FBJV and National Disability Insurance Agency - [2021] AATA 913

FBJV and National Disability Insurance Agency [2021] AATA 913 (19 April 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/6936
Re:FBJV
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:19 April 2021
Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
........................[sgd]....................................
Member W Frost
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – endometriosis causing chronic pain – whether impairments result in “substantially reduced functional capacity” to undertake any one or more specified activities – whether Applicant meets early intervention requirements – access criteria under sections 24 and 25 National Disability Insurance Scheme Act 2013 not met – decision affirmed
Legislation
Administrative Appeals Tribunal Act s 43
National Disability Insurance Scheme Act 2013 ss 3, 18, 20-21, 24-25, 28, 100, 103, 209
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Cases
Arnel and NDIA [2019] AATA 4778
Ditchfield and NDIA [2019] AATA 2121
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Howard and National Disability Insurance Agency [2019] AATA 2
James and NDIA [2019] AATA 4248
Jourfian and NDIA [2020] AATA 1883
Madelaine and NDIA [2020] AATA 4025
Mulligan v National Disability Insurance Agency [2015] FCA 544
Schwass and National Disability Insurance Agency [2019] AATA 28
Secondary Materials
Macquarie Dictionary (online at 17 March 2021)
NDIS Operational Guidelines
REASONS FOR DECISION
Member W Frost
19 April 2021
INTRODUCTION

The Applicant, FBJV, is 35 years old and lives in Eglington, near Bathurst, in New South Wales with her young family. She has long suffered from endometriosis causing chronic pain and reducing her quality of life. As a result, FBJV applied to become a participant in the National Disability Insurance Scheme (NDIS).[1]
[1] Exhibit R1, T10, page 28.
In June 2019, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) determined that FBJV did not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (NDIS Act).[2]
[2] Exhibit R1, T14, page 38.
FBJV requested an internal review by the NDIA[3] and, in October 2019, another delegate of the CEO confirmed its decision that FBJV did not satisfy the access criteria in either sections 24 (containing the disability requirements) or 25 (containing the early intervention requirements) of the NDIS Act.[4] Pursuant to section 103 of the NDIS Act, FBJV applied to Administrative Appeals Tribunal (Tribunal) for merits review of the NDIA’s decision made under section 100 of the NDIS Act.[5]
[3] Exhibit R1, T15, page 40; T16, pages 41-43.
[4] Exhibit R1, T2, pages 7-13
[5] Exhibit R1, T1, pages 1-6.
ISSUES
The Tribunal must decide whether FBJV meets the access criteria to become a participant in the NDIS.
It was common ground between the parties that FBJV meets the age and residence requirements to access the NDIS, pursuant to subsections 24(1)(a) and (b) of the NDIS Act.
Therefore, the Tribunal must determine whether FBJV meets the disability requirements in subsection 24(1)(c) or the early intervention requirements in section 25 of the NDIS Act. This requires consideration of whether:
(a)FBJV’s endometriosis causing chronic pain is, or is likely to be, permanent under subsection 24(1)(b) of the NDIS Act;
(b)the impairment has resulted in substantially reduced functional capacity to undertake relevant activities under subsection 24(1)(c) of the NDIS Act;
(c)FBJV is likely to require support under the NDIS for her lifetime under subsection 24(1)(e) of the NDIS Act; and
(d)FBJV meets the early intervention requirements in section 25 of the NDIS Act.
LEGISLATION & POLICY
The objects of the NDIS Act, set out in section 3, include to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability;
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability…
Subsection3(3) of the NDIS Act provides that, in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS and to the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the NDIS.
Under section 18 of the NDIS Act, a person may make an access request to the NDIA to become a participant in the NDIS. If a prospective participant makes an access request, under section 20 of the NDIS Act, the CEO (or here, the Tribunal) must decide whether or not that person meets the ‘access criteria’ to become a participant in the NDIS. Pursuant to subsection 28(1) of the NDIS Act, a person will be granted access to the NDIS on the day it is decided under section 20 that the person meets the access criteria.
