Dasari and National Disability Insurance Agency - [2024] AATA 3317

Dasari and National Disability Insurance Agency [2024] AATA 3317 (18 September 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2023/0201
Re:Maria Dasari
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member N Purcell
Date:18 September 2024
Place:Sydney

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
............[SGD]...................................
Member N Purcell
CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access – osteoarthritis - complex regional pain syndrome (CRPS) - bilateral knee replacement – mental health – credibility issues – whether the Applicant meets NDIS access criteria – permanency – whether substantially reduced functional capacity – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
Mulligan v National Disability Insurance Agency [2015] FCA 544
Mulligan and National Disability Insurance Agency [2015] AATA 974
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Madelaine and National Disability Insurance Agency [2020] AATA 4025
National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415
Timofticiuc and National Disability Insurance Agency [2021] AATA 3015
NVRY and National Disability Insurance Agency [2023] AATA 1019
SECONDARY MATERIALS
Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024
REASONS FOR DECISION
Member N Purcell
18 September 2024
INTRODUCTION
The issue before the Tribunal is whether the Applicant meets the access criteria to be a participant of the National Disability Insurance Scheme (‘the NDIS’ or ‘the scheme’), in accordance with section 21 of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’ or ‘the Act’).
The Applicant is a 55-year-old woman, who seeks to become a participant of the NDIS based on impairments arising from osteoarthritis, complex regional pain syndrome (CRPS) secondary to bilateral knee replacement, anxiety, and depression.
On 15 November 2022, a delegate on behalf of the National Disability Insurance Agency decided that although the Applicant satisfied the age and residency access criteria, she did not meet the disability requirements under section 24 or the early intervention requirements under section 25 of the Act.
On 5 December 2022, the Applicant sought internal review of the original decision, pursuant to section 100 of the NDIS Act. On 20 December 2022, the Respondent affirmed the original decision. The Applicant then sought review of the internal review decision by this Tribunal pursuant to section 103 of the NDIS Act on 9 January 2023.
The Tribunal held a hearing by video on 22 and 23 August 2024. The Applicant was unrepresented in the proceedings. The Agency was represented by Mr Marco Nesbeth of counsel.
In arriving at its decision, the Tribunal has considered the various documents contained in the joint hearing tender bundle, which was accepted into evidence. This included a set of documents filed by the Respondent, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) (‘T-Documents’),[1] various documents filed by the Applicant, and an independent functional capacity assessment report dated 8 November 2023 by Mr Elliot Mate, occupational therapist (OT).
[1] Joint Hearing Bundle (JHB).
The Applicant, her general practitioner (GP) Dr Bhargavi Gade, her psychotherapist Mr Johny Mattom and OT, Mr Mate, gave oral evidence at the hearing.
The Respondent’s statement of facts, issues and contentions, a screen shot of the Applicant’s professional profile on the Change Life Australia website and 3 photos taken by the Applicant of the gap between the train and the Flemington Bridge train station, were also admitted into evidence.[2]
LEGISLATIVE FRAMEWORK
[2] Marked E1, E2 and E3 respectively.
The access criteria
To become a participant of the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
There is no dispute that the Applicant satisfies the age and the residence requirements. What the Tribunal must decide is whether the Applicant satisfies the access criteria in section 24 (‘the disability requirements’) or section 25 (‘the early intervention requirements’).
Section 24 of the Act states:
(1) A person meets the disability requirementsif:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self care;
(vi) self management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
If the Applicant does not meet the disability requirements, the Tribunal must consider whether she meets the early intervention requirements set out in section 25 of the Act which relevantly states:
(1) A person meets the early intervention requirementsif:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has a 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.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that the NDIS rules may prescribe circumstances and criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules in the Applicant’s case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), which form part of the legislative framework.
Access Rules
In respect of subsection 24(1)(b) of the Act, concerning permanency of an impairment, the Access Rules state:
5.4 An 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.
…
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
In relation to substantially reduced functional capacity under subsection 24(1)(c), the Access Rules provide:
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal, unless there is good reason not to do so.[3] The relevant Operational Guideline at time of decision is Our Guidelines – Becoming a participant – Applying to the NDIS (1 February 2024)(‘the Access Guideline’).[4]
[3] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[4] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 February 2024).
The Tribunal also notes that in Mulligan,[5] Mortimer J held that the legislation pertaining to the access criteria requires “a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted”.[6] The Full Court of the Federal Court of Australia in Foster also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[7]
[5] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’) at [55].
[6] Mulligan at [55].
[7] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’) at [44].
ISSUES IN DISPUTE
In this case, it was not disputed by the Respondent prior to hearing that the Applicant has a disability attributable to a physical impairment arising from osteoarthritis and Complex Regional Pain Syndrome (CRPS) secondary to a bilateral knee replacement. The physical impairments were characterised as pain, loss of strength and reduced movement / flexibility. However, the Respondent did not agree that the Applicant has impairment(s) attributable to a psychosocial disability.
For reasons which are discussed below, the hearing predominantly focused on the permanency of the Applicant’s physical impairments and whether she has substantially reduced functional capacity in one of the relevant domains. However, the Tribunal was also required to determine if the Applicant has one or more impairments attributable to a psychosocial disability, and if so, whether such impairment(s) could be said to be permanent and meet the threshold of substantially reduced functional capacity in a relevant domain.
EVIDENCE
In her access request form dated 16 June 2022, the Applicant indicated that her main disability was arthritis.[8] An accompanying form from her GP, Dr Gade, dated 24 July 2022, explained the Applicant had experienced severe pain over the past 2 to 3 years, leading to a total knee replacement of her right knee on 26 January 2022 and a total knee replacement of her left knee on 15 February 2022.[9]
[8] Access request form, Applicant, dated 16 June 2022, T3 of JHB, p42.
[9] Access request form, Dr Gade - GP, dated 24 July 2022, T5 of JHB, p58.
During her oral evidence at hearing, the Applicant confirmed that she had travelled to India for the surgery due to delays with her scheduled surgery in Melbourne because of Covid-19 lockdowns. She was in hospital for 6 weeks and then remained with family in India for the initial post-surgery recovery period until approximately May 2022. The Applicant then returned to Melbourne where she stayed with her nephew until the end of 2022, as she was unable to climb the stairs to her first-floor apartment and had other difficulties mobilising. She began using a four-point walking stick at this time.
Dr Gade noted in the July 2022 access request form that the Applicant’s recovery will be slow and that she was “in progress”.[10] She opined the Applicant required a chair lift for the stairs, daily personal care, grooming, cooking and cleaning in the home.[11] She also required assistance to go shopping, to attend appointments and church,[12] and visit family or friends.[13] In her letter dated 28 July 2022, Dr Gade said the Applicant “has been recovering slowly with her hip and knee pains” and her “pain gets worse with five to ten minutes of standing or walking”.[14]
[10] Access request form, Dr Gade - GP, dated 24 July 2022, T5 of JHB, p58.
[11] Access request form, Dr Gade - GP, dated 24 July 2022, T5 of JHB, p63.
[12] Supporting Evidence form, Dr Gade – GP, T16 of JHB, p120.
[13] Supporting Evidence form, Dr Gade – GP, T16 of JHB, p121.
[14] Letter of Dr Gade dated 28 July 2022, T6 of JHB, p72.
In her oral evidence at hearing, Dr Gade informed the Tribunal that recovery from bilateral knee surgery can take 6 to 8 months, or longer for some patients. She noted the Applicant did not have any chronic health conditions which might ordinarily interfere with recovery. She also indicated the Applicant’s initial recovery over 7 or 8 months was in accordance with expectations such as walking, albeit with a stick and being able to bear weight. Dr Gade said it was difficult to answer why the Applicant’s recovery had not continued as anticipated. She said the Applicant was having regular hydrotherapy sessions and was taking anti-inflammatory medication, meloxicam, primarily for her ankles. The Applicant was also prescribed anti-biotics and steroid medication to address inflammation.
Dr Gade explained the Applicant first complained of ankle pain in August 2023 when carrying heavy things, such as shopping bags, or going up or down stairs. An ultrasound was performed on 12 January 2024 after the Applicant tripped on some uneven ground and fell at the train station on 22 December 2023 (which also resulted in some wrist pain).[15] The ultrasound confirmed the Applicant had some swelling in her right tendons. Dr Gade encouraged the Applicant to keep moving at the time despite the complaints of hip and ankle pain because inflammation can take some time to resolve.
