Evans and National Disability Insurance Agency (NDIS)

Evans and National Disability Insurance Agency (NDIS) [2025] ARTA 725 (11 June 2025)
Applicant/s:  Ms Karen Evans
Respondent:  National Disability Insurance Agency
Tribunal Number:                2024/1642

Tribunal:General Member D Heron
Place:Brisbane
Date:11 June 2025
Decision:The Tribunal affirms the decision under review pursuant to paragraph 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

...............[SGD]..................
General Member D Heron
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – substantially reduced functional capacity criteria not met – whether applicant meets disability requirements – NDIS Act s24(1)(c) – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
CASES
Davis and National Disability Insurance Agency (2023) AATA 1437
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
Rooney and National Disability Insurance Agency [2021] AATA 3523
SECONDARY MATERIALS
National Disability Insurance Scheme - Operational Guidelines – Becoming a Participant – Access < align="center">Statement of Reasons
BACKGROUND

Ms Evans (the Applicant) is a 50 year old woman seeking access to the National Disability Insurance Scheme (the NDIS) on the basis of impairments from her diagnoses of porphyria variegata, pelvic floor instability, depression and anxiety.[1]
[1] JTB, A1, 5.
Ms Evans works part-time and is in receipt of the disability support pension (DSP).
On 18 August 2023, Ms Evans lodged a request to become a participant in the NDIS. The Access Request Form stated porphyria as her primary disability.[2]
[2] JTB, T6, 77.
On 11 December 2023, the National Disability Insurance Agency (the Respondent) determined Ms Evans did not meet the access criteria in the National Disability Insurance Scheme Act 2013 (Cth) (the Act) as the Agency was not satisfied her impairments were permanent nor resulted in substantially reduced functional capacity.
An internal reviewer confirmed this decision on 13 March 2024. On 20 March 2024 Ms Evans applied to the Administrative Appeals Tribunal (AAT) for a review of this internal review decision.[3]
[3] JTB, T1, 20-29.
The hearing was set down for 5 and 6 June 2025. On 28 May 2025, Ms Evans emailed the Respondent requesting a hearing on the papers. The Respondent consented to the request.
The Tribunal was notified by the parties on 30 May 2025 regarding the request for hearing on the papers under ss106(1) and (2) of the Administrative Review Tribunal Act 2024 (Cth). I have since considered the materials and evidence in this matter, separate to the views of both parties. It is important that I consider whether the Applicant and Respondent have had adequate opportunity to consider and respond to the materials filed. I have turned my mind to this question, and I am satisfied that on the totality of evidence that the issues for determination can be adequately addressed and determined in the absence of parties appearing in a hearing.
In my determination of this matter, I have considered all the material filed in the agreed Joint Tender Bundle (the JTB) and email correspondence between the parties in relation to the hearing on the papers request, marked as Exhibit 1. I will refer to the evidence that is directly relevant to my determination of this matter.
RECENT TRIBUNAL AND NDIS ACT AMENDMENTS
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Back on Track Act) commenced on 3 October 2024 and made significant amendments to the Act. As Ms Evans’ request for access was made before 3 October 2024, the Act, Rules and Guidelines apply as they existed before the commencement of the Back on Track Act.
LEGISLATIVE FRAMEWORK
The access criteria
Before turning to the issues, I note the following aspects of the statutory regime regarding access to the NDIS. To become a participant, the following criteria in subsection 21(1) of the Act must be satisfied:
(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).
The parties agree that Ms Evans satisfies the age and residence requirements. The main question before me is whether Ms Evans satisfies the access criteria in section 24 (the disability requirements).
Section 24 of the Act states:
(1)A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the national Disability Insurance Scheme for the person’s lifetime, despite the variation.
If I find Ms Evans does not meet the disability requirements, then I must turn my mind to the early intervention requirements set out in section 25 of the Act. This section states that:
(1).A person meets the early intervention requirements if:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii)is a child who has developmental delay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
The relevant rules to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation.
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).
The NDIS Operational Guidelines also assist in making decisions in accordance with the Act on whether a person meets the disability requirements or the early intervention requirements. The Federal Court in ReDrake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577 held that relevant government policy should be applied by the Tribunal unless there is good reason not to do so.