Subsection 21(1) of the NDIS Act provides that 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 ‘disability requirements’ in section 24 of the NDIS Act are as follows:
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i)       communication;
(ii)       social interaction;
(iii)      learning;
(iv)      mobility;
(v)      self-care;
(vi)      self-management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
Alternatively to accessing the NDIS pursuant to the disability requirements under section 24 of the NDIS Act, section 25 sets out the early intervention requirements for access to the NDIS, relevantly as follows:
(1) A personmeets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Pursuant to subsection 209(1) of the NDIS Act, the Minister may by legislative instrument make rules regarding the NDIS. The rules relevant to this application are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Rules).
Additionally, an ‘Access to the NDIS Operational Guideline’(Operational Guideline) written by the CEO of the NDIA provides guidance when determining whether a person with a disability meets the access criteria to become a participant of the NDIS. The Operational Guideline represents government policy and, to the extent it is consistent with the relevant legislation, should be applied by the Tribunal unless there is good reason not to do so.[6] The Tribunal considers below in these reasons the parties’ submissions regarding whether it should apply this policy document.
EVIDENCE
Medical evidence
[6] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Dr Neil Meulman – Surgeon
Dr Meulman produced an operation report dated 14 July 2018 following FBJV’s undergoing a ‘Laparoscopy Appendicectomy’ to remove her appendix, which found ‘Nodule anterior abdominal wall of uncertain significance. A mild inflamed appendix’.[7]
[7] Exhibit R1, T4, page 15.
A related anatomical pathology report dated 13 July 2018 diagnosed FBJV with endometriosis in the appendix and stated that sections of it:[8]
show foci of endometriosis at the tip of appendix. There are benign endometrial glands surrounded by endometrial stroma in the muscle layer of appendix. There are collections of foamy macrophages in this area. Sections of the appendix are otherwise within normal limits.
[8] Exhibit R1, T3, page 14.
Dr Meulman was not called to give evidence at the hearing of this proceeding.
Professor Jason Abbott – Gynaecologist
Professor Abbott compiled a report dated 21 March 2019 following examination of FBJV and relevantly stated that she ‘has had increasing levels of pain’, noting the removal of her appendix the previous year which contained endometriosis.[9] Professor Abbott also reported that FBJV ‘had no diagnosis of pelvic endometrioses at that time’, but that she ‘has had increasing pelvic pain and pain down the back of her legs’ while noting a scan showed ‘small myomas’ with ‘no other apparent disease’.
[9] Exhibit R1, T5, pages 16-17.
FBJV reported experiencing bladder pain, painful bowel movements and bloating ‘in association with the pain in her pelvis’. Professor Abbott further reported that:[10]
On examination today the abdomen was soft and non tender…The uterus is anteverted and mobile and there are no adnexal masses. There is no induration, thickening or nodularity in the posterior compartment. The pelvic floor is normal to examination. There is no myalgia.
[FBJV] is describing downstream neuropathic symptoms that is causing her pain and she has had a response to the Lyrica…I will also arrange a deep pelvic scan to look for any other GI disease.
[10] ibid.
Professor Abbott was not called to give evidence at the hearing of this proceeding.
Dr Yamin Kasim – General Practitioner
In May 2019, FBJV provided the NDIA with a ‘Supporting Evidence Form’ completed by Dr Kasim regarding FBJV’s ‘primary impairment’, recorded as ‘chronic pain secondary to severe endometriosis (impairment with daily life)’.[11] Dr Kasim stated that FBJV had the impairment ‘since 2015’, it was likely to be lifelong and that physiotherapy ‘will be useful’.[12] In relation to functional impact, Dr Kasim recorded that FBJV needs assistance with mobility, social interaction and self-care. In relation to mobility, Dr Kasim said that FBJV has ‘chronic pain debilitating to the point that partner needs to help her get dressed’, her walking was ‘limited due to pain’ and activities of daily living were ‘limited due to pain’.[13]
[11] Exhibit R1, T8, pages 20-26.
