s view was that the Applicant’s impairments would vary over time, noting that there may be improvements and there may be further deterioration. In cross-examination Dr Gorman cautioned that as the Applicant’s condition becomes more entrenched, and she ‘becomes more deconditioned and unfit and possibility not so good psychologically’, the outlook for remission does not look favourable.
Dr Gorman was of the belief that the Applicant could get support needed through the general systems of service delivery particularly the general practitioner Chronic Disease Plans, for Medicare to cover exercise physiology, physiotherapy and psychology.[56]
[56] Exhibit 1, Hearing Bundle, p 391.
Applicant’s contentions regarding Dr Gorman
In her submissions, the Applicant noted that ‘Dr Gorman’s expertise in the diagnosis or management of Chronic Fatigue Syndrome was not examined’, and that Dr Gorman ‘has not published a singled paper on ME/CFS’.[57] The Applicant submitted that Dr Gorman ‘made no direct claim that he treated patients for ME/CFS himself’.[58]
[57] Applicant’s closing statement, p 9.
[58] Applicant’s closing statement, p 9.
The issues and allegations raised by the Applicant are as follows.
(a)Dr Gorman had not substantively reviewed summonsed medical records.[59]
(b)There were discrepancies between how Dr Gorman summarised particular medical documents and the documents themselves, and that Dr Gorman ‘lifted quotes from their context in a way which results in the meaning of the original passage being obscured and/or fundamentally altered’. [60]
(c)Dr Gorman’s answers given under oath alter the plain reading of his report.[61]
(d)Dr Gorman mischaracterised the Applicant and her treatment as regards melanoma, which was ‘wholly unprofessional of Dr Gorman’.[62]
(e)Dr Gorman did not reference anything written by the Applicant’s general practitioner, Dr Waris.[63]
(f)Dr Gorman’s representation of the Applicant’s clinical history has many discrepancies. The Applicant submits that ‘these discrepancies demonstrate a mishandling of my medical history by Dr Gorman, and that this ought to reduce the weight place upon Dr Gorman’s report when considering my eligibility for the NDIS’.[64]
(g)Dr Gorman did not understand or was not familiar with the NICE and Mayo Clinic guidelines.[65]
(h)It was inconsistent that Dr Gorman provided an opinion on allied health for the Applicant when he had not been able to develop an understanding of the Applicant’s current impairments or her current regime. The Applicant considers that it would have been appropriate for Dr Gorman to suggest an alternative method of determining her needs ‘such as a Functional Capacity Assessment’.[66]
[59] Applicant’s closing statement, p 11.
[60] Applicant’s closing statement, p 11.
[61] Applicant’s closing statement, p 12.
[62] Applicant’s closing statement, p 12.
[63] Applicant’s closing statement, [12].
[64] Applicant’s closing statement, p 13.
[65] Applicant’s closing statement, p 10-11.
[66] Applicant’s closing statement, p 13.
The Respondent submits a large proportion of the Applicant’s cross-examination of Dr Gorman engaged in collateral issues that do not assist in assessing Dr Gorman’s opinion on the issues in dispute. The Respondent submits that an attempt by a medical professional to summarise a patient’s complex medical history will require professional judgment about what to include and what to omit.[67]
[67] Respondent’s written closing submissions, [33]-[36].
The Applicant sought to respond to comments by Dr Gorman concerning the NICE guidelines, through Attachment 2 to her closing statement.[68] The Applicant is of the view that Dr Gorman’s assertion that the NICE Guidelines are ‘contended’ is not credible.[69] The Applicant submitted that she does not consider the issue of any controversy as regards the NICE guidelines to be significant.[70]
[68] Applicant’s closing statement, p 14.
[69] Applicant’s closing statement, [13].
[70] Applicant’s Statement of Facts, Issues and Contentions, p 14.
Consideration
I do not accept the Applicant’s allegations about and criticisms of Dr Gorman. I accept the Respondent’s submission that an attempt by a medical professional to summarise a person’s medical history requires judgment about what to include and omit. My impression of Dr Gorman during the hearing reflects the submission of the Respondent that ‘Dr Gorman thoughtfully explained his opinion, made appropriate concessions about the limitations of his observations’.[71]
[71] Respondent’s closing submission, [32].
I consider it unnecessary for the Tribunal to make a finding as to any controversy or otherwise about the NICE guidelines. The Applicant herself does not consider the issue to be significant.[72] As discussed in paragraph ‎27-‎31, the Tribunal must determine the Applicant’s functional capacity and what she can and cannot do. The evidence relevant to this application is evidence of the Applicant and lay witnesses, along with medical and clinical evidence, as to the Applicant’s functional capacity.
[72] Applicant’s Statement of Facts, Issues and Contentions, p 14.
The weight I give to Dr Gorman’s evidence is informed by the following.
(a)As discussed in paragraph ‎53, Dr Gorman did not undertake a clinical evaluation of the Applicant. His assessment of the Applicant was based on his examination of the documents provided to him.[73]
(b)Dr Gorman’s qualifications and professional associations, as indicated in the Gorman report, include Bachelor of Medicine, Bachelor of Surgery; Bachelor of Medical Science; Fellow of the Royal Australasian College of Physicians; Fellow of the Australian College of Legal Medicine; Fellow of the Faculty of Pain Medicine of the Australian and New Zealand College of Anaesthetists; Fellow of the Royal Australasian College of Physicians, Chapter Palliative Medicine.[74]
(c)Dr Gorman provided a statement of his qualifications/expertise which included specialist expertise in CFS and in the management and functional capacity in chronic medical illnesses.[75]
(d)Dr Gorman is accredited in the Australian Medical Association Guides to Evaluation of Permanent Impairment 4^th and 5^th Edition and is a Permanent Impairment Assessor with various bodies.[76]
(e)Dr Gorman signed a declaration on 5 April 2023 acknowledging an overriding duty to provide impartial assistance to the Tribunal, and that no matters of significance have been withheld from the Tribunal.[77]
(f)Dr Gorman described himself as:
…a Consultant Physician with experience and expertise in General Medicine, Medical Oncology and Pain Management. I have special interest in the management of neuropathic spinal pain and chronic pain disorders, as well as management and functional capacity in chronic medical illnesses.[78]
[73] Exhibit 1, Hearing Bundle, p 383.