Issues
The issues for determination before me are:
·Whether Ms Evans’ impairments are, or are likely to be, permanent[4]; and
·Whether Ms Evans’ impairments result in substantially reduced functional capacity.[5]
EVIDENCE
[4] Section 24(1)(b) of the NDIS Act.
[5] Section 24(1)(c) of the NDIS Act.
Evidence about Ms Evans
Ms Evans has impairments arising from the following diagnoses:
a)porphyria variegata
b)pelvic floor instability
c)depression and anxiety
Ms Evans currently lives with a housemate in a rented home. She works part-time 2 days a week, in an indoor role, usually during the morning hours.
Her parents drop over meals when she is having a flare up and is too unwell to undertake her daily living activities.
Medical consultation for her symptomology with her general practitioner began in 2002. However, her clinical diagnosis of porphyria was not officially established until 2009 after undertaking multiple biopsies and reviews.
Ms Evans has experienced anxiety, depression and panic attacks since her initial consults. She has been treated pharmalogically since 2005 for these conditions and her general practitioner lists her conditions as stable.
She has attended the Prince Alfred Hospital porphyria clinic and undertakes a highly compliant porphyria lifestyle involving dietary adjustments, sun protection, sleep regimes and avoidance of known triggers where possible.
Ms Evans is highly sensitive to temperature, with warm weather being an extreme trigger causing vomiting, diarrhoea, extreme exhaustion and functional incapacitation.
She wears SPF clothing and sunglasses both indoors and outdoors to limit her sun exposure.
Ms Evans provided a written Statement of Lived Experience[6] where she details that:
I owned a home and had double tinted windows and garage for my car- so I wasn’t getting in car with hot interior. Also ducted aircon in the home so that I had the whole home to explore and not just a bedroom with portable aircon and trapped in 1 room.
I had to sell as I couldn’t afford repayments and strata fees. Rentals with aircon are so expensive and I have in the past paid for aircon to be installed in rental twice. I wear my sunglasses inside which are also expensive in prescription. The last rental I had to use portable aircon and have at my bed and its loud and disturbs my sleep. I also use a cooling electric bed that has a motor and fans, not ceiling fan. SO to have aircon and ceiling fan would be so much better for quality of sleep. That rental included electricity or I cant afford to run 24-7 like I need. The roof leaked & I have to vacate that day-CURRENTLY- Im staying with friends without aircon.
My electric cooling bed died, so I use ice packs in the bed and fan- taking medication for nausea as Im heating up at night even though its winter- that’s how my body temp regulates- badly- Iv applied for over 30 rentals- with friends- as alone I cant afford the rent-. I need a home, with aircon and fans and garage. I need help to pay electric and the rent or il feel sick like I do till attack hits. Social- Im stuck inside & miss all events from Oct till May. I cant escape the heat Unless I had camper to travel with aircon, bed, toilet, I could park at peoples events, interact and retreat to camper and regulate and repeat- Dreamy. I get sad and angry and depressed, missing weddings and work social events, people don’t get it- at night- its still over 20degrees and lights have UV so it affects me the same.
Hard to maintain friendships, but I have few great friends. People get sick of asking and even if I say il go, I could end up sick that week, then I cant go, If I need id end up in attack and bed ridden for days.[7]
[6] JTB, C1, 212-213.
[7] JTB, C1, 212.
In Ms Evans email correspondence with the Respondent, she notes that the Functional Capacity Assessment undertaken on behalf of the Respondent, was scheduled during the winter cooler months, not during the other hotter months of the year where she experiences functional incapacitation.[8]
[8] Exhibit 1, Emails between A and R, email Ms Evans to Mr Marshall dated 28 May 2025.
Ms Evans also addresses the subcutaneous implant for porphyria patients. Her evidence is that she researched this15 years ago when it was legalised in America and the cost was around $25,000.[9] She notes in her email to the Respondent the subcutaneous implant brand named Scenesse is now approved in Australia, however this implant is not listed on the PBS.[10]
[9] JTB, D1, 263
[10] Exhibit 1, Emails between A and R, email Ms Evans to Mr Marshall dated 28 May 2025.
Evidence of M Miszczuk, occupational therapist
Mr M Miszczuk an independent occupational therapist engaged by the Respondent, undertook a functional capacity assessment with Ms Evans. His report dated 20 August 2024 is before the Tribunal.[11] In his report Mr Miszczuk states that:
[11] JTB, D1, 260-261.
3.2.1 Variation in symptoms
Ms Evans stated, “My best months are June to August”, because sunlight and temperatures are less extreme throughout the winter. Ms Evans outlined that her variation in symptoms are most severe in the summer months and are exacerbated by stressors (such as sunlight and heat).