[12] ibid., pages 22-23.
[13] ibid., page 24.
On 25 June 2019, Dr Kasim reported that FBJV:[14]
has been my client for more than 1 year now. She is suffering from endometriosis which has spread beyond her uterus to other aspects of her bowel.
Her disease is stable and permanent. She experienced chronic pain from endometriosis outside her uterus.
She got her appendix removed in 2018 and histopathology confirmed endometriosis in the appendix tissue.
She is currently being put on an analgesia regime for her pain due to chronic pain from endometriosis. She is also seeing two different gynaecologists to have her endometriosis further managed.
I hope you can help this lady as her pain exacerbation from endometriosis is extremely debilitating, causing her unable to work during the exacerbation hence loss of income. She has been given many medical certificates by myself over the last 12 months. It has severely affect her daily life and quality of life.
[14] Exhibit R1, T13, page 37.
In February 2020, Dr Kasim provided a further report regarding FBJV and stated that she had a diagnosis of endometriosis since 2007 and that:[15]
her activities of daily living have been severely affected to the point that she has been missing many days of work. She cannot sit for a prolonged period of time, she requires to use a walking stick to walk, she requires assistance with dressings. Home chores are difficult and they are usually helped by her husband – this includes cleaning, washing, cooking and shopping.
…
[FBJV] will benefit from a multi-modality treatment, especially physical therapy – rehabilitation, hydrotherapy, pelvic floor and girdle function strengthening exercises. She will also need to attend psychological intervention on regular basis to help improving her mental health. Psychological sessions will also help her cope with her pain and improve her pain to some degree.
Her conditions for her depression and anxiety are closely related to her pain secondary to endometriosis. Her endometriosis is chronic and has been found outside her pelvis. The prognosis is uncertain and is likely incurable as she has been seeing specialist for more than 10 years now. [errors in original]
[15] Exhibit A4.
Dr Kasim was not called to give evidence at the hearing of this proceeding.
Dr Valeria Lanzarone – Obstetrician Gynaecologist
On 5 June 2019, Dr Lanzarone reported to Professor Abbott following ultrasound examination of FBJV and concluded that she had a ‘[p]robable recurrence of mild Pouch of Douglas endometriosis in the absence of significant posterior compartment adhesions or deep ovarian and rectal disease’.[16]
[16] Exhibit R1, T11, page 29.
Dr Lanzarone was not called to give evidence at the hearing of this proceeding.
Ms Rebecca Kable – Physiotherapist
Ms Kable performed a ‘Functional Musculoskeletal Assessment’ on FBJV on 12 June 2019 that considered her posture, the range of motion in her joints, tested muscles and stability, balance and functioning. Ms Kable reported that FBJV experienced pain with lumbar and hip movements, plus static postures.[17]
[17] ibid., pages 32-33 and 35.
The ‘function testing’ undertaken by Ms Kable comprised FBJV performing push ups (‘6 tolerated, nil pain throughout. Fatigue ++ in the shoulders. Pain with getting up from floor’); a ‘floor to waist lift’ of 10 kilograms (‘pain ++ immediate’); work above shoulder level for ‘1.55 minute’ which led to ‘pain in the stomach and fatigue ‘+++in the arms’; stooping, which at 28 seconds brought on ‘ache on the hip ++’ and at 45 seconds there was ‘pain in the abdominal area’; at 56 seconds this task was ceased ‘due to pain’. FBJV also pushed and pulled a trolley weighing 15 kilograms which was ‘well tolerated’.[18]
[18] ibid., page 34.
Ms Kable provided the following overall comments regarding FBJV:[19]
Aggravating factors: Sitting up right, driving, sitting at desk > 40 mins at work, washing up, lifting children, folding clothes
Ease: laying down with heatpacks [emphasis in original]
[19] ibid., page 35.
Ms Kable was not called to give evidence at the hearing of this proceeding.