[74] Exhibit 1, Hearing Bundle, p 381-382.
[75] Exhibit 1, Hearing Bundle, p 382.
[76] Exhibit 1, Hearing Bundle, p 383.
[77] Exhibit 1, Hearing Bundle, p 392.
[78] Exhibit 1, Hearing Bundle, p 382.
Christian Byrnes, Occupational Therapist
Mr Christian Byrnes, Occupational Therapist, assessed the Applicant on 18 and 23 August 2023, and provided a report dated 28 August 2023 (Byrnes report).
In cross-examination, Mr Byrnes confirmed that he observed the Applicant to fatigue ‘quicker than he would have expected’ when he was undertaking the assessment.
Mr Byrnes found that in the Fatigue Severity Scale (FSS), the Applicant scored ‘58 out of a possible 63’ or an average of 6.4, consistent with a significant level of fatigue negatively impacting on capacity to perform activities of daily living.[79]
[79] Exhibit 1, Hearing Bundle, p 414.
Ashleigh Roser, Occupational Therapist
Ms Ashleigh Roser, Occupational Therapist, gave evidence that she first met the Applicant in October 2022, during an assessment of the Applicant’s husband.
Ms Roser produced a report dated 8 December 2023 and updated on 2 January 2024.[80] The report states that the Applicant self-referred for the purpose of a functional capacity evaluation. Ms Roser visited the Applicant for an assessment on 29 November 2023. In cross-examination, Ms Roser confirmed that her opinion and understanding of the Applicant’s capacity was based on her observations of the Applicant and on the Applicant’s self-reporting. In her report, Ms Roser noted ‘during the assessment, Ms Crewes was observed to lay on the lounge for the entirety of the assessment (approximately 2 hrs, 15 minutes)…’.[81]
[80] Exhibit 1, Hearing Bundle, p 336.
[81] Exhibit 1, Hearing Bundle, p 339.

On 9 July 2024, Dr Waris provided a Medicare funded referral for five services for the Applicant to Ms Roser.[82] In 2024, the Applicant sought assistance from Ms Roser to improve her supports while resting, and to adjust her wheelchair to suit her needs.[83] In cross-examination, Ms Roser confirmed that she did not perform an assessment of the Applicant when she visited her in 2024, as that was not the purpose of the visit.
[82] Exhibit 5.
[83] Applicant’s Statement of Facts, Issues and Contentions, [15].
Ms Roser said that when she met the Applicant in 2022, the Applicant was sitting upright. Ms Roser said that in 2024, the Applicant was lying down and was dishevelled in her appearance. Ms Roser said that she observed the Applicant to have a lower functional capacity in 2024, than in 2022.
Ms Roser explained that pacing involves determines a person’s own individual limits and understanding that a person can’t do everything they may want to do. For the Applicant, this involved scheduling activities, picking one or two stores to visit and then resting, when preparing meals to stand for a short period. Ms Roser said that this means that more time is required to do the same or less activities as previously was the case.
Ms Roser considers that while the Applicant is capable of completing many of her daily tasks, she experiences significant impairment in the number of tasks she can complete due to the impacts of PEM.[84]
[84] Exhibit 1, Hearing Bundle, p 343.
Respondent’s contentions regarding Ms Roser’s evidence
The Respondent contends that Ms Roser was an unreliable witness for the following reasons.
(a)Ms Roser had a tendency to express opinions which were calculated to assist the Applicant’s case without proper basis for those opinions.
(b)Ms Roser’s opinions are largely based on self-reported information by the Applicant.
(c)Ms Roser’s opinions are deficient because she had not observed or assessed the functional capacity of the Applicant.
(d)Ms Roser was an argumentative witness.
The Respondent refers to Ms Roser’s opinion that repeated episodes of post exertional malaise (PEM) will result in a deterioration of MC/CFS and that this opinion was reflective of the Applicant’s proposition, as outlined in paragraph ‎42 above. Following a direction by the Tribunal, Ms Roser produced a document entitled ‘Request for additional supporting information re: long term impacts of PEM in the case of Katherine Crewes v. NDIA’.[85] The articles were tendered in a supplementary tender bundle.[86]
[85] Exhibit 6.
[86] Exhibit 5 and Exhibit 6.
The Respondent submits that the articles relied upon by Ms Roser do not support the opinion that repeated episodes of PEM will result in a deterioration of ME/CFS.[87]
[87] Respondent’s closing submissions [9]-[20].
The Applicant rejects the Respondent’s submissions regarding Ms Roser and points out that her own submission regarding the impact of repeated episodes of PEM used the word ‘can’ rather than ‘will’ in relation to deterioration of ME/CFS.[88] The Applicant had submitted that the various sources characterise PEM as a worsening of symptoms which ought to be avoided for its own sake, and that the sources note that PEM can sometimes result in a permanent worsening of baseline capacity.[89]
[88] Applicant’s response to Respondent’s closing statement, [22]-[34].
[89] Applicant’s closing statement, p 10.