Acute flare ups occur in both the summer and winter. However, in winter (and owing to cooler temperatures and less intense sunlight), Ms Evans is better able to recover quicker from exacerbations, “in days”, while also managing exacerbations with her diet (high levels of glucose and carbohydrates). Ms Evans stated her recovery from acute flare ups in summer is more difficult, which can result in acute hospitalisations, with recovery post discharge ranging from “days to weeks.”
Ms Evans reported experiencing the following:
• Excessive sweating
• Painful and sensitive skin in general, made worse by exposure to heat and UV sunlight resulting in skin lesions
• General weakness and tiredness, which are exacerbated after an acute attack. Ms Evans loves her job. She is in receipt of the DSP and for the past 4 years, has worked 4 hours per day, 2 days per week. She said that after work, “I feel exhausted. Like I have worked 17 hours.”
• Attacks exacerbate fatigue and result in stomach pain and nausea, with 2 to 3 hours of dry heaving. If medication (Zofran) does not manage her flare up, Ms Evan’s contacts an ambulance. If symptoms are not controlled, she is admitted to hospital. Recovery from an attack range from days to weeks.
• When recovering from an attack, “I sleep for 17 hours a day, waking up for toilet and meals.”
• Exacerbation of all above listed symptoms in the summer months where Ms Evans avoids the outdoor environment. She described going outdoors as “running the gauntlet … when I go outside feel like I have zapped with an x-ray.” Ms Evans attempts to minimise her symptoms by staying indoors and using air conditioning to reduce the ambient temperature in her room. She finds herself increasingly frustrated and socially isolated in the summer months, which has a negative impact on her mental health and results in more frequent use of prescribed Valium.
3.2.2 Typical day
Ms Evan’s reported a typical day as follows.
• “I’ll get up 7:30 and have breakfast and make the bed.
I work two days a week in childcare … it’s a 5-minute drive away. I do the early morning shift. I’m either inside or the sun is less intense.
• Most of the days that I’m not working, I’m reading or sleeping in the living room (because that is where the air con is).
• Otherwise, I’ll spend time with family, friends or my house mate.
• I have lukewarm showers in winter and cold showers in summer every second day.
• I go to bed by 8pm.”
• Ms Evans advised she has no air conditioning in her bedroom. She normally has a cooling blanket, but this is malfunctioning. Due to excessive sweating overnight, Ms Evans stated she has to twice change her clothing.”
3.2.3 Function on the day of assessment
Ms Evans described the day of the assessment as a “fairly typical good day.”
Mr Miszczuk in his report under the heading 3.4 Prognosis states that Ms Evans should discuss the appropriateness of the controlled release implant called Scenesse indicated by the TGA website as being for ‘prevention of phototoxicity in adult patients with erythropoietic protoporphyria (EPP)’.[12]
[12] JTB, D1, 263.
Doctor E Kertesz, general practitioner
Doctor Kertesz is the medical professional who completed Ms Evan’s NDIS Access Request form in 2023. The NDIS Access Request form explains Ms Evans is seeking access to the scheme for supports such as having direct support worker assistance along with consumables such as SPF clothing and assistive technology for thermoregulation and environmental cooling.
The Respondent prepared targeted questions for Dr Kertesz dated 6 November 2024. Dr Keresz provided his Response to Targeted Questions dated 24 December 2024.[13]
[13] JTB,C7, 251 -253.
Response to Targeted Questions by Dr Kertesz can be summarised as follows:
·Ms Evans depression is currently stable with current medication with regular review and assessment of psychological status ongoing.
·Bowel function has improved with surgery. Has had numerous premalignant lesions attended to over the years.
·Needs up to date re-testing for porphyria, re-investigation due to significant advances in porphyria bio-evaluation.
·Requires regular sacral stimulator review with ongoing psychology and counselling.
·Requires ongoing environmental control for her porphyria.
He also supplied a Medical Certificate dated 8 January 2024 outlining her diagnosis of porphyria and that she requires thermoregulation. Dr Kertesz also notes in this certificate that Ms Evans would be assisted by having a garage for her car to aid in it staying as cool as possible to limit her attacks.
Dr E Wegman, consultant gastroenterologist
Doctor Wegman is Ms Evan’s treating gastroenterologist and he was sent Targeted Questions by the Respondent. His response dated 9 August 2024 can be summarised as follows:
·Has treated Ms Evans for over 18 years with his last consultation held on 20 July 2024
·Ms Evans has been reviewed by the Royal Price Alfred Hospital at the porphyria clinic
·Ms Evans is highly compliant with her lifestyle management and her current medications are appropriate