[15] Ultrasound report, A6 of JHB.
Dr Gade hypothesised the ankle pain could be connected to the Applicant’s slow gait, attempts to shift body weight from her knees and/or her osteoarthritis. She did not think it was related to the surgery given the period between the Applicant’s bilateral knee replacements and the onset of ankle pain. The Tribunal understands that the fall also exacerbated the Applicant’s ankle pain and prompted the ultrasound. Dr Gade clarified that the CRPS diagnosis was in relation to the Applicant’s knees and not her ankles. She also noted the ankle pain was still in the early stages of investigation and management and could not give a definitive explanation for its cause. Dr Gade confirmed that osteoarthritis can affect multiple joints. She planned to refer the Applicant to a chronic pain specialist and if that was unable to resolve the pain, to an orthopaedic surgeon.
In relation to ongoing knee pain, Dr Gade also confirmed that the Applicant had not been referred to an orthopaedic surgeon for an opinion since her return to Australia following surgery. In the context of her prolonged recovery period, Dr Gade agreed with Counsel that review by an orthopaedic surgeon was required, particularly to ensure no revision was necessary. Dr Gade indicated she would arrange a referral immediately.
Dr Gade has not prescribed Tramadol (or Panadeine Forte) for the Applicant since 2021, prior to surgery. She instructed the Applicant to take Panadol and Meloxicam, as needed.
Dr Gade confirmed that the forms and letter she had prepared in July 2022 were in the months immediately after surgery and during a period when the Applicant’s recovery was consistent with expectations.[16] She conceded in her oral evidence that she was unsure at the time whether the Applicant’s reported pain and difficulties with mobilising were temporary or permanent. It was Dr Gade’s understanding that the NDIS may be able to provide temporary assistance to the Applicant while she recovered, for example, by helping her get to work.
[16] Access request form, Dr Gade - GP, 24 July 2022, T5 of JHB and Letter of Dr Gade, 28 July 2022, T6 of JHB.
Dr Gade seemed to be under the impression that the Applicant was having regular sessions with a physiotherapist. The Applicant later confirmed that she had not seen her physiotherapist since sometime in early 2023 and that she had seen him for a total of 2 or 3 sessions since her surgery.
The Applicant gave evidence that she has a PhD in social work and is currently teaching at an education institute in Melbourne. She commenced this job about 7 or 8 months ago. Her commute involves a 5 – 10 minute drive to Bentleigh train station, where she parks in an adjacent car park. She then takes the train to Flemington Bridge station, followed by a 10 minute walk to the campus over a distance of about 500 meters. The commute takes 1.5 to 2 hours each way. She described struggling to get off the train due to a large gap between the train and the platform. As mentioned, the Applicant filed photos of the gap between the train and the platform. The Tribunal was unable to determine from the photos if the gap was greater than the usual gap between trains and platforms in Melbourne. The Applicant confirmed she had not spoken to Metro staff about the issue.
The Applicant was asked, on several occasions, whether she worked full time. It took a significant number of questions from Counsel and the Tribunal to clarify that the Applicant works from home 2 days per week and teaches on campus 3 days per week. In the Tribunal’s view, the Applicant appeared to omit important information or details unless pressed. This issue is discussed further below.
The Applicant indicated her employer would not allow her to work from home 5 days per week. Despite using a walking stick, she also explained that she is often required to stand on the train because people do not offer her a seat. Later in the hearing, she seemed to resile from this evidence, suggesting she leaves home at 7am, so that she can get a seat on the train. The Applicant sits at a table to teach, and her classes generally include about 20 students.

Counsel asked the Applicant whether she had ever worked for Change Life Australia. The Applicant paused, as though she had not anticipated such a question. She indicated that before her current job, she had done some “support coordination” on a casual basis “two years ago”. Later, when it became clear that the Respondent had seen her profile on the Change Life Australia website, she again resiled from her evidence that she had worked as a support coordinator two years ago for reasons which will become apparent below. The Applicant confirmed she was aware that her profile was still on the Change Life Australia website, and explained she had asked them to pull it down because she was no longer working there.
The Applicant obtained her PhD in Social Work prior to coming to Australia in 2005. She told the Tribunal she had completed some short courses and a Certificate IV in Workplace Training and Assessment during her time in Australia.
Significantly, it was only during her oral evidence on the first day of the hearing that the Applicant confirmed she had worked for her psychotherapist Mr Mattom; also due to give evidence later that day. As the Director of Change Life Australia, Mr Mattom had been the Applicant’s boss. He had also represented her at a case conference as part of these proceedings. When asked whether she still had contact with Mr Mattom, the Applicant replied, “yes I actually attend the counselling sessions with him as a counsellor”. She later confirmed she has not attended counselling sessions “for about a year” and was “thinking of going somewhere else”. The Applicant does not take any anti-depression or anti-anxiety medication.
Counsel asked if the Applicant worked with Mr Mattom in 2022. The Applicant said she attended counselling “but didn’t work”. When pressed further, she conceded that she had worked there as psychotherapist on a casual basis in 2022. Most recently, she had seen a client for 3 sessions approximately 2 or 3 months ago. She visited the client at their home in Noble Park on 2 occasions and once in the office at Change Life Australia, all located about a 45-minute drive away. She indicated that a friend had driven her to at least one of the appointments. When asked whether she would do further work with the company, she replied “I will not, I don’t have the capacity to work”.
Despite indicating at first instance that she had undertaken “support coordination” work for Change Life Australia, she later clarified that she had never worked as a support coordinator and was not involved in any NDIS services provided by the company. The Applicant worked as a disability support worker for a large NDIS service provider for approximately 10 years before being unable to continue in that role in 2021, due to her knee condition. At that time, she applied for the disability support pension “but did not follow it up”.
The Respondent filed a screen shot of the Applicant’s profile on the Change Life Australia website:
Dr. Maria Rani Dasari
Psychotherapist
Dr Maria Rani Dasari is an accredited mental health social worker. Rani has been working in the mental health field since 2001. Rani has experience supporting clients with multiple needs and challenges from diverse backgrounds. Rani uses a bio-psycho-social model for assessing clients in their emotional wellbeing. Rani has extensive experience in working with couples, international students from diverse cultural backgrounds, migrants, young teenagers, children, and the LGBTQIA+ communities. Rani is passionate and dedicated towards evidence-based practices in the recovery processes of clients to develop emotional resilience and build self-esteem.
Specialty: Depression, Anxiety, Post-Traumatic Stress Disorder (PTSD), Relationship Problems, Easting Disorders, Family and Child Welfare.
Qualifications: PhD in Social Work, Certificate in Clinical Hypnosis and Strategic Psychotherapy, Certificate in Ego-State Therap.
Areas of Expertise: Cognitive Behavioural Therapy (CBT), Acceptance and Commitment Therapy (ACT), Mindfulness, Solution Focused Therapy, and Psychoeducation.
The Applicant told the Tribunal she bought her first-floor apartment about 5.5 years ago and renovated her bathroom approximately 6 months ago, replacing the bathtub with a walk-in shower. Mr Mate’s report indicates it was completed prior to his assessment in late 2023.
She drives to church most Saturdays, which is a 10 minute drive away. She also drives 5 to 10 minutes to her hydrotherapy sessions two evenings per week. The Applicant indicated that she doesn’t drive outside her suburb because she is “not comfortable”. This is despite her previous evidence that she drove to Noble Park a couple of months ago, located approximately 45 minutes away.
The Applicant said she had not received any cleaning help from her friends for at least 6 months and claimed her sheets had not been changed in that time. She confirmed visitors have been to her apartment during that period to drop food, but she found it hard to ask them for help. This is in stark contrast to the arrangements she described to Mr Mate, of receiving “support approximately once every two weeks. Sometimes more frequently”, with “heavy domestic tasks”.[17] The Applicant explained that Wendy, her church friend, helps with groceries sometimes. On the last occasion, about 3 weeks ago, Wendy took the Applicant to the supermarket and then dropped her home and helped carry the groceries up the stairs. When questioned why she hadn’t asked Wendy to prepare a statement or give evidence, the Applicant replied she “didn’t remember”.