Consideration
I consider it unnecessary, in determination of this application, for the Tribunal to make a finding, at an academic level, as to whether repeated episodes of PEM can result in deterioration of ME/CFS. As discussed in paragraph ‎27-‎31, the Tribunal must determine, based on evidence from the Applicant and lay witnesses, along with medical and clinical evidence, the Applicant’s functional capacity and what she can and cannot do. The evidence relevant to this application is evidence of the Applicant and lay witnesses, along with medical and clinical evidence, as to the Applicant’s functional capacity.
The weight I give to Ms Roser’s evidence is informed by the following.
(a)Ms Roser is a qualified and registered occupational therapist. Ms Roser is not a medico-legal expert.[90]
(b)Ms Roser has not claimed to have any particular expertise or qualifications in ME/CFS. Her opinions expressed in her report were referenced to various sources.
(c)Ms Roser did not conduct a functional evaluation or any assessment of the Applicant in October 2022.
(d)Ms Roser’s attendance on the Applicant in November 2023 informed her opinion on the Applicant’s functional capacity outlined in her report dated 8 December 2023 (updated on 2 January 2024) and was based on the Applicant’s self-reporting and on Ms Roser’s observations of the Applicant lying on a lounge for the entirety of the assessment. Ms Roser did not observe the Applicant undertake any tasks of daily living.
(e)Ms Roser did not conduct any functional capacity evaluation of the Applicant in late 2024 as that was not the purpose of her visit at that time.
DO THE APPLICANT’S IMPAIRMENTS RESULT IN SUBSTANTIALLY REDUCED FUNCTIONAL CAPACITY TO UNDERTAKE ONE OR MORE OF THE ACTIVITIES UNDER S 24(1)(C)(I)-(VI)?
[90] Exhibit 1, Hearing Book, p 336.
The Respondent accepts that the Applicant experiences reduced capacity but submits that she does not experience substantially reduced capacity in any of the activities under s 24(1)(c).[91]
[91] Respondent’s closing submissions [49].
Communication
The description of communicating in the Access Guidelines assists in considering what comprises the tasks that make up the activity of communication.
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.[92]
[92] Access Guidelines.
The Applicant explained that ‘brain fog’ and hypersensitivity to external stimuli often prevent her from doing anything more than signalling her discomfort or distress and that at times she ‘does not possess any of the communicative faculties of an adult human being’.[93]
[93] Applicant’s SFIC at [40].
The Applicant’s husband gave evidence that the Applicant has good communication skills, but when she is exhausted, she will struggle to think of words and then can only make gestures.[94]
[94] Exhibit 1, Hearing Bundle, p 359.
During the hearing, a video was played that had been recorded of the Applicant by her husband on her on one of her bad days, indicated to be 4 February 2025. The video depicted the Applicant lying on a bed and not speaking.[95]
[95] Exhibit 2, video ‘2025-2-4 Kat’s comms in PEM’.
In August 2023, Mr Byrnes reported that the Applicant was ‘prepared at the planned commencement of the assessments, and was able to communicate effectively, with her speech, writing and following directions’.[96] In oral evidence, Mr Byrnes confirmed his observation that at the end of the first assessment, the Applicant struggled to communicate with her speech and that she could not follow directions clearly.[97] Mr Byrnes wrote:
By the end of the first assessment, [the Applicant] demonstrated signs of a sudden significant increase in fatigue and was no longer able to effectively communicate.[98]
[96] Exhibit 1, Hearing Bundle.
[97] Christian Byrnes, oral evidence.
[98] Exhibit 1, Hearing Bundle, p 409.
Ms Roser’s evidence was that the Applicant is independent in verbal and written communication and can communicate effectively. Ms Roser stated that the Applicant was able to briefly email on the day following the assessment in November 2023 to provide feedback on her recovery. Ms Roser reported that the Applicant told her that there were times where she can only nod or shake her head or respond with one-word answers.[99]
[99] Exhibit 1, Hearing Bundle, p 340.
In cross-examination, Ms Roser confirmed that in 2023 the Applicant could communicate independently, was able to speak without assistance and able to understand without assistance. Ms Roser said that in October 2024, the Applicant could speak without assistance but experienced some difficulty and noted that the Applicant was emotional and upset due to personal issues. Ms Roser described the Applicant as communicating ‘eloquently’.
The Respondent submits that the Applicant was able to participate in the Tribunal hearing by preparing written statements, giving an opening address and asking witnesses questions in cross-examination, and that the Tribunal has ‘first hand evidence about the applicant’s ability to communicate using written and spoken language’.[100] I agree that the Applicant participated in the Tribunal proceedings using written and spoken language. However, I base my findings as to the Applicant’s functional capacity on the evidence of the Applicant, her husband and the expert witnesses and the documents before the Tribunal, rather than on observations of the Applicant’s abilities during the Tribunal proceedings.
[100] Respondent’s closing submissions [61].
Conclusion in relation to communication
Based on the evidence described in paragraphs ‎85-‎90, I find that the Applicant can express herself through oral and written communication. I accept that the Applicant’s impairment results in a reduced functional capacity to undertake tasks comprising the activity of communication at times.
Based on the evidence described in paragraphs ‎85-‎90 and my findings above, I do not consider that the effect or outcome of the Applicant’s impairment on her performance of the activity of communication satisfies r 5.8(a), (b) or (c) of the Access Rules for the purposes of deeming the Applicant to have a substantially reduced functional capacity to undertake the activity of communication.
Based on the evidence described in paragraphs ‎85-‎90 and my findings above, I am not satisfied the Applicant’s impairment results in a substantially reduced functional capacity to undertake tasks and actions comprising the activity of communication.
Social interaction
The description of ‘socialising’ in the Access Guidelines assists in identifying the tasks that comprise the activity of social interaction.
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.[101]
[101] Access Guidelines.