Dr Jason Chow – Gynaecologist, Obstetrician, Pain Medicine Physician and Laparoscopic Surgeon
On 15 February 2020, Dr Chow provided a report regarding FBJV, as follows:[20]
[20] Exhibit A2.
[FBJV] has seen me as a patient from 9 February 2018. She has the following medical conditions:
Chronic pelvic pain
Endometriosis
Low back pain
Pelvic floor dysfunction
Anxiety
Depression
[FBJV]’s conditions are chronic and are not cured by medications or surgery.
[FBJV] has had surgery for endometriosis in 2007 and 2017 under Professor Jason Abbott, with endometriosis excised. She has been on hormonal therapy, pain medications including neuropathic medications. She pursued physical therapy through the private sector due to inaccessibility of services in the public system but she can no longer afford this. She has seen psychology through Headspace up to 25 years old but cannot afford to see a psychologist privately.
[FBJV] is unable to maintain activities of daily living in her current condition. She requires a walking aid and assistance with driving, assistance with dressing. She cannot clean, wash, cook or shopping. Prolonged sitting causes pain.
[FBJV] would benefit from multidisiplinary management including:
Physiotherapy including rehabilitation, hydrotherapy and pelvic floor and girdle function
Psychology for mood, anxiety and pain management
Assistance with domestic duties
The purpose of therapy is to improve [FBJV]’s function but these do not cure her underlying conditions. Therapy listed above will:
Mitigate the impact of [FBJV]’s conditions and impairments on her functional capacity
Prevent the deterioration of functional capacity, and
Improve functional capacity.
In response to a request from FBJV’s solicitors, Dr Chow provided a supplementary report for this proceeding, which relevantly stated that:[21]
[21] Exhibit A3.
1.     How long have you treated [FBJV], and for what condition(s)?
[FBJV] first consulted me on 9 February 2018. [FBJV] has chronic pelvic pain, endometriosis, pelvic girdle and pelvic floor dysfunction, low back pain and IBS.
2.     What are the impairments experienced by [FBJV] attributable to those condition/s?
[FBJV] experiences pelvic, back, hip and vaginal pain constantly. She has daily flares in her pain. She has reduced sitting tolerance and difficulty walking. She has pain in her bladder. She experiences pain before defaecation and altered defaecation symptoms even when stools are normal. She requires sick days from work when she is unwell. She cannot be sexually active because she has pain.
3.     Please provide a treatment history for [FBJV] impairments within your area of expertise.
[FBJV] has had two laparoscopies for endometriosis, the first in 2007 and the second in 2017. She has trialled the Mirena and oral contraceptive pills. She has trialled medications including nortriptyline, duloxetine, pregabalin, NSAIDs,   tramadol, Endone, Norspan, Targin, morphine and ketamine. She has accessed all available and Medicare billing physiotherapy that is available, trialled dry needling and massage and completed online pain based education and psychology at her own cost. She is unable to access hydrotherapy with COVID. She cannot access a psychologist because of cost.
4.     Did treatment remedy [FBJV]’sdiagnoses?
Surgery and hormonal management have not remedied [FBJV]’sdiagnoses. Medications have managed but did not remedy. [FBJV]’sconditions are not "curable" but require management.
5.     How did [FBJV] respond to treatment?
[FBJV] has responded with some pain reduction to physiotherapy but can only access 4 sessions. She has not been able to access sufficient treatment frequency and duration because of cost.
6.     What were the short-and long-term goals of treatment(s)?
All long term goals (i.e. over 3 months and ongoing). Improved conditioning, sitting and exercise tolerance. Improved continued ability to remain at work at scheduled hours. Improved ability to perform activities of daily living. Reduced opioid requirements.
7.     Are you aware of any treatment which would remedy [FBJV]’simpairments? Please consider pharmaceutical and non-pharmaceutical treatment.