[17] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p9.
The Applicant indicated she had not seen osteopath Dr David Cork, in relation to pain management for some time. She had not seen a psychologist because she is “not able to manage myself to go at all”.
Mr Mattom, psychotherapist, was called by the Applicant to give oral evidence. He authored a ‘supporting evidence form’, dated 4 August 2022,[18] as part of the Applicant’s access request and 2 support letters, dated 8 August 2022,[19] and 7 December 2022.[20]
[18] Supporting evidence form, Mr Mattom – psychotherapist, 4 August 2022, T7 of JHB.
[19] Letter of support, Mr Mattom – psychotherapist, 8 August 2022, T8 of JHB.
[20] Second letter of support, Mr Mattom – psychotherapist, 7 December 2022, T15 of JHB.
Mr Mattom told the Tribunal he is the Director of Change Life Australia and is an accredited mental health social worker. He confirmed the Applicant had worked for him for almost 2 years in a casual capacity and last completed a job approximately 2 months ago. Mr Mattom first met the Applicant at a college in 2010 during a teaching course and represented the Applicant at a case conference as part of these proceedings.
Mr Mattom did not indicate in any of his supporting evidence that he knew the Applicant outside a therapeutic relationship, nor that she was in fact working for him in 2022. When asked whether he thought it was relevant information for the Tribunal to know, he was “not sure about it”.
Mr Mattom conceded in oral evidence that his recommendations for a chair lift, shower and toilet rails, and “highchair” for cooking in the kitchen were outside his area of professional expertise and that it was inappropriate for him to support the inclusion of those items because the Applicant was his friend.[21] The Applicant disputed the characterisation of Mr Mattom as her friend and said they did not have contact in the intervening years between meeting at the college and when she commenced working for his company on a casual basis approximately 2 years ago.
[21] Supporting Evidence form, Mr Mattom – psychotherapist, 4 August 2022, T7 of JHB, p81.
Mr Mattom explained he provided ten counselling sessions under a mental health plan that concluded on 8 July 2022, the day he wrote his first support letter. He has not provided any counselling to the Applicant since.
The Tribunal heard Mr Mattom and the Applicant are both accredited as psychotherapists through the Australian Association of Social Workers. The exact qualifications required to work as a psychotherapist remain somewhat unclear to the Tribunal.
Findings in relation to Mr Mattom’s evidence
The Tribunal is satisfied that Mr Mattom has known the Applicant since 2010 and that they had a working relationship for approximately 2 years, which ended a couple of months ago. The Tribunal finds that Mr Mattom should have disclosed the full nature of his relationship with the Applicant outside of therapeutic counselling when providing letters of support as part of these proceedings. By failing to do so, the Tribunal cannot be satisfied that his evidence is sufficiently objective to be considered expert evidence.
The Tribunal also accepts the Respondent’s submission that Mr Mattom expressed views outside of his area of expertise. The Tribunal does not give weight to Mr Mattom’s recommendations about assistive technology or other physical assistance because he is not suitability qualified to give opinions on those matters, and his observations about the Applicant were made 2 years ago.
Mr Mattom provided 10 sessions of counselling under a mental health plan which commenced in 2021 and concluded in July 2022, at the same time, the Applicant was working for his company on a casual basis. While the appropriateness of that arrangement including ethical considerations is ultimately a matter for the Australian Association of Social Workers, the Tribunal finds that it cannot rely on his previous evidence as providing an accurate account of the Applicant’s current mental health. The Tribunal disregards Mr Mattom’s written evidence contained in Tabs 7, 8 and 15 of the JHB.
Other evidence of allied health practitioners
The Tribunal notes that most of the Applicant’s supporting material, contained in the T-documents, was obtained in 2022, in the period immediately after her surgery and while she was living with her nephew. While that information provides useful background information and context to her current circumstances, clearly there have been significant changes since that time. I find the material has limited evidentiary value in terms of whether the Applicant’s impairments are permanent and how they currently impact her current functional capacity. Furthermore, the oral evidence of the Applicant and Dr Gade, which was tested at the hearing, rendered many of the assertions or conclusions stated in those reports or documents as outdated. However, for completeness, a brief overview of the evidence is provided below.
Mr Yasha Gurevich, physiotherapist, wrote a letter in support of the Applicant’s NDIS application on 8 July 2022. His letter repeats background information contained elsewhere in this decision and does not indicate how long Mr Gurevich treated the Applicant or the number of sessions attended. [22] The Applicant indicated in her oral evidence that she had seen him 2 or 3 times.
[22] Letter of Yasha Gurevich – physiotherapist, 8 July 2022, T4 of JHB, p54.
Ahalya Pavithram, registered occupational therapist, conducted a face-to-face assessment and prepared a report on 23 September 2022.[23] At the time of the assessment, the Applicant was working part-time as a teacher however no further details were provided.[24] The Tribunal was unable to determine from the report which tasks were directly observed or simulated during the assessment. A curriculum vitae was also not included at the end of the report, detailing Ms Pavithram’s qualifications and years of experience and her report was not prepared in accordance with the Tribunal’s guideline on ‘Persons Giving Expert and Opinion Evidence’.[25]
[23] Report of Ahalya Pavithran – OT, 23 September 2022, T9 of JHB, p88.
[24] Report of Ahalya Pavithran – OT, 23 September 2022, T9 of JHB, p89.
[25] Available at:
Ms Pavithram said the Applicant has ongoing difficulties with mobility in the community, due to chronic pain, and “depends on her friend to do grocery shopping due to inability to sustain her standing posture for more than five to eight minutes”.[26]
[The Applicant] faces immense level of challenge to get in and out of her bed due to reduced range of bilateral knee and hip flexion. She is unable to turn in her bed while lying down due to intense pain while doing internal and external rotation of hip and knee joint. [The Applicant puts increased pressure on her upper extremities to come up to standing from her bed which has caused pain in wrist joint and oedema in her hands.
[26] Report of Ahalya Pavithran – OT, 23 September 2022, T9 of JHB, p89.
In relation to self-care and self-management, Ms Pavitham’s report indicated that owing to pain in her wrist joints, the Applicant could not cut or prepare food, could not stand for sufficiently long to cook and clean and could not bend to load and unload the washing machine or carry the load of clothes to air them.[27] The report indicated that the Applicant was reliant on a friend with grocery shopping and cleaning. Ms Pavitham’s report did not state where the Applicant was living at the time. The Applicant told the Tribunal she was living with her nephew during this period.
[27] Report of Ahalya Pavithran – OT, 23 September 2022, T9 of JHB, p8
Dr Cork, osteopath, assessed the Applicant on 30 November 2022. He wrote:
[The Applicant] explained due to her knee pain she has lost her confidence in her body, she is socially isolated and she has suffers from significant depression and anxiety. She currently sees a psychotherapist for her mental health issues and sees a physiotherapist for her knee pain.
…
[The Applicant has extremely poor physical capacity, she struggles to walk and walks with minimal knee bend, she struggles to get out of a chair and requires her upper body to push her up to get out of any chair, she can barely do a step-ups without upper body support for a height of 10cm.
Her knee mobility is extremely poor, she cannot bend her knee past roughly 40 degrees of knee flexion and her lower body strength is extremely poor.[28]
[28] Letter of Dr Cork – Osteopath, 1 December 2022, T13 of JHB, p111-112.
Dr Cork noted the lack of improvement since the Applicant’s surgery 10 months prior. He made a provisional diagnosis of complex regional pain syndrome (CRPS).[29]
[29] Letter of Dr Cork – Osteopath, 1 December 2022, T13 of JHB, p112.
In his response to targeted questions from the Respondent at hearing, Dr Cork confirmed his diagnosis, explaining that “[the Applicant’s] symptoms are consistent with complex regional pain syndrome and there are no other plausible explanations of [the Applicant’s] symptoms.” He said CRPS “is a chronic pain condition that can occur after surgery or after a major injury. The cause of CRPS is poorly understood…Diagnosis is based on a person’s medical history and their symptoms. Investigations are used to rule out other causes of the pain”.[30] As discussed below, Dr Cork, osteopath (who the Tribunal understands is not a medical doctor) made this diagnosis without the Applicant being reviewed by an orthopaedic surgeon since her return to Australia.