The Applicant gave evidence that:
(a)she rarely has the energy to drive herself anywhere and her husband has driven her to church, although there are weeks ‘when being a passenger in the car and walking into and out of the meeting hall are beyond her capacity’[102]
(b)her severe fluctuations in energy have also limited the location of her church attendance, meaning the loss of relationships[103]
(c)she can and does maintain communication with acquaintances on social media, but that ‘this in no way meets her need for social interaction’[104]
(d)she has lost employment, has not gone shopping, visited a café or gallery without assistance in many months, probably years.[105]
[102] Applicant’s Statement of Facts, Issues and Contentions [44].
[103] Applicant’s Statement of Facts, Issues and Contentions [46].
[104] Applicant’s Statement of Facts, Issues and Contentions [47].
[105] Applicant’s Statement of Facts, Issues and Contentions [47]-[48].
In cross-examination, the Applicant explained that she spends time playing simple puzzle games on her mobile phone, messaging for a ‘minor amount of time’, and watches YouTube videos online. The Applicant said that she might spend 1 or 2 hours on social media, and while she might engage with content, she would not characterise the people as friends. The Applicant said that she had a visit from a friend in January but had not had a friend visit her home for months prior to that. The Applicant said that her friends are very aware of her condition and are accommodating. The Applicant said that her best friend has a very similar condition and limitations. The Applicant said that because of her other conditions, she can forget to get in touch with friends, but that is understood in neurodivergent friendships. The Applicant said that she may have one or two phone calls with a family member in a month.[106]
[106] 11 February 2025.
In 2024, the Applicant’s husband stated that the Applicant enjoys meeting people in person and would try to call her friends regularly or contact them via social media. Mr Crewes noted that ‘it’s a challenge for her to keep in contact with her friends because she does not have much energy to do it’.[107]
[107] Exhibit 1, Hearing Bundle, p 359.
In 2023, Mr Byrnes reported that the Applicant ‘demonstrated capacity to engage in social interaction, apart from the days when she is most fatigued’, ‘reported that she is able to maintain friendships’, and ‘demonstrated capacity to interact with others in social situations’.[108]
[108] Exhibit 1, Hearing Bundle, p 21-23.
In her report, Ms Roser noted that the Applicant had advised that she was independent in maintaining her social interactions however to manage her symptoms requires pacing and selection of which activities were high priority for her. Ms Roser referred to the Applicant previously attending church four times per week, and now having difficulty attending once per week.[109] During the hearing, Ms Roser said that the Applicant attends social activities but has to pick what she attends.[110]
[109] Exhibit 1, Hearing Bundle, p 340.
[110] 12 February 2025.
Conclusion in relation to social interaction
Based on the evidence described in paragraphs ‎97-‎100, I find that:
(a)the Applicant’s impairment results in a reduced capacity to engage in in-person social interaction at times, which results in a reduction in frequency of opportunity to engage in social interaction and a loss of relationships
(b)the Applicant has the ability and personal skills to socially interact
(c)the Applicant maintains social connections in person
(d)the Applicant engages with acquaintances through social media
(e)the Applicant speaks family members by phone
(f)the Applicant attends church services.
Based on the evidence in paragraphs ‎97-‎‎100 and my findings above, I do not consider that the effect or outcome of the Applicant’s impairment on her performance of the activity of social interaction satisfies r 5.8(a), (b) or (c) of the Access Rules for the purposes of deeming the Applicant to have a substantially reduced functional capacity to undertake the tasks comprising the activity of social interaction.
Based on the evidence in paragraphs ‎97-‎100 and my findings above, I am not satisfied the Applicant’s impairment results in a substantially reduced functional capacity to undertake tasks and actions comprising the activity of social interaction.
Learning
The description of ‘learning’ in the Access Guidelines assists in identifying the tasks that comprise the activity of learning.
Learning – how you learn, understand and remember new things, and practise and use new skills
The Applicant contends that her capacity to learn is severely limited because of the cognitive impairments due to her ME/CFS and has a ‘drastically reduced capacity for learning’. The Applicant contends that her reduction in learning capacity ‘could only be established by neuropsychological evaluation’ which she does not have the financial capacity to pursue.[111]
[111] Applicant’s Statement of Facts, Issues and Contentions, [50]–[51].
In cross-examination, the Applicant explained that she has a higher-than-average cognitive capacity, having achieved a post graduate degree in engineering. The Applicant said that her impairments destroyed her career as a geotechnical engineer. She said that she was dismissed from her job, which was difficult because she was the breadwinner. The Applicant referred to researching ME/CFS through academic articles and newsletters and by following social media accounts.[112]
[112] 11 February 2025.
In 2023, Mr Byrnes considered that the Applicant demonstrated a capacity to engage in learning.
Ms Roser considered that the Applicant’s difficulty in maintaining employment reflected a reduction in her learning capacity.
The Respondent refers to the Applicant’s ability to engage in ‘rigorous intellectual debate’ with Dr Gorman during the hearing. As discussed in paragraph ‎91, I do not rely on the Applicant’s presentation during the hearing to base my assessment of the Applicant’s functional capacity.
Conclusion in relation to learning
I am not satisfied that the Applicant’s loss of employment indicates that the Applicant has a substantially reduced functional capacity to undertake tasks that comprise the activity of learning. The Applicant submits that her reduction in learning capacity could only be established by a neuropsychological evaluation, and evidence of that nature is not before the Tribunal.
I am not satisfied that the effect or outcome of the Applicant’s impairment on the performance of the activity of learning satisfies r 5.8(a), (b) or (c) of the Access Rules for the purposes of deeming the Applicant to have a substantially reduced functional capacity to undertake the activity of learning.
I am not satisfied that the Applicant’s impairment results in a substantially reduced functional capacity to undertake tasks that comprise the activity of learning.