He also enclosed various photographs of Ms Evans’ skin lesions that had healed and notes the treatment plan for her ongoing management is:
·Continuation of her meat free diet
·Undertaking three yearly colonoscopy reviews
·Continue nerve stimulation through the Royal Prince Alfred Hospital clinic
·Continue with her highly compliant porphyria lifestyle management.[14]
CONSIDERATION
[14] JTB, C2, 215.
Impairment
The Respondent accepts in its Statements of Facts, Issues and Contentions that Ms Evans meets the disability criteria under paragraph 24(1)(a) of the Act on the basis of her impairments attributable to her porphyria variegata and pelvic floor instability. The Respondent further accepts the Applicant has impairments arising from her depression and anxiety.[15]
[15] JTB, A1, 7.
Having considered the evidence, Ms Evans has been treated pharmacologically for her depression and anxiety since 2005. Her treater Dr Kertesz notes her condition as being currently stable.
In her Statement of Lived Experience she outlines:
When I am well, 5 mins and need to rest. Cant walk up hills, leg muscles cant cope. But when I am in attack mode- Bed ridden for days…I don’t use walker. But I use a cane after getting out of bed for balance, after falling several times and fracturing toes and dislocated toes.[16]
[16] JTB, C1, 212.
On the evidence before me, I am satisfied that Ms Evans has physical and sensory impairments attributable to porphyria variegata and pelvic floor instability along with psychosocial impairments flowing from her depression and anxiety, such that s24(1)(a) of the Act has been met.
Permanency
To meet the disability requirements under paragraph 24(1)(b) of the Act the impairment or impairments are required to be permanent. Fluctuations in intensity or impairments that are variable can still be considered permanent as subsection 24(2) of the Act provides that impairments that vary in intensity may be permanent, and the person may be considered likely to require support under the NDIS for the person’s lifetime, despite this variation.
Rule 5.4 of the Access Rules states if there is no known, available and appropriate evidence-based clinical, medical or other treatments that are likely to remedy the impairment it is considered permanent under the legislation. The definitions of ‘known, available and appropriate evidence-based clinical, medical or other treatments likely to remedy’ have been clarified in National Disability Insurance Agency v Davis [2022] FCA 1002.
Rule 5.6 states that 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).
The Respondent in its Statement of Facts, Issues and Contentions states[17]:
[17] JTB, A1, 7-8.
The evidence before the Tribunal is insufficient to satisfy it that any of the Applicant’s impairments are “permanent”:
a. Porphyria variegata: A letter from Bay Medical Group (December 2024) stated that the Applicant “needs up to date re-testing for porphyria”, because of “significant advances in porphyria bio-evaluation”. It was indicated that, in 2024, a better and more accurate diagnosis could be achieved more easily, and at less expense: the Applicant’s “porphyria requires further assessment for clarity of diagnosis”, and “every effort needs to be made to consolidate the diagnosis of porphyria for continued management”.
In circumstances where the Applicant’s treating Doctors have indicated a need for further diagnosis, and that this is relevant to continued management of the Applicant, the Tribunal cannot be satisfied that there are no known, available and appropriate treatments. ,
Additionally, there is evidence before the Tribunal that the Therapeutic Goods Administration approved, in 2020, Scenesse, a controlled release implant for porphyria (see report of Mateusz Miszczuk, P10). The evidence does not suggest that the Applicant has taken up this option.
b. Pelvic Floor Instability: Recent evidence of Dr Wegman (August 2024) indicates
that the Applicant is seeing a colorectal surgeon, Professor Byrnes, “and has an implant stimulator which is controlling the pelvic floor and actually significantly helping the incontinence issues”, and that the Applicant “has had good results from the pelvic floor stimulator”. A letter from the Bay Medical Group (December 2024) also refers to the Applicant having a trial of a nerve stimulator, which was, in August 2024, replaced with a permanent implant. Accordingly, the evidence suggests that there are appropriate treatments available to the Applicant.