[30] Response to targeted questions, Dr Cork – Osteopath, A3 of JHB, p228 and 230.
Applicant’s evidence regarding functional capacity
Although some of the material before the Tribunal was outdated, there was other more recent evidence. The Tribunal paid particular attention to evidence filed by the Applicant in the past year because those documents were prepared in anticipation of a hearing and were an opportunity to provide updated information about her current functional capacity.
On the 17 August 2023, the Applicant filed a response to lived experience questions (“first response”),[31] indicating she can’t travel on public transport alone because she doesn’t feel comfortable and has safety concerns.[32] In relation to the frequency for leaving her home, she states:
Early morning going for hydro to relive my knee stiffness and hip pain. Going to church on every Saturdays. Weekly shopping for groceries, weekly out for drying clothes. Putting rubbish out downstairs and weekly to put rubbish bin on the curb. Short walk around the block.[33]
[31] Applicant’s first response,17 August 2023, A1 of JHB.
[32] Applicant’s first response, 17 August 2023, A1 of JHB, p221.
[33] Applicant’s first response, 17 August 2023, A1 of JHB, p222.
The Applicant also says she is “[s]truggling to do cleaning, but dong (sic) by myself cook by myself but struggling to stand and cut the vegetables and do the dishes”[34] and needs “support for dressing, putting the shoes and socks, struggles to shower sometimes”.[35]
[34] Applicant’s first response, 17 August 2023, A1 of JHB, p222.
[35] Applicant’s first response, 17 August 2023, A1 of JHB, p223.
In relation to questions regarding her previous and current employment, the Applicant provided the following information:[36]
27. Are you presently undertaking any employment (paid or voluntary) or study? If yes, please describe.
Yes – part time
28. How many days or hours per week did the Applicant perform the role of a disability support worker?
Not working now
29.How many days or hours per week is the Applicant performing the part-time role as a teacher?
Not working as a teacher
[36] Applicant’s first response, 17 August 2023, A1 of JHB, p223.
On the 19 February 2024, the Applicant provided a statement asserting:[37]
In my unit I have a very small balcony to dry my clothes and hardly I can put two towels in that limited area. I can’t do my washing and drying daily basis and on top of that I am not able to carry the wet clothes to the ground to use the clothesline.
I can’t bend and do vacuum, clean my house and struggling a lot to keep the place clean. Every day I need to empty the rubbish bin from kitchen and not able to maintain sanitation and cleaning especially toilet and bathroom. I need transport to support my daily life to have quality life by doing shopping and groceries and social life. Recent fall is evidence of my difficulty in moving out in the community.
[37] Applicant’s statement, 19 February 2024, A8 of JHB, p247.
The Applicant did not mention she had commenced a new full-time job and was commuting a significant distance to work 3 days per week and passing grocery shops on the way to and from work.
On the 5 June 2024, shortly before the hearing, the Applicant filed a second response to lived experience questions (“second response”).[38] She indicated she could not travel on public transport alone and was “hardly going out to see anyone due to my pain and anxiety”.[39] On the question of driving she wrote:[40]
Yes, but really scared to drive in case of unexpected braking affect my artificial knee. I can hardly drive up to 10 mts and after that I feel stiffness and pain in my both knees. Getting in and out of the car is the biggest struggle for me. I can’t go to GP and shopping place due to the parking availability close by the place and it is crowded and busy most of the days including weekend. Constant fear and anxiety of accident affects my driving ability.
[38] Applicant’s second response, 5 June 2024, A2 of JHB, p224.
[39] Applicant’s second response, 5 June 2024, A2 of JHB, p226.
[40] Applicant’s second response, 5 June 2024, A2 of JHB, p224.
This statement was filed about the same time that she was driving about 45 minutes to see clients for psychotherapy sessions.
At the hearing, the Applicant initially told the Tribunal that she always depends on other people and “can’t keep doing it”. Towards the end of the hearing, as mentioned above, she claimed she hadn’t received cleaning help in 6 months and that her sheets had not been changed in that time.
The Applicant described difficulties doing her laundry, being unable to do grocery shopping and struggling to go to sleep due to pain. She told the Tribunal of pain, swelling and inflammation in her ankles for the past 7 or 8 months. She also complained of pain in her right wrist which was exacerbated by her fall in December 2023. She indicated reduced flexibility in her knees, particularly the left knee and feeling unbalanced on her feet. The Applicant said she finds it difficult to cut things due to pain in her wrist.

The Applicant indicated she couldn’t carry her sheets down the stairs to hang them on the clothesline. When asked whether she could carry one sheet at a time, she responded that she couldn’t, because “the stairs are so narrow, when I’m getting down the stairs my mobility is not great.”
She recently completed a script of antibiotics and steroids for inflammation and takes Panadol Osteo each night before bed. Occasionally she takes Panadol during the day if the pain is particularly bad. She hasn’t seen her osteopath, Dr Cork, for a pain management session in “some time” but does exercises at home. When asked what sort of exercises, she replied, “ankle strengthening” and “knee bending”.
At the hearing, the Applicant indicated she can’t carry her groceries up the stairs to her unit, doesn’t buy her own groceries and relies on friends to bring her groceries. She stated, “I don’t go to the shops and carry anything upstairs”. When queried about buying smaller items, the Applicant explained she doesn’t go to the shops because she is scared of “people running and rushing”, doesn’t like crowded places, and “can’t do it” because the area she lives in is “very busy”. The Tribunal inquired why she could commute on a crowded train during peak hour but was unable to attend the supermarket to buy her groceries. The Applicant seemed to suggest that when she travels on the train, she carries a backpack with her computer, but nothing in her hands, whereas at the supermarket the trolley can move from one side to the other creating an imbalance. The Tribunal finds this an unconvincing explanation.
Later in the hearing, the Applicant conceded that she passes shops on the way to and from work, does buy smaller grocery items and puts them in her backpack. At this point she reiterated that the real issue was carrying the groceries up the stairs. The Applicant doesn’t use online grocery shopping because “people don’t understand what I really need” and she prefers to choose her own vegetables.
The Applicant told the Tribunal she relies on friends to take out her garbage and put the bins out. “Whenever anyone visits, they take the bins out for me”. When questioned further, she conceded that she does take smaller bags of rubbish down the stairs, for example, when she leaves for work.
The Applicant said she could not scrub the shower tiles.
With respect to her functional capacity, the Applicant’s oral evidence confirmed the tasks of daily living she can do:
(a)Walk 500 meters with her 4-point walking stick.
(b)Walk 500 meters unassisted if the ground is flat.
(c)Walks up and down stairs slowly using her four-point walking stick and handrail for support.
(d)Drives 5 to 10 minutes to and from hydrotherapy 2 evenings per week.
(e)Drives 5 to 10 minutes to and from the train station 3 days per week.
(f)Drives up to 45 minutes to visit a client and conduct a counselling session before driving home (approximately 2 months ago)
(g)Commutes on a train for 1.5 to 2 hours each way 3 days per week (and required to stand for significant periods if she can’t get a seat)
(h)Walks 10 minutes to and from the Flemington Bridge train station to campus.
(i)Carries a light bag of rubbish downstairs to the apartment bins.
(j)Carries small grocery items and a computer up and down stairs using her backpack.
(k)Performs all essential transfers, albeit with pain and using her stick or the arms of a chair for support/to push off.
(l)Showers daily in the evening, without a shower chair or rail.
(m)Performs all grooming and dressing tasks, though struggles to put on socks due to difficulty bending her left knee and pain.
(n)Reaches her ankles to do up the zips on her shoes.
(o)Prepares lunch / sandwich the night before work. She occasionally buys her lunch at work.
(p)Works 7.5 hours each day and teaches classes of 20 students in person.
(q)Cooks simple meals, such as boiled vegetables and eggs, pan fried fish, roasted vegetables and lentils. She cooks larger quantities and will freeze batches of lentils. She gets take-away about once per week.
(r)Washes her clothes in the washing machine and dries them on a clothing rack on her balcony, or in the spare bedroom.
(s)Performs house cleaning in the form of dusting, light sweeping, dishes, wiping kitchen benches and bathroom vanity/sink and toilet bowl.