Mobility
The description of ‘mobility’ or ‘moving around’ in the Access Guidelines assists in identifying the tasks that comprise the activity of mobility.
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 and legs.
In early 2025, the Applicant submitted that she ‘rarely has the energy to drive herself anywhere’, and that her husband had driven her to church several times in the previous six months. The Applicant said that there are times when being a passenger in a car and walking into the hall are beyond her capacity.[113]
[113] Applicant’s Statement of Facts, Issues and Contentions, [44].
The Applicant submitted that in 2024, she had been resting on her recliner for on average 80% of her waking hours and she developed back pain from the lack of lumbar support.[114] The Applicant submits this demonstrates a clear reduction in her capacity to mobilise around her home.[115]
[114] Applicant’s Statement of Facts, Issues and Contentions, [15].
[115] Applicant’s closing statement, p 8.
The Applicant says because her house has multiple levels, when she experiences any level of reduced capacity she has ‘little choice but to remain house and couch bound’. Her decline means that when visiting her general practitioner, she needs to be driven and dropped off and picked up as close as possible to the entrance.[116]
[116] Applicant’s Statement of Facts, Issues and Contentions, [59].
In cross-examination, the Applicant said that her condition fluctuates, hour to hour and day to day. The Applicant said that her husband made her a wooden walking stick. She said that while she can mobilise without her walking stick, some days she cannot move without the walking stick at all. The Applicant said that she can mobilise around her kitchen to prepare food for perhaps five minutes or so. The Applicant said that she is generally able to make her way from the couch to the toilet independently, often with the use of her stick.[117] In early 2025, the Applicant described using the walking stick to mobilise around her house and her community, for example visits to church, on good days.[118]
[117] 11 February 2025.
[118] Applicant’s Statement of Facts, Issues and Contentions, [58].
The Applicant described borrowing a manual wheelchair from a friend in 2024, with the purpose of reducing the fatigue induced by walking.[119] The Applicant described occasions where her husband took her to a local garden nursery, a shopping centre, and an art gallery using the wheelchair. The Applicant noted reliance on her husband to push the wheelchair and that she required extensive rest after the outings.
[119] Applicant’s Statement of Facts, Issues and Contentions, [59].

Mr Crewes’ evidence was that the Applicant spends most days lying on the couch. He said that the Applicant does not have energy to mobilise around shops. Mr Crews described the Applicant becoming exhausted by having to bend down to do anything in the garden or put on her shoes. Mr Crewes described the Applicant resting before feeding their chickens in the backyard and resting again afterwards.
Mr Crewes spoke to the video evidence, described in paragraph ‎48.[120] The videos played depicted the Applicant over a 12-hour period on five days in January 2025. The videos depicted the Applicant, for most of the time, in a reclining position on the couch either on her laptop or phone, and at other times sleeping. The videos depict that sometimes the Applicant will use her walking stick when she gets up from the couch, but not always.
[120] Exhibit 2.
Mr Byrnes’ opinion was that the Applicant was able to drive a vehicle with manual transmission for 30-40 minutes, and able to travel via train[121]; demonstrated capacity to independently transfer on/off the toilet, reported capacity to independently transfer in/out of the shower, reported capacity to independently transfer on/off the bed, demonstrated capacity to independently transfer on/off a chair[122]; demonstrated reasonable balance with standing, mobilising and with transfers, was able to walk on her heels and her toes, was able to balance on either leg for a period of 10 minutes[123]; traversed 28 meters, with a walking stick, in the ‘Six Minute Walk Test’[124]; demonstrated reasonable upper limb functional capacity[125]; scored 6.4 on the Fatigue Severity Scale, consistent with a significant level of fatigue negatively impacting on capacity to perform activities of daily living[126]; was able to independently walk around her residence[127]; and at times, utilise a walking stick and at other times keep in close contact to a wall or furniture. Mr Byrnes reported that the Applicant demonstrated capacity to access all areas inside her residence and backyard.
[121] Exhibit 1, Hearing Bundle, TB8.
[122] Exhibit 1, Hearing Bundle, TB8.
[123] Exhibit 1, Hearing Bundle, TB8.
[124] Exhibit 1, Hearing Bundle, TB8.
[125] Exhibit 1, Hearing Bundle, TB8.
[126] Exhibit 1, Hearing Bundle, TB8.
[127] Exhibit 1, Hearing Bundle, TB8.
Mr Byrnes considered that the Applicant experienced significant levels of fatigue which resulted in reduced productivity with work, domestic and leisure tasks. His report states that the Applicant reported that ‘on average two times monthly, for periods lasting from a few hours to a few days, [the Applicant] struggles to get out of bed and requires support from her husband for a drink of water or moving around her residence’. Mr Byrnes considered that the Applicant was able to mobilise fully ‘most of the time’.
In cross-examination, Mr Byrnes agreed that the Applicant was using a walking stick, shower chair and a stool in the kitchen for assistance. Mr Byrnes said that while it was over 18 months previously, he recalled the Applicant using her walking stick or standing close to a surface for support.[128]
[128] 12 February 2025.
Mr Byrnes reported that the Applicant indicated that she had not been prescribed aids, equipment or home modifications but that the Applicant had a reasonable need for the following aids and equipment: reacher, shower chair, walking stick, over-toilet and lift chair. Mr Byrnes considered that the Applicant may require a mobility scooter in the future, depending on symptom progression and recommended that the Applicant have rails in the shower, but it would be preferable only that a hobless shower recess be installed.[129]
[129] Exhibit 1, Hearing Bundle, TB8.