[FBJV] has trialled all usual pharmaceutical and non-pharmaceutical options for treatment that are available to her within cost. Given her location she has not been able to access other health care providers, including musculoskeletal, pelvic pain physiotherapy and psychology that bill by Medicare. I have advised her against surgery as I do not think that this will improve her function.
8.     Do you recommend further treatment? If so, what further treatment do you recommend? What outcomes do you expect from further treatment?
Musculoskeletal physiotherapy
Hydrotherapy
Pelvic pain physiotherapy
Pain based psychology
9.     Based on [FBJV]’sresponse to treatment, do you expect her impairments to be permanent?
Yes
10. What activities does [FBJV] experience difficulties with as a result of the impairments? Plea se provide specific examples.
See point 2.
Additionally [FBJV] is unable to walk or sit for prolonged periods of time, misses work and is unable to care for her husband or her family in a regular and predict able capacity on a daily basis.
11. In what way do [FBJV]’simpairments affect her ability to partake or complete these activities? Please include whether this affects her ability to complete activities repeatedly and regularly over a sustained period.
See point 10.
12. What assistance or support does [FBJV] usually require in undertaking these activities and from whom does she receive that support?
[FBJV] has not supports. I understand her husband has anxiety and has not been able to work in a meaningful capacity or care for the family and so [FBJV] works and cares for the family.
Future Needs
13. What is the likely trajectory and impact of [FBJV]’simpairments without and with treatment?
1.       Please consider her future support needs without treatment.
2.       Please consider her future support needs with treatment.
Without access to treatment [FBJV] will continue to decline in function. She has demonstrated a decline in her ability to maintain work with her current available supports that have been curtailed due to cost (mostly) and COVID.
14. Is it likely that early intervention treatment delivered now will reduce her future need for supports? Please explain in what specific way.
The earlier the intervention the earlier the possibility of improving [FBJV] conditioning and activity and prevent further decline in function.
15. Would provision of early intervention supports be likely to have any of the following benefits:
1. mitigating or alleviating the impact of [FBJV]’simpairments on her functional capacity to undertake communication, social interaction, learning, mobility, selfcare or self-management;
Yes
2. preventing the deterioration of such functional capacity;
Yes
3. improve such functional capacity;
Yes
4. strengthening the sustainability of informal supports available to FBJV, including through building the capacity of [FBJV]’sinformal support network.
Yes
16. Apart from the NDIS, are there other systems of support, like health or education, through which the support [FBJV] requires could be provided?
[FBJV] has tried access local services but is limited by availability and cost. This includes through GP referral, hospital and local health care providers. It is unrealistic to undertake this treatment in a metropolitan centre at a sustained duration. [emphasis and errors in original]

Dr Chow was unavailable to give evidence at the hearing of this proceeding.
Ms Demi Chapman – Exercise Physiologist
On the day before the Tribunal hearing, FBJV’s solicitors filed a report from Ms Chapman dated 15 February 2021 regarding the exercise physiology FBJV has been undertaking to manage her endometriosis. The report relevantly stated that:[22]
This condition causes [FBJV] chronic pain and fatigue that has affected her ability to complete activities of daily living. [FBJV] has reduced strength, mobility and walking tolerance, requiring a walking stick to ambulate effectively and has a wheel chair for longer distances. She has also reported nerve pain in her left leg causing significant pain and a limp in walking pattern, pain also disrupting her sleeping patterns and thus negatively affecting her energy levels further reducing her capacity for normal daily task completion.
[FBJV]’sgoals of exercise therapy to reduce pain, increase mobility, increase functional strength and capacity, increase walking tolerance and reduce the need for walking aids and overall increase her ability to complete activities of daily living for both herself and her family. [FBJV] has been completing 1x 30 min weekly hydrotherapy under my guidance since October 2020. [FBJV] is significantly more functional & mobile in water due to the reduced weightbearing effects of water. She has completed upper and lower body strengthening, mobility and gait exercises during hydrotherapy and is able to do so with reduced pain. [FBJV]’s confidence in her body’s ability to complete exercise and