c. Depression and Anxiety: A letter from Bay Medical Group (December 2024) indicates that the Applicant has been treated with medications and “has been stable” over the years. Reference is made to the Applicant being “treated in general practice”. It is also stated that her psychological status “is stable” but she needs regular assessment and review.
Accordingly, the evidence suggests that there are appropriate treatments available to the Applicant.
I note that while the Respondent references the Australian Therapeutic Goods Administration approval of Scenesse, a controlled release implant for porphyria, Ms Evans has supplied evidence of it not being available on the Pharmaceutical Benefits Scheme (PBS) in Australia.
Dr Kertesz in his Medical Certificate dated 8 January 2024 agrees and outlines that Ms Evans is reliant on oral pharmacological preparations as the subcutaneous implant for skin related porphyria symptoms is not yet available in Australia.[18]
[18] JTB, T1, 101.
Dr Wegman, her consultant gastroenterologist in his Response to Targeted Questions dated 9 August 2024 states:
Is highly compliant with her treatment regimes. The treatments have been highly optimised and stabilised. Her porphyria variegata is stable, and she has had good results from the pelvic floor stimulator.[19]
[19] JTB, C2, 215.
The Respondent refers to the ‘retesting’ in the Bay Medical Group letter, in my consideration however I am not persuaded that the implication of re-testing means Ms Evans has a pathway to treatment constituting a remedy in the sense contemplated bule Rule 5.4 and in Davis.[20] I am of the view the ongoing re-testing mentioned by the Doctor goes instead toward optimising her ongoing management.
[20]Davis and National Disability Insurance Agency (2023) AATA 1437 at 65.
From the evidence supplied regarding Scenesse not being available on the PBS, as well as evidence from Dr Kertesz that Ms Evans cannot access the implant treatment and from Dr Wegman that she is ‘optimising’ her treatments. I am of the view that this evidence satisfies me of the treatment not being available to Ms Evans.
Despite Ms Evans current treatments, I am on the view that the evidence shows enduring impairments such as hyper-skin sensitivity and the need for thermoregulation that clearly remain and have persisted for more than 20 years.
In relation to her pelvic floor instability, depression and anxiety I am satisfied on the evidence of her general practitioner Dr Kertesz that these conditions have been medically optimally treated and are stable.
I find the impairments flowing from her diagnoses of porphyria, pelvic floor instability, depression and anxiety are permanent. I am satisfied that s 24(1)(b) of the Act is met.
Substantially Reduced Functional Capacity
Does Ms Evans have a substantially reduced functional capacity in relation to the activities in subsection 24(1)(c) of the NDIS Act?
The term ‘substantially’ in the context of ‘reduced functional capacity’ carries a significant threshold provided for by the Act that will need to be met.[21] Paragraph 24(1)(c) calls for more than ‘to simply show that functioning in the relevant area is affected’.[22]
[21] Rooney and National Disability Insurance Agency [2021] AATA 3523 at 22.
[22] Davis and National Disability Insurance Agency (2023) AATA 1437 at 65.
Communication
In the Access Request form dated 18 August 2023 Dr Kertesz wrote N/A next to the communication domain.[23]
[23] JTB, T6, 86.
The report of Mr Miszczuk indicates that Ms Evans is independent with her communication. He indicates that:
The client was warm and welcoming, with rapport easily established. Owing to reported sensitivity to light, she wore sunglasses inside. She was otherwise dressed appropriately. She was short of stature and very slight in her build. Her mood and affect was appropriately reactive. There were no deficits in communication or concentration during the 1-hour 45-minute assessment, and there was no request for breaks.[24]
[24] JTB, D1, 281.
I refer to her emails and written correspondence contained within the JTB and Exhibit 1 before me, noting that her electronic correspondence is expressive in articulating her state of mind along with her wants and needs. I also refer to the fact that she has held her part-time role for some years, satisfying me that she is able to communicate with those in the carrying out of her employment.