In her report, Ms Roser described the Applicant reporting days where she would require physical assistance from her husband to walk to the toilet, only being able to walk to the local gallery on her good days, being unable to walk up the stairs and taking frequent sitting breaks. The Applicant reported no longer being able to walk to local restaurants, to her doctor, and not being able to walk her dogs. Ms Roser stated that the Applicant advised that she was able to drive independently and catch trains locally.[130] The Applicant reported that she was limited to 2-3 shops per outing.[131]
[130] Exhibit 1, Hearing Bundle, p 339-340.
[131] Exhibit 1, Hearing Bundle, p 340.
During the hearing, Ms Roser said that what the Applicant is physically capable of will ‘depend on her energy levels will vary on what she can do on any given day’. Ms Roser said that the Applicant ‘can do tasks but doing them comes at a cost’.[132]
[132] 12 February 2025.
The Respondent submits that while there is some reduction in the Applicant’s functional capacity to undertake in the activity of mobility, it does not amount to a substantially reduced functional capacity.[133] The Respondent submits that prior to Autumn 2024, while the Applicant may complete mobility tasks slowly and use breaks and rest periods, she remained capable of engaging in ordinary activities of daily living, including leaving her home, getting out of bed, moving in the community and using her limbs.[134] The Respondent submits that from Autum 2024, the Applicant suffered a deterioration in her mobility because her energy levels decreased. The Respondent submits that the Tribunal could not be satisfied that the deterioration represents her baseline, stabilised or permanent level of functional capacity for mobility.[135]
[133] Respondent’s Statement of Facts, Issues and Contentions at [75].
[134] Respondent’s closing submissions, [95].
[135] Respondent’s closing submissions, [96].
Conclusion with regard to mobility
I accept that the Applicant experienced a deterioration in her health during 2024 and during that time she experienced a reduced capacity to mobilise, and she borrowed a wheelchair from a friend. However, there is no evidence of a functional clinical evaluation of the Applicant either during or after 2024, and there is no evidence before the Tribunal of the Applicant having been prescribed any disability specific supports by her treating practitioner. Based on the evidence described in paragraphs ‎117-‎125, I make the following findings.
(a)The Applicant’s impairment results in a reduced functional capacity to undertake tasks comprising the activity of mobility at times.
(b)The Applicant mobilises with and without a walking stick.
(c)At the time of Mr Byrnes assessment, the Applicant could mobilise around her home and community independently most of the time.
(d)At the time of Ms Roser’s report, the Applicant walked to the local gallery on her good days, was independent in driving in the community and using local trains, would visit 2-3 shops per outing.
(e)The Applicant can independently mobilise to the bathroom, bedroom and outside to her backyard.
(f)The Applicant attends her general practitioner and church.
I am not satisfied on the evidence described in paragraphs ‎117-‎125, and my findings above, that the effect or outcome of the Applicant’s impairment on her performance of the activity of mobility meets r 5.8(a), (b) or (c) of the Access Rules for the purposes of deeming the Applicant to have a substantially reduced functional capacity to undertake the activity of mobility.
I am not satisfied, based on the evidence described in paragraphs ‎117-‎125 and my findings above, that the Applicant’s impairment results in a substantially reduced functional capacity to undertake tasks that comprise the activity of mobility.
Self-care
The description of ‘self-care’ in the Access Guidelines assists in identifying the tasks that comprise the activity of self-care.
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.[136]
[136] Access Guidelines.
The Applicant said that she is reduced to activities of ‘basic survival and basic dignity’.
The Applicant said that she can independently mobilise to go to the toilet, and to bathe and shower. The Applicant submitted that she relies on a shower chair to wash herself, and regularly struggles to wash her hair due to the fatiguing effects involved in raising her arms above her head. In cross-examination, Mr Li asked the Applicant if she had trialled a hair-dryer stand. The Applicant said that she had not considered a hair dryer stand but said that she could not see that it would be useful. The Applicant said that most of the time she comes up with solutions such as sitting down to dry her hair, using a shower seat or showering directly before bedtime.
The Applicant submitted that she relies on her husband to make her meals and that she has to budget her meagre energy very carefully in order to feed their dog and birds and herself without causing a total depletion of her energy.[137] In cross-examination, the Applicant said that her husband usually makes breakfast and does the grocery shopping. The Applicant said that she makes meals using pre-packaged salads and cooked chicken or prepares batch meals that can be put in the freezer. The Applicant said that she sits on a stool in the kitchen.
[137] Applicant’s Statement of Facts, Issues and Contentions, [63].
The Applicant said that she does not have a dishwasher, but that if she had one, she could load and unload a dishwasher some days, but not every day. The Applicant said that during the two-week separation period from her husband she could wash a bowl or a mug, but that she was unable to keep the kitchen clean and she was unable to cook.
The Applicant submitted that she relies on her husband or his NDIS funded supports for house cleaning and laundry.[138] In cross-examination, Mr Li asked the Applicant if a washing machine stand would assist with orthostatic intolerance, in that if she were to load and unload without having to bend down, would she have better ability to do laundry. The Applicant said that she had not investigated nor trialled a washing machine stand but said that loading and unloading is still a task that requires energy, and if she was doing the washing that would mean she was expending energy and so would not be able to spend energy on a different task.
[138] Applicant’s Statement of Facts, Issues and Contentions, [64].
The Applicant said that she is unable to hang washing on the clothesline. Mr Li asked the Applicant if she had trialled a waist-height airing rack. The Applicant said bedsheets and towels cannot be hung on a rack, and that any task that requires her to bend down and stand up triggers fatigue. The Applicant said that when she folds a basket load of washing, she is sitting on a bed with her legs crossed and supported.
Mr Li put the proposition to the Applicant that she had not explored simple aids that could assist her in her daily life. The Applicant said that she believed that she had explored it to the level of her capacity and ability, and it was unfair to say that she had not.