(t)Attends church each Saturday with friends. Church friends drive her to places in the evening because she is worried “her muscles might catch” and “something might happen” when driving at night.
(u)Regularly talks to her friends on the phone.
The Tribunal finds that the Applicant can undertake all the tasks listed above.
Findings in relation to the Applicant’s evidence
The Tribunal acknowledges that the Applicant’s osteoarthritis interrupted her previous career as a disability support worker, necessitated a bilateral knee replacement at a relatively young age, and causes her to live with pain and physical limitations. The findings that follow do not seek to diminish her experience of pain or difficulties she faces performing daily tasks. However, the Tribunal observed the Applicant to be an unimpressive witness. At times she appeared evasive, to obfuscate her response to questions and to provide explanations that ranged from the unconvincing to highly improbable. Her initial response to questions often withheld critical information or were later found to be incorrect. Such omissions were observed to be self-serving.
The Tribunal finds that the Applicant was not forthcoming about her work as a psychotherapist, or her employment with Mr Mattom prior to the hearing. The Applicant chose to call Mr Mattom to give evidence in circumstances where she had not attended a counselling session with him for 2 years. At the beginning of the hearing, the Applicant indicated to the Tribunal that she was continuing to see him for counselling sessions. It appears she realised that would be an untenable position to maintain at hearing, so she changed her evidence to having seen him approximately one year ago (which also proved to be incorrect).
The Tribunal finds that by virtue of not being forthcoming and candid about her work when filing documents prior to hearing, the Applicant also failed to provide relevant information about her commute, including general access to and mobility within the community. This highly relevant information was only disclosed when directly questioned, oftentimes repeatedly, by Counsel or the Tribunal. I find these omissions were self-serving and were intended to bolster her application to gain access to the NDIS. Had the Respondent not conducted their own appropriate investigations, the Tribunal is not confident from its observations of the Applicant during the hearing, that she would have disclosed her recent employment with Change Life Australia (relevant to an assessment of her functional capacity) nor her connection to Mr Mattom beyond a therapeutic relationship (which is relevant to his objectively as an expert witness and her credibility as a witness).
The Tribunal put the Applicant on notice that it had concerns in relation to some of her evidence on the second day of the hearing and gave her the opportunity to respond to those concerns. She explained that she had forgotten to update her second written response to questions. The Tribunal does not accept that the Applicant’s explanation adequately explains her failure to provide up-to-date and accurate information to the Tribunal in her written materials or her inconsistent evidence during the hearing. Further, at the second telephone directions hearing (TDH) on 28 June 2024, the Tribunal specifically asked the Applicant whether she was currently working as a teacher, indicating her employment was a relevant issue for the hearing. At both TDHs, during discussion of the witnesses who would give oral evidence, the Applicant indicated Mr Mattom was providing current treatment in the form of counselling, which was untrue.[41]
[41] The first TDH was held on 10 May 2024.
The Tribunal finds the Applicant lacks credibility as a witness and therefore approaches much of her evidence with caution.
Mr Elliot Mate’s evidence (occupational therapist)
Mr Mate assessed the Applicant in her home on 11 October 2023, over a period of 1.5 to 2 hours, and prepared a report on 8 November 2023. He gave oral evidence at the hearing. Mr Mate confirmed that the conclusions and recommendations in his report were provided on the assumption that the Applicant’s physical impairments were permanent, and that she had reached maximum functional capacity following her surgery. Mr Mate told the Tribunal it was his understanding at the time of the assessment that reduced strength, mobility and balance were the Applicant’s primary impairments. He noted the Applicant displayed symptoms of pain, but he did not have concerns about her safety. Mr Mate concluded the Applicant was at low risk of falls and thought she showed appropriate care when undertaking tasks.[42] She did not report ankle pain during the assessment.
[42] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 277.
Mr Mate reported the Applicant’s symptoms as:
·Constant pain in both knees, averaging 7/10
·Pain in left leg from knee to hip
·Itching/burning sensation in left knee/hip
·Reduced sleep due to pain
·Reduced strength and range of motion
·Reduced balance
Mobility
Mr Mate found that the Applicant could walk for 15 to 20 minutes using her 4-point walking stick and could stand for 10 to 15 minutes.[43] She was observed to ascend/descend the approximately 16 steps to her first-floor apartment using a handrail for support and demonstrating symptoms of pain.[44] The Applicant reported difficulty accessing cupboards below waist level, due to associated bending. She stored items above waist height to make accessing cupboards and shelves easier, and used a long-handled reacher to pick up items on the floor.[45]
[43] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 252.
[44] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 257.
[45] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 264.
Mr Mate observed the Applicant to complete chair, bed, toilet, shower, and car transfers without the assistance of another person. She was observed to have difficulty with transfers, for example, using the table to support chair transfers, vanity to support toilet transfers and her bedside drawers for support during bed transfers. He indicated the Applicant used a shower stool, but suggested a shower chair with arms would provide a more stable surface to push on to support transfers.[46] He noted her bathroom was recently renovated.[47] Mr Mate recommended a kitchen perching stool, a bed pole and an-over toilet frame to maximise the Applicant’s independence.[48]
[46] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 265.
[47] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 264.
[48] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 265.
In her oral evidence, the Applicant confirmed she had recently renovated her bathroom. Her bathroom does not have grab rails in the shower or beside the toilet, and she has not purchased a shower chair with arms. The Applicant’s oral evidence suggests she no longer uses a shower stool – but sometimes leans on a bench in the shower. Mr Mate, in his oral evidence, thought the bench was designed more for storing items, such as shampoo and soap.
Mr Mate noted the Applicant “reported she is able to drive short distances for less than 30 minutes” and “does not like to use trains, buses, or trams due to their jerky nature, the crowds of people and that they frequently have steps”.[49] The Applicant indicated to him that friends will often give her a lift to appointments but she can drive herself if they are not available.[50]
[49] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 264.
[50] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 265.
In relation to grocery shopping:
[The Applicant] reported she has difficulty performing full grocery shops due to the walking associated with carrying her groceries up and down her stairs. She stated that her friends will often assist her with full grocery shops and with carrying groceries.[51]
[51] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 266.
Mr Mate confirmed in his oral evidence, that at the time of his assessment, the Applicant was not working. Counsel provided Mr Mate with an update on the Applicant’s employment status and details of her commute to work. Mr Mate opined this functional capacity was in line with what he observed in her home.
Self-care
Mr Mate found that the Applicant was independent with toileting, personal hygiene, grooming and showering. The one exception involved cutting toenails, with the Applicant having regular pedicures.[52] The Applicant reported to Mr Mate “she had not cooked a full meal for a few weeks leading up to the assessment and had been ordering takeout, or her friends had been cooking for her”.[53] Mr Mate noted the Applicant sat on the bed to dress her lower body, had difficulty donning/doffing shoes and socks and used a shoe horn.[54] In his oral evidence, Mr Mate was of the view that whilst difficult, the Applicant can put on her shoes independently but should consider doing so from a seated position to reduce the risk of falls.
[52] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 265.
[53] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 265.
[54] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 265.
Mr Mate considered the Applicant able to independently wash her clothes, but recognised she would have difficulty carrying loads of washing downstairs. He noted she could hang laundry items on a clothes horse on her balcony or in her apartment.
In relation to cleaning, Mr Mate’s report found the Applicant could complete lighter house cleaning tasks but concluded the following tasks were outside her functional capacity:
(a)bathroom scrubbing
(b)full floor cleaning
(c)changing bed linen
(d)heavy lifting
In his oral evidence and following an update on her current circumstances, Mr Mate thought she could vacuum her apartment if she was not required to lift the vacuum cleaner and could rest as needed. He estimated the Applicant could lift between 3 to 5kg.[55]
[55] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 275.
Regarding assistance from others, the Applicant reported she currently “receives support from friends who assist her once or twice per fortnight with household cleaning”,[56] and “her friends and family… support her with heavy domestic tasks [she] is unable to complete independently and may also take her shopping”.[57]
[56] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 266.
[57] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 257.
In addition to the assistive technology recommended at paragraph 87 above, which the Tribunal recognises are applicable to both mobility and self-care, Mr Mate also recommended long-handled equipment, such as a sock aid, to reduce the need for bending during dressing and assistance for heavy house cleaning.[58]
[58] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 266.
He found the Applicant to be independent in the domains of communication, social interaction, learning and self-management.[59]
[59] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 253.
Based on all the evidence before it, the Tribunal finds that bathroom scrubbing, heavy lifting and cutting toenails are the three self-care tasks currently outside the Applicant’s functional capacity. The Tribunal does not accept the Applicant’s evidence that she has not changed her bed linen for 6 months. In circumstances where the Applicant repeatedly understated her functional capacity and is mobilising quite extensively in the community, I am satisfied she can change her sheets, vacuum, and mop.
CONSIDERATION
For the Applicant to gain access to the Scheme, the Tribunal must be positively satisfied that all the access criteria in either the disability requirements or the early intervention requirements are met. The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[60]
[60] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
Disability - Subsection 24(1)(a)
The Respondent accepts that subsection 24(1)(a) is met with respect to the Applicant’s physical impairments. The term ‘impairment’ is “generally understood as involving the loss or damage to a physical, sensory of mental function”.[61] The evidence indicates that the impairments arising from osteoarthritis and CRPS secondary to bilateral knee replacement are essentially pain, loss of strength and reduced movement / flexibility.
[61] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at 212 [51].
Dr Gade wrote in July 2022:
[The Applicant] has been attending to our practice for the last six years for her medical treatments. She has had bilateral Knee osteoarthritis for the last six year, however, her condition became worse gradually over the years with her bilateral knee pain. As a result, that affected her mental and physical health over the time.
Though, she received hydrotherapy, physiotherapy, Intra articular injections and an arthroscopy to maintain her mobility but had no help. Over the time, her condition worsen further and went for the bilateral total knee replacement five months back in Jan 2022. She has been recovering slowly with her hip and knee pains.
Moreover, she is divorced and living alone in first floor apartment and she has also been having more difficulty with her day to day activities with no any help. As her pains get worse with five to ten minutes of standing or walking. Due to her physical health, her mental health also affected and having regular counselling sessions with a psychologist for her depression and anxiety.
Currently, she is on antiinflammatories, physiotherapy and hydrotherapy on regular basis to improve her pains and quality of life.[62]
[62] Letter of Dr Gade – GP, 28 July 2022, T6 of JHB, p66.
The Tribunal heard from Dr Gade that the Applicant has more recently experienced pain and inflammation in her ankles and pain in her right wrist and hips. This pain appears to have been exacerbated by a fall in December 2023, with the Applicant landing on her left knee and right wrist. The exact cause of the pain is unknown and subject to ongoing investigations and treatment. Dr Gade confirmed that osteoarthritis is a progressive disease that may affect more joints over time. The Tribunal finds the Applicant’s physical impairments satisfy subsection 24(1)(a).
The Respondent disputed whether the Applicant had impairments arising from the conditions of depression and anxiety. In October 2022, Dr Gade completed a ‘Evidence of psychosocial disability form’ for the Applicant, with a diagnosis of “anxiety (or) depression” made in 2020.[63] She opined that “ongoing counselling will be beneficial to manage her wellbeing”.[64] As noted, the Applicant has not engaged in counselling for 2 years, she does not take any medication for her mental health, she is currently working full time and interacting with students and colleagues on campus. The evidence does not support a finding that the Applicant has a “reduced capacity to do daily life activities and tasks due to [her] mental health”,[65] or that her anxiety and depression results in “impairments which in interaction with various barriers may hinder [her] full and effective participation in society”.[66] The Tribunal accepts that the Applicant may have experienced (or continues to experience) periods of depression and/or anxiety, but is not satisfied that this results in an impairment. The Tribunal finds that subsection 24(1)(a) is not met in relation to impairments arising from a psychosocial disability.
[63] Evidence of psychosocial disability form by Dr Gade – GP, 28 October 2022, T10 of JHB, p95.
[64] Evidence of psychosocial disability form by Dr Gade – GP, 28 October 2022, T10 of JHB, p99.
[65] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024 p 7.
[66] Mulligan at [15].
Permanence – Subsection 24(1)(b)

The Respondent conceded prior to the hearing that the Applicant’s physical impairments of pain, loss of strength and reduced movement/flexibility in her knees were permanent.
The Applicant raised new impairments at the hearing, including ankle, wrist, and increased hip pain. During the hearing, Dr Gade confirmed she is unsure about the exact cause of these pains and intends to refer the Applicant to a pain management clinic and an orthopaedic surgeon for further investigations and treatment. She will also refer the Applicant to an orthopaedic surgeon to check her knee replacements and investigate why her pain has persisted beyond the usual recovery period.
The question arises whether in such circumstances the Applicant’s physical impairments can be said to be permanent. The Access rules provide relevant guidance:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4 An 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.
5.5 An 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.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.[67]
[67] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
In the decision of Davis, Mortimer J (as she then was) said of the meaning of “permanent” in s 24(1)(b):
The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis.[68]
[68] National Disability Insurance Agency v Davis [2022] FCA 1002 at [130] (“Davis”).
Mortimer J observed that the rules in r 5.4 and r 5.6 were exclusionary, in the sense that they “prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person’s impairment will be excluded from meeting the permanency criterion in s 24(1)(b)”.[69]
[69] See Davis at [75]. See also [158].
In relation to the Applicant’s ankle, wrist and hip pain, the Tribunal finds that these impairments are still within the early stages of investigation and treatment. The Applicant has received some treatment, such as anti-inflammation and steroid medication, however, the underlying cause of the pain is yet to be determined, and additional treatments are planned and available to the Applicant, including a referral to a pain management clinic (which she has attended previously), re-engagement with a physiotherapist (which Dr Gade seemed to assume was already taking place), an assessment by an orthopaedic surgeon and the consideration of an increase to the strength and/or dose of her current pain medication (Panadol Osteo).[70]
[70] Davis at [139 – 140].
In relation to the Applicant’s physical impairments of pain, loss of strength and reduced movement/flexibility in her knees, arising from osteoarthritis, and CRPS secondary to a bilateral knee replacement, the question became more complicated by the oral evidence at hearing. Dr Gade confirmed that the Applicant has not seen an orthopaedic surgeon in Australia since her surgery in India in early 2022. Accordingly, Dr Gade was unable to rule out that complications arising from surgery or the need for revision could be the cause of the Applicant’s pain and discomfort. Further, Dr Cork, an osteopath made the diagnosis of CRPS. The Tribunal understands that Dr Cork is not a medical doctor and therefore it is questionable whether he is qualified to make such a diagnosis. Irrespective of that, it also remains unclear whether such a diagnosis or confirmation of permanency can be made in circumstances where an orthopaedic surgeon has not reviewed the Applicant’s knee replacements and excluded problems with the implant itself. For these reasons, the Tribunal cannot be satisfied that the Applicant’s physical impairments arising from CRPS secondary to a bilateral knee replacement are permanent.
Similarly, the Applicant’s osteoarthritis diagnosed 8 years ago by Dr Gade,[71] is a degenerative condition that causes pain. The Tribunal accepts that osteoarthritis can cause permanent pain in joints and such pain is unlikely to be completely remedied by pain medication However, the Tribunal was not provided with any evidence to suggest osteoarthritis can cause the pain described in artificial joints, or that it is the cause of pain in the Applicant’s knees at present. In such circumstances, the Tribunal cannot be satisfied that the pain, loss of strength and reduced movement/flexibility in the Applicant’s knees is permanent.
[71] Letter of Dr Gade – GP, 28 July 2022, T6 of JHB.
For completeness, if the Tribunal had identified impairment(s) attributable to a psycho-social disability, it would have found they were not permanent for the purpose of section 24(1)(b). This is because the Applicant has not engaged in known, available and appropriate evidence-based treatments likely to remedy the impairment for at least 2 years.[72] She has not sought a mental health plan allowing for subsided sessions with a psychologist or psychotherapist and is presently not taking medication for any mental health concerns.
[72] See Rule 5.4 - National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth).
For the reasons outlined above, the Tribunal finds that the Applicant does not satisfy subsection 24(1)(b).
Substantially reduced functional capacity – Subsection 24(1)(c)
In the event the Tribunal is wrong on the issue of permanency, the Tribunal will now consider the Applicant’s function capacity pursuant to section 24(1)(c).
A key issue at hearing was whether the Applicant’s impairments result in substantially reduced functional capacity in at least one of the six functional domains of communication, learning, self-care, self-management, social interaction, and mobility. As the Tribunal is not satisfied as to the existence or permanency of the Applicant’s psychosocial impairments, and the Applicant did not suggest at the hearing that such impairments affect her day-to-day functioning, the Tribunal only considered her physical impairments when assessing whether section 24(1)(c) is met.
Broadly speaking, the Respondent accepts the Applicant has limitations in relation to her mobility and self-care. However, the Respondent considers that overall, she can mobilise independently in the home and community without assistive technology, equipment or assistance, and she can similarly complete most self-care tasks, albeit at a slower pace. The Respondent submits the Applicant’s limitations do not rise to the threshold of substantially reduced functional capacity in mobility or self-care.
The test in subsection 24(1)(c) is one of objective functional capacity and requires the Tribunal to consider both what the person can and cannot do,[73] while having regard to the impact of pain on the person’s functional capacity.[74] The Tribunal must also distinguish between what the person does not do, as opposed to what they cannot do.[75]
[73] Mulligan at [55].
[74] NVRY and National Disability Insurance Agency [2023] AATA 1019 at [169].
[75] Timofticiuc and National Disability Insurance Agency [2021] AATA 3015 at [96].
As I have noted above, in determining whether the Applicant meets subsection 24(1)(c), the Tribunal is bound to apply the legislation as enacted, including the NDIS Access Rules. The Access Guidelines form part of the NDIA’s policy framework, and to the extent they are consistent with the Act, should be applied unless there is good reason not to do so.[76]
[76] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
In respect of subsection 24(1)(c) of the Act, Rule 5.8 of Access Rules prescribe circumstances or criteria to be applied in assessing whether the Applicant’s impairments result in a substantially reduced functional capacity to undertake tasks of daily living in one or more of the six relevant domains:
5.8 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.[77]
[77] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth).
In Mulligan,[78] Mortimer J explained that rule 5.8 of the Access Rules is a deeming provision; that is, if a person’s circumstances are caught by its terms, they must be taken to have a substantially reduced functional capacity for the purposes of subsection 24(1)(c). However, her Honour made clear that considering a person’s circumstances through the prism of rule 5.8 is only part of the statutory task. If the deeming provision is not met, the decision maker must proceed to consider whether, regardless of rule 5.8, a person’s functional capacity is substantially reduced in any of the six domains of activity.[79] The Access Guidelines naturally inform this task.
[78] Mulligan at [66-67].
[79] Mulligan at [77].
The word “substantially” carries a high threshold in section 24(1)(c). Its meaning should be considered in the context that the NDIS was not intended to provide reasonable and necessary supports to every person with a disability. In assessing the Applicant's functional capacity, the Tribunal will take a 'wholistic' approach to determine what the Applicant can and cannot do. As the Tribunal said in Madelaine, having a substantially reduced functional capacity to care for oneself “imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being”.[80]
The application of rule 5.8: the deeming provisions
[80] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [121].
Rule 5.8(a)
The Full Court of the Federal Court of Australia in Foster,[81] decided that it was an error to equate a person’s inability to undertake one task forming part of “self-care” (in that case, toileting) and to deem this to be the relevant activity for which functional capacity was required to be assessed. Under rule 5.8(a), a person will not necessarily be deemed to have substantially reduced functional capacity simply because one or more tasks is unable to be completed without assistive technology. The significance of the task to the overall concept of the activity is also relevant. It remains for the decision-maker to assess the degree to which the person can participate in the activity.[82] For present purposes, the Tribunal is required to consider the bundle of tasks and actions within each domain and determine the tasks the Applicant can do and those she can’t do because of her impairments.
[81] Foster at [64-65].
[82] Foster at [88].
There are two key questions that must be considered when assessing whether the Applicant has substantially reduced functional capacity under rule 5.8(a). The first question is to consider what it means to say someone is unable to participate effectively or completely in mobility or self-care. The second is to determine what is meant by assistive technology or equipment (other than commonly used items such as glasses) and whether it could be said the Applicant uses either.
In Foster, their Honours held that “[i]n the overall legislative scheme, the adverb ‘completely’ appears to be redundant, and in any event, unachievable”.[83] For this reason, the word ‘effectively’, should be the focus and is taken to mean “serving to effect the purpose; producing the intended or expected result”.[84] In this sense, perfection is not the standard. Further, undertaking a task differently or more slowly to others will not necessarily mean a person cannot participate effectively or completely in an activity.[85]
[83] Foster at [83].
[84] Macquarie Dictionary (8^th ed, Macquarie, 2020) at p 493 cited in Foster at [82].
[85] Foster at [67].
The terms assistive technology or equipment is not defined in the NDIS Act or Rules. “Assistive technology” is defined in the Assistive Technology Operational Guideline, issued by the NDIA on 20 June 2022, in the following way:[86]
[86] As cited in Foster at [41].
The World Health Organisation has a universal definition of assistive technology.
Assistive technology is equipment or devices that help you do things you can’t do because of your disability. Assistive technology may also help you do something more easily or safely. Assistive technology will reduce your need for other supports over time.
This could be small things like non-slip mats, or special knives and forks. It could be big things like wheelchairs and powered adjustable beds. It also could be technology like an app to help you speak to other people if you have a speech impairment.
Not all equipment or technology you use is assistive technology. Many people use some equipment as part of their lives, for example, a radio to listen to music, or a standard microwave oven to cook food.
Assistive technology is only the equipment you need because it helps you do things that you normally can’t do because of your disability. It includes items that:
•           mean you need less help from others
•           help you do things more safely or easily
•           help you to keep doing the things you need to do
•           allow you to do tasks independently
•           are personalised for you.
(My emphasis)
This Tribunal is of the view that there is no inherent quality to assistive technology or equipment beyond the function to help people do things they normally can’t, or which are particularly difficult. It does not necessarily need to be prescribed or purchased, for example, at significant cost. ‘Commonly used items’, also not defined in the Act or Rules, should be interpreted using a plain reading of the text. By way of example, glasses are commonly used items because they are routinely used by a wide range and large number of people to improve vision.
Rule 5.8(b)
Under this rule, the Tribunal must consider the specific task or tasks that the Applicant usually requires assistance with to determine whether, overall, she experiences a substantial reduction of her functional capacity in the activity. The term ‘assistance’ incorporates physical assistance, guidance, supervision or prompting.
Rule 5.8(c)
It is clear from the evidence that rule 5.8(c) is not relevant to the Applicant due to her current level of functional capacity.
Mobility
Mobility, or moving around which is described 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”.[87]
[87] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
The Tribunal accepts that the Applicant has used a four-point walking stick since her bilateral knee surgery in early 2022 and is satisfied the Applicant’s walking stick is a form of assistive technology.
The Tribunal acknowledges that there is an overlap between mobility and self-care, for example, many cleaning tasks involve some mobility. The Tribunal will deal with the other forms of assistive technology raised in this hearing in relation to self-care below.
The Tribunal is satisfied that the Applicant can walk 500 meters without her walking stick, if she remains on a flat, paved surface. It was unclear from Mr Mate’s report whether he believed that the Applicant needed her walking stick to ascend or descend stairs or whether the use of the handrail was sufficient support.[88] He noted that the walking stick provided some support for transfers. It was clear from the Applicant’s oral evidence (including through the testing of that evidence) that her employment and commuting circumstances have changed significantly since the time of her assessment with Mr Mate. Therefore, some of his conclusions are out of date, for example, that she can only stand for 10 to 15 minutes. The Applicant’s own evidence suggests she can walk without her stick and stand for much longer. It was also clear that the Applicant withheld relevant information from Mr Mate such as her work as a psychotherapist and her associated mobility within the community visiting clients.
[88] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 257 indicates the Applicant was “observed to ascend/descend these steps independently, demonstrating symptoms of pain using the handrail for support” whereas p 262 (including a photo) states the Applicant “was observed to use the handrail and her 4-point stick when using her stairs”.
The Applicant indicated in her oral evidence that she can only use stairs by using her walking stick. Noting the issues identified above with the Applicant’s credibility and the lack of corroborating evidence, I am not persuaded that this is the case. I accept that the walking stick helps to maximise her capacity walking up or down stairs, but I am satisfied there are occasions when she uses only the handrail for support, for example, when taking the rubbish out or carrying other items up or down the stairs. I find that the Applicant is not captured by rule 5.8(a) in relation to mobility.
The Applicant gave evidence that a friend took her grocery shopping 3 weeks ago. Noting the Applicant’s mobility within the community at paragraph 77, the Tribunal is not satisfied, that she requires any assistance with grocery shopping except to carry heavier items upstairs. Noting the Applicant leaves her home by car at least 6 days per week (to attend train station/work, hydrotherapy, and church) and walks past grocery shops on her commute to and from work, I am satisfied occasional assistance from a friend or online delivery of heavier items is all that is required to overcome any difficulty with this task. I find that the Applicant is not captured by rule 5.8(b) in relation to mobility.
The evidence of the Applicant at paragraph 77 demonstrates a woman who lives independently at home, has an active life in the community and can access all essential locations by using her car and public transport in combination with walking. Notwithstanding that some tasks, such as walking up or down stairs, are more difficult, involve pain and/or may need to be done more slowly[89], the Tribunal finds that the Applicant does not have substantially reduced functional capacity in the domain of mobility.
[89] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [74 – 76].
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 bath, eat or go to the toilet”.[90]
[90] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
The Tribunal heard the Applicant uses a long-handled reacher (to pick up items off the floor), a shoehorn and a shower stool. Mr Mate also recommended long-handled equipment such as sock aid or sponge, a shower chair with arms, a kitchen perching stool and an over-toilet frame to assist with transfers in the context of self-care. For reasons described above at paragraph 126 – 127, the Tribunal is satisfied that such equipment is assistive in nature.
The Applicant gave evidence that she renovated her bathroom however the renovation did not include simple modifications or supports such as handrails beside the toilet or the inclusion of a shower chair. The Applicant indicated she sometimes leans on the bench in the shower, suggesting she no longer uses a shower stool. The Applicant described standing for long periods during the commute to work. Mr Mate gave evidence that the Applicant could put on her shoes and socks, albeit with some difficulty, but it would essentially be easier with a sock aid.
The Tribunal previously found the Applicant can undertake most self-care tasks except for scrubbing her bathroom floor, lifting heavy items, and cutting her toenails. None of the assistive technology recommended would help her complete those tasks. Mr Mate confirmed the equipment recommended was “to increase her safety with transfers, to make them easier and safer. She is currently able to perform them”.[91] Such equipment would undoubtedly support the Applicant’s existing independence in terms of showering, dressing, and cooking; however she does not need those items to participate effectively in the domain of self-care. For this reason, rule 5.8(a) does not apply to the Applicant.
[91] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p278.
Multiple documents before the Tribunal, including Mr Mate’s report, indicated the Applicant was receiving regular cleaning assistance from family or friends. The Applicant retreated from that position at hearing, claiming she has not received any help with her cleaning for 6 months. As I have already found, the Applicant can complete all but one personal-care task (cutting toenails) and almost all essential cleaning tasks. The Tribunal is not satisfied the Applicant usually requires assistance within the domain of self-care and is therefore not captured by rule 5.8(b).
The totality of evidence supports the conclusion that the Applicant does not meet the threshold of substantially reduced functional capacity. Whilst she is unable to scrub floors, carry heavy items or cut her own toenails due to pain and reduced strength / flexibility, she is otherwise independent in the activity of self-care.
Communication
The Agency considers – “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] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
The evidence indicates that the Applicant can communicate independently. Mr Mate reported that the Applicant is independent in this activity, noting she is able to speak independently, understand others and express herself.[93] This is also supported by several forms and statements filed by the Applicant and her participation in the hearing.
[93] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 282.
The Tribunal finds the Applicant is independent in the domain of communication.
Learning
This is “how you learn, understand and remember new things, and practise and use new skills”.[94]
[94] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
The Applicant has a PhD and is employed full-time as a lecturer with an education institute in Melbourne. Mr Mate concluded the Applicant could recall details of her treatment history and life without difficulty.[95]
[95] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 264.
The Tribunal finds the Applicant is independent in the domain of learning.
Social Interaction
The Access Guideline refers to 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”.[96] This domain requires the Tribunal to focus primarily on the skills of social interaction, not the opportunity to exercise the skills.
[96] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
The Applicant teaches classes of 20 students, 3 days per week and attends church on a weekly basis. She maintains relationships with friends and family, both online and face to face when they visit. There was no evidence of difficulties interacting and behaving within socially acceptable limits.[97]
[97] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p 278.
The Tribunal finds the Applicant is independent in the domain of social interaction.
Self-management
This is “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”.[98]
[98] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p9.
The evidence demonstrates that the Applicant makes her own decisions and manages her own finances.[99] She is also able to obtain and retain employment.
[99] Report of Mr Mate – OT 8 November 2023, R1 of JHB, p 283-284.
The Tribunal finds the Applicant is independent in the domain of self-management.
The Applicant does not meet section 24(1)(c).
Social and Economic Participation – Subsection 24(1)(d)
The Tribunal notes that the Applicant’s economic participation does not seem to be currently affected however I am satisfied the Applicant’s impairments affect her capacity for social participation to a degree, as she is less inclined to socialise outside of the home due to pain and limits on her mobilising. On this basis, she meets subsection 24(1)(d).
Lifetime NDIS assistance – Subsection 24(1)(e)
The Respondent contended that subsection 24(1)(e) of the Act only arises for consideration if the Tribunal finds that the other criteria in subsection 24(1), especially paragraphs (b) and (c) are met. This is because, where a person’s impairment is not permanent or does not result in a substantially reduced functional capacity, the Tribunal could not be satisfied that “the person is likely to require supports under the [NDIS] for the person’s lifetime”.
The Tribunal agrees and finds the Applicant does not meet subsection 24(1)(e).
SECTION 25 – EARLY INTERVENTION
Having concluded the Applicant does not satisfy section 24, the Tribunal is now required to consider her access to the scheme under section 25. The Tribunal has found the Applicant’s impairments are not permanent. She therefore does not meet 25(1)(a)(i) of the Act.
Further, section 25(1)(b) of the Act requires the decision maker to be satisfied the 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.
Rule 6.9 requires the decision maker to consider the following matters when determining whether the provision of early intervention supports is likely to benefit the person by reducing the person’s future needs for support.
(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 support;
…
The Respondent contends the Applicant’s osteoarthritis and accompanying impairment of pain has existed for a significant period. Owing to its degenerative nature, the Respondent says her impairment is likely to worsen over time and her future needs will increase.
It appeared from the Applicant’s evidence that if granted access to the scheme, she would be seeking assistance with transport, cleaning, and groceries. Similarly, the supports identified in Mr Mate’s report cannot be characterised as early intervention supports. He confirmed he did not “have recommendations that will reduce her disability-related support needs aside from the transfer equipment” to “make them easier and safer”.[100] Dr Gade opined “ongoing treatment and interventions are aimed at maintenance and personal recovery; however, the impairment is likely to remain regardless of ongoing treatment/interventions”.[101]
[100] Report of Mr Mate – OT, 8 November 2023, R1 of JHB, p277-8.
[101] Letter of Dr Gade – GP, 28 July 2022, T6 of JHB, p72.
The Tribunal is not satisfied that there are early intervention supports available that would benefit the Applicant by reducing her future need for support. Accordingly, I find the Applicant does not meet section 25(1)(b) of the Act.
As the Applicant has not met either the disability requirements or the early intervention requirements of the Act, the Tribunal must affirm the decision under review. Should the Applicant’s functional capacity change in the future, she may make a further NDIS access request before turning 65 years of age.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for the decision herein of Member N Purcell.

............................[SGD]..........................................
Associate
Dated: 18 September 2024

Date(s) of hearing: 22 and 23 August 2024 (by video)

Solicitors for the Respondent: Ms Amanda Whiteley, Maddocks

Date(s) of hearing:	22 and 23 August 2024 (by video)
Solicitors for the Respondent:	Ms Amanda Whiteley, Maddocks