I am satisfied on the evidence that Ms Evans is able to express herself, and she is able to understand people, and be understood. I do acknowledge she had expressed that during flare ups and when triggered she can experience periods of functional incapacitation; however, I do not find on the evidence before me that these fluctuations reach the level of substantially reduced functional capacity within the communication domain. Accordingly on the evidence before me, I find Ms Evans does not have a substantially reduced functional capacity to undertake communication activities.
Learning
Mr Miszczuk indicates in his functional capacity assessment that Ms Evans is independent with learning.
In the Access Request form 18 August 2023 Dr Kertesz wrote N/A next to the learning domain.[25]
[25] JTB, T6, 86.
It is my view that to comprehend and remember information to engage in reading, recalling information to follow a highly compliant porphyria lifestyle and to drive a car as Ms Evans can do, confirms that Ms Evans does not require assistance in learning therefore paragraph 24(1)(c) is not met in relation to the domain of learning.
Self-management
In the Access Request form 18 August 2023 Dr Kertesz wrote N/A next to the self-management domain.[26]
[26] JTB, T6, 86.
In her email to the NDIS National Access Team dated 17 February 2024 Ms Evans states:
I am desperate for answer on my appeal. I have PORPHYIA, ALLERGY TO THE SUN AND HEAT. The heat waves we have had are affecting my health. Iv had multiple days off work. My air-conditioning has died. My electric cooling blanket has died. I need access to the NDIS to produce these items and spf clothing so I have quality of life. I’m so depressed…As I vomit from the heat and I originally applied for help in Oct last year. Please I beg you, review my case asap.[27]
[27] JTB, T14, 107.
While I acknowledge that Ms Evans porphyria affects her function, the evidence does not rise to substantially reduced functional capacity within the self-management domain.
On the evidence I am satisfied that Ms Evans does not require assistance to take her medication, she is able to organise her work and home life, she is able to independently manage her banking, independently organise her medical appointments, manage her accounts and her compliant lifestyle regarding her condition.
I am therefore satisfied that Ms Evans does not have substantially reduced functional capacity in the domain of self-management.
Socialising
The Tribunal in Madalaine referred to the description contained in the Access Guidelines that the socialisation domain as being ‘about personal skills needed for social interaction, and only marginally about opportunities to exercise those skills.’[28]
[28] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at 87.
Ms Evans presumably interacts with peers during her employment. She also lives with a housemate and sees her parents regularly. [29]
[29] Transcript – day one p3.
In the Access Request form dated 18 August 2023 under the socialising domain, Dr Kertesz wrote:
Decreased ability to interact with community due to clothing restrictions. [30]
[30] JTB, T6, 86.
Mr Miszczuk indicates in his functional capacity assessment:
Ms Evans stated, “It’s hard to maintain relationship when you can’t go outside.” She otherwise has “a few key friends” who understand the severity of her conditions…Ms Evans does not have any specific deficits with social interaction activities. Her barriers to community-based social interaction relate to her risk of acute flare ups, which are exacerbated by heat and sunlight.[31]
[31] JTB, D1, 268.
This social isolation concern is echoed in Ms Evans’ Statement of Lived Experience where she describes how she can’t meet up with friends due to her conditions and the unpredictability of her triggers.[32]
[32] JTB, C1 Applicant’s Statement of Lived Experience dated 29 March 2024 p157.
I acknowledge these are difficult circumstances, however having considered the evidence I have formed the view that Ms Evans does not meet the criteria of substantially reduced functional capacity in the socialising domain under s24(1)(c)(ii) of the Act.
Self-Care
I turn next to the issue of whether Ms Evans has substantially reduced functional capacity within the self-care domain. The Access Guidelines describes self-care as:
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.
To meet substantially reduced functional capacity in the activity of self-care there must be ‘significant gaps’ in capacity to maintain her personal health, safety and well-being. As the Tribunal explained in Madelaine in respect of the activity of self-care:[33]
Extrapolating from this provision, it may be said that 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.
[33] Madelaine at [121].
In the Access Request form dated 18 August 2023 under the self-care domain, Dr Kertesz wrote:
Requires cooling in home permanently for skin inflammation control. [34]
[34] JTB, T6, 86.
In the Part F additional notes section of the Access Request Form Dr Kertesz states:
Has constant requirement for controlled environment at home. Funding would allow her greater freedom in doing daily living activities in the home without constant regular flares of skin inflammation.[35]
[35] JTB, T6, 91.
Mr Miszczuk indicates in his functional capacity assessment that Ms Evans reported being independent and having second daily showers stating “I sit to shower. But only because of the steam.”.[36]
[36] JTB, D1, 271.
Heavier house cleaning is a task that Ms Evans explains she does not have the energy to do. Mr Miszczuk recommends that:
With appropriate task modification strategies, Ms Evans was considered to have the capacity to improve and to participate in basic cleaning tasks, which are light, easily pacable and tend to be completed at or below
waist height.
These tasks include wiping benches, sweeping, and incidental vacuuming. She could also use spray on cleaning products in the bathroom and scrub the bathroom floor tiles while sitting on the floor. This is commensurate with Ms Evans’s reported capacity to provide physical assistance to children in her care.
[37] JTB, D1, 273.
Advice around fatigue management, energy conservation, and routine planning is likely to help Ms Evans plan her cleaning and laundry tasks more efficiently, enabling her to break down chores into manageable segments, conserve energy, and maintain a cleaner living environment without overwhelming herself, thereby promoting a sense of accomplishment and well-being. Ms Evans could manage the lighter more manageable tasks, while her housemate continues to be responsible for heavier domestic tasks, with the long term allocation of tasks to be dependent on Ms Evans success with treatment and managing her symptoms. [37]
The Agency in the Statement of Facts, Issues and Contentions states in the domain of self-care that:
The report of Mateusz Miszczuk indicates that the Applicant had no reported difficulties with toileting, was independent with showering, dressing, grooming, was able to prepare meals and shop, and had the capacity to undertake domestic tasks. As the Tribunal has observed, having a substantially reduced functional capacity in the domain of self-care “imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and wellbeing”. The evidence before the Tribunal does not suggest any “gap” of that sort.[38]
[38] JTB, A1, 10.
With her grocery shopping Ms Evans explained she is restricted to getting groceries when the sunlight is not going to be as triggering. Mr Miszczuk explains in his report:
Ms Evans completes shopping online…[housemate] tends to do the pick-up. When this is not possible, Ms Evans arranges pick up at a time that is least likely to flare up her symptoms.[39]
[39] JTB, D1, 273.
Based on the totality of evidence I am satisfied that Ms Evans does not have significant gaps in her capacity to complete tasks within the activity of self-care. Having considered the evidence I am satisfied that Ms Evans does not meet the threshold of having a substantially reduced functional capacity to undertake the domain of self-care.
I note Ms Evans can arrange and drive to work, drive to access the local shops where needed and to her own medical appointments. On the evidence she is able to participate independently in appointments with her medical professionals. I am satisfied she is able to perform the tasks associated with maintaining her health needs.
I am satisfied Ms Evans is able to independently perform the tasks of personal care, hygiene, grooming, eating and drinking. I accept there are limitations in Ms Evans’ capacity due to exhaustion and triggers, however I am not satisfied on the evidence that her impairments result in a substantially reduced functional capacity in relation to the self-care activities.
Accordingly, I do not find that the threshold for substantially reduced functional capacity in self-care has been met under s24(1)(c)(v) of the Act.

Mobility

Ms Evans uses an indoor and outdoor walking stick. I am of the view that this mobility device is a commonly used item and does not enliven the deeming rule provisions.
In her Statement of Lived experience she explains that:
Yes I can drive- only early hours and the second the shops open I am there and
home again. Or I go at dusk so I can go to the chemist and shopping and home in dark, I wear sunglasses in shopping centre and SPF 50 clothing. If I drive in the sunlight to appointments, I get reflective burns on my skin, can even be vomiting while driving and incontinent bowel while driving if attack happens.
Attacks can happen and last days or weeks. I need expensive dressing for the painful skin sores from the blister burns and change twice daily. I can only drive local, if I drive longer than 30mins, I get shoulder pain, from injury to right shoulder 20yrs ago, after my hand was caught in conveyer belt and dragged my arm down and did permanent damage. I need double tint on the windows but its expensive.[40]
[40] JTB, C1, 212.
In the Access Request form dated18 August 2023 Dr Kertesz wrote under the mobility domain:
Needs special clothing for SPF control.[41]
[41] JTB, T6, 85.
During the assessment, Mr Miszczuk observed:
The applicant was observed to walk for 15 minutes without observable difficulty. This was not considered to be her maximal tolerance. The applicant’s tolerance is reportedly impacted by environmental factors.[42]
[42] JTB, D1, 284.

During the assessment, he also reported:
The applicant reported a 30-minute driving tolerance. This was reduced due to a pre-existing right shoulder injury. Her Statement of Lived Experience refers to the need for tinted windows.[43]
[43] JTB, D1, 285.
The Agency in their Statement of Facts, Issues and Contentions states within the domain of self-care that:
While it was not directly assessed, her capacity for mobilisation in the community was anticipated to be commensurate with that at home. It is also apparent the the Applicant works in the community for a number of days a week.[44]
[44] JTB, A1, 9.
I am not persuaded that the current evidence before me indicates that Ms Evans does have substantially reduced functional capacity in the mobility domain under s 24(1)(c)(iv) of the Act.
As 24(1)(c) of the Act is not satisfied, it is not necessary for me to consider paragraphs 24(1)(d) or (e) of the Act.

Early Intervention Requirements

Ms Evans meets the circumstances of permanence set out in paragraph 25(1)(a) of the Act.
Given the longstanding nature of Ms Evans conditions as Dr Kertesz has stated she requires some baseline level of supports. Therefore, I am not sufficiently persuaded that early intervention supports would build Ms Evans capacity to such an extent that it would reduce the functional impact of her impairments. The requirements of paragraph 25(1)(b) of the Act are therefore not met.
Having concluded that Ms Evans does not meet the requirements of paragraph 25(1)(b) of the Act, I am therefore not required to consider paragraphs 25(1)(c) and (d) of the Act.
Accordingly, I am not satisfied Ms Evans meets the early intervention requirements to enable her to become a participant of the NDIS under section 25 of the Act.

Conclusion

I find Ms Evans does not currently meet the disability requirements in section 24 of the Act, nor the early intervention requirements in section 25 of the Act for access to the NDIS. Therefore, the Respondent’s internal review decision dated 13 March 2024 is correct.
Having determined that Ms Evans does not currently meet the legislative requirements for NDIS access, it is open for her to reapply for NDIS access up until she turns 65 years of age.

Decision

The Tribunal affirms the decision under review pursuant to paragraph 105(a) of the Administrative Review Tribunal Act 2024 (Cth).
Date of hearing:           On the papers
Applicant’s Representative:           Self-represented
Solicitors for the Respondent:           Maddocks

[2025] ARTA 725

11 June 2025

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Judicial Review

Natural Justice & Procedural Fairness

Legitimate Expectation