Mr Byrnes reported that the Applicant had a reduced capacity to perform self-care because of pain, weakness and fatigue. Mr Byrnes reported that the Applicant: was independent with self-care save for assistance from her husband such as bed and toilet transfers twice monthly; was able to manage cooking tasks but would often sit on a stool in the kitchen; was able to perform light cleaning duties such as wiping a table; was able to utilise a washing machine, clothes dryer, fold and put clothes away; struggled to put clothes on the clothesline; was usually independent with toileting, was unable to perform more physically demanding cleaning such as scrubbing floors or outside such as gutter cleaning.[139]
[139] Exhibit 1, Hearing Bundle, TB8.
Mr Byrnes reported that depending on the level of fatigue, activities of self-care may be performed more slowly.
Mr Byrnes reported that the Applicant indicated that she had not been prescribed aids, equipment or home modifications and the Applicant had a reasonable need for the following aids and equipment: reacher, shower chair, walking stick, over-toilet and lift chair. Mr Byrnes recommended that the Applicant have rails in the shower, but it would be preferable only that a hobless shower recess be installed.[140]
[140] Exhibit 1, Hearing Bundle, TB8.
Mr Byrnes was of the view that the Applicant ‘will continue to require support with personal care, domestic tasks and work tasks’ and ‘ongoing support for domestic tasks’[141] In cross-examination Mr Byrnes said that he was vaguely aware of the Out of Hospital Care – Safe and Supported at Home (SASH) packages. He indicated that if the Applicant required ongoing support, then the SASH packages might not meet the Applicant’s particular needs.
[141] Exhibit 1, Hearing Bundle p 400-407.
Ms Roser’s evidence was that the Applicant was generally able to engage in self-care, depending on her levels of fatigue. Ms Roser said that in 2024 the Applicant reported not being able to move her head, avoiding using make-up and using dry shampoo, and being reliant on her husband. In her report, Ms Roser noted that the Applicant ‘does not currently have any assistive technology other than a walking stick’. Ms Roser recommended exploring equipment with an occupational therapist which may include items such as ‘seated shower aids, mobility aids, food preparation tools etc’.[142]
[142] Exhibit 1, Hearing Bundle, p 345.
In April 2024, the Applicant stated that one of the benefits of access to the NDIS would be having access to an occupational therapist, who could help improve her pacing and modify tasks so they are more achievable.[143] In July 2024, Dr Waris made a Medicare-funded referral for five sessions with Ms Roser for the Applicant.[144] At the time of the hearing in February 2025, the Applicant’s evidence was that she had used two of five sessions.
[143] Exhibit 1, Hearing Bundle, p 354.
[144] Exhibit 5.
In cross-examination, Dr Gorman said that he understood that the Applicant would be entitled to five allied health appointments and ten psychology appointments under a Chronic Disease Plan. Dr Gorman considered five allied health appointments would be sufficient for the Applicant because the treatment would comprise self-management guidance, such as setting a program, for the Applicant.
The Respondent submits that the Applicant’s self-care is impacted, and that there is some reduction in functional capacity, but that the Applicant’s capacity for self-care is likely higher than represented by her in the Tribunal and that even evidence of what the Applicant can currently achieve, does not amount to a substantially reduced functional capacity in the domain of self-care.[145]
[145] Respondent’s closing submission, [116].
Conclusion with regard to self-care
Based on the evidence described in paragraphs ‎132-‎144, I make the following findings.
(a)The Applicant’s impairment results in a reduced functional capacity to undertake tasks comprising the activity of self-care at times.
(b)The Applicant may perform tasks comprising the activity of self-care slowly.
(a)The Applicant can independently go to the toilet, bathe, and shower.
(b)The Applicant makes meals using pre-packaged salads and cooked chicken and prepares batch meals that can be put in the freezer.
(c)The Applicant is unable to perform physically demanding cleaning such as scrubbing floors or outside such as gutter cleaning.
(d)The Applicant has not utilised all Medicare-funded occupational therapy sessions available to her to explore products or aids that might assist her with tasks comprising the activity of self-care.
Based on the evidence described in paragraphs ‎132-‎144 and my findings above, I do not consider that the effect or outcome of the Applicant’s impairment on the performance of the activity of self-care satisfies r 5.8(a), (b) or (c) of the Access Rules for the purposes of deeming the Applicant to have a substantially reduced functional capacity to undertake the activity of self-care.
Based on the evidence described in paragraphs ‎132-‎144 and my findings above, I cannot be satisfied that the Applicant’s impairment results in a substantially reduced functional capacity to undertake the tasks that comprise the activity of self-care.
Self-management
The description of self-management in the Access Guidelines assists in identifying the tasks that comprise the activity of self-management.
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.
The Applicant submits that when experiencing ‘bad days’ she is unable to attend to ‘time-sensitive tasks such as paying bills online or calling the butcher’.
The Applicant said that she is the sole person responsible for managing the family finances. She said that she reminds her husband what they might need at the shop and will note things on a list. The Applicant said that she takes the dogs to the vet when they get sick and manages their medication regime. The Applicant said that her husband’s NDIS plan was recently reviewed and his access to supports has increased because he cannot do tasks for which he was previously relying on the Applicant.
The Applicant’s husband said that the Applicant will delegate specific tasks to him, for example payment of car registration.
The Applicant said that she manages her medical appointments but has needed her husband to drive her to the general practitioner appointments on the last two occasions. The Applicant said that her psychologist operates via Zoom and so can attend appointments from home. The Applicant said that her general practitioner does not offer telehealth appointments.
Mr Byrnes reported that in 2023 the Applicant demonstrated capacity to organise her day, make decisions, problem solve and manage her finances[146]; demonstrated capacity to learn new skills, remember and utilise information[147]; demonstrated cognitive capacity to answer questions, complete paperwork, answer the telephone and make appointments.[148] ; and demonstrated capacity to make personal decisions independently; is not prevented from managing her affairs.
[146] Exhibit 1, Hearing Bundle, TB8.
[147] Exhibit 1, Hearing Bundle, TB8.
[148] Exhibit 1, Hearing Bundle, TB8.
Conclusion with regard to self-management
Based on the evidence described at paragraphs ‎150-‎154, I do not consider that the effect or outcome of the Applicant’s impairment on the performance of the activity of self-management satisfies r 5.8(a), (b) or (c) of the Access Rules for the purposes of deeming the Applicant to have a substantially reduced functional capacity to undertake the activity of self-management.
Based on the evidence described at paragraphs ‎150-‎154, I am not satisfied the Applicant’s impairment results in a substantially reduced functional capacity to undertake tasks that comprise the activity of self-management.
IS THE APPLICANT LIKELY TO REQUIRE SUPPORT UNDER THE NDIS FOR HER LIFETIME?
The Access Guidelines relevantly state:
You must be likely to need support under the NDIS for your whole life. NDIS supports are investments that help you build or maintain your functional capacity and independence, and help you work, study or take part in social life. Even if your needs go up and down over time, or happen episodically, we may still consider it’s likely you’ll need lifetime support under the NDIS. We consider your overall situation to answer this question. When we decide if you’ll likely need support under the NDIS for your whole life, we consider:
• your life circumstances
• the nature of your long-term support needs
• whether your needs could be best met by the NDIS, or by other government and community services.
For example, you may have an impairment which is caused by a chronic health condition. Many chronic health conditions are most effectively managed or remedied through medical management through the health system. If this is the case, we may decide that you don’t have a lifetime need for support under the NDIS.

The Court in Foster held that the focus of s 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 another system. The answer to the question depends on whether the support is required in respect of substantially reduced functional capacity to participate in an ‘activity’, as assessed in accordance with s 24(1)(c).[149] The ‘likely’ support referred to in s 24(1)(e) can only be referrable to the result of the impairment subject of the application to gain access to the NDIS.
[149] Foster at [93].
I cannot be satisfied that the Applicant is likely to require support under the NDIS for her lifetime because I find that the Applicant does not satisfy s 24(1)(c).
DOES THE APPLICANT MEET THE EARLY INTERVENTION REQUIREMENTS?
In considering whether the Applicant meets the early intervention requirements set out in s 25 of the NDIS Act and Part 6 of the Access Rules, I have regard to paragraph 6.9 of the Access Rules which provides that in deciding whether provision of early supports is likely to benefit the person, it is expected that consideration be given to:
(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, including in some cases expert opinion.
I also have regard to the Access Guidelines.
The reasons I am unable to be satisfied that the Applicant meets the requirements of s 25(1)(b) and s 25(1)(c) are as follows.
(a)Dr Gorman did not believe that there are any early intervention supports that would benefit the Applicant. Treatment recommended by Dr Gorman was treatment and management for exacerbations from psychologists and exercise physiologist or physiotherapist.[150]
[150] Exhibit 1, Hearing Bundle, p 390.
(b)Ms Roser’s recommendations for the Applicant included the following.
(i)Individual supports to assist with laundry care, meal planning and preparation, scheduling of appointments, and transport for when the Applicant is too fatigued to drive to appointments or other events.
(ii)Occupational therapy intervention to include assessment and recommendation for complex home modifications, education regarding pacing and energy conservation strategies with a view to maintaining and increasing functional tolerances, identifying priorities and goals to develop activity schedules and promote activity engagement, review and recommend assistive technology to decrease impacts of PEM.
·Ms Roser noted that the Applicant would like to explore the potential for complex home modifications, including kitchen and bathroom, to improve her independent and ability to use spaces while managing fatigue.
(iii)Assistive technology equipment to reduce fatigue and pain.
(iv)Psychology in excess of what can be provided through a primary care plan.
(v)Support coordination.
Save for the occupational therapy for education concerning pacing and energy conservation, and exploration of assistive technologies, I am not satisfied that the other supports recommended by Ms Roser are likely to benefit the Applicant in the ways set out in s 25(1)(b) or s 25(1)(c).
I am unable to be satisfied that the provision of early intervention supports is likely to benefit the Applicant by reducing her future needs for supports in relation to disability, as required by s 25(1)(b).
Save for the occupational therapy for education concerning pacing and energy conservation, and exploration of assistive technologies, I am unable to be satisfied that that provision of early intervention supports for the Applicant is likely to benefit her by the ways set out in s 25(1)(c).
I consider that s 25(3) (as it was prior to 3 October 2024) applies to the Applicant in that any early intervention support, such occupational therapy, is more appropriately funded or provided to the Applicant through Medicare, based on the evidence discussed at paragraph ‎144-‎145 above. Relevantly, paragraph 6.1 of the Access Rules reflects s 25(3) (as it was prior to 3 October 2024).
CONCLUSION
I accept that the Applicant’s impairment affects her globally, resulting in reduced functional capacity.
The task for the Tribunal is make a functional, practical assessment of what the Applicant can and cannot do for the purposes of establishing whether the Applicant’s impairment results in a substantially reduced functional capacity to undertake one or more of the activities set out in s 24(1)(c) of the NDIS Act. Based on the evidence that is before the Tribunal, I am not satisfied that the Applicant’s impairment results in a substantially reduced functional capacity to undertake any one of those activities.
I am unable to be satisfied that the Applicant is likely to require support under the NDIS for her lifetime.
I find that the Applicant does not meet the early intervention requirements.
It remains open to the Applicant to apply for access to become a participant in the NDIS in the future.
The Tribunal affirms the decision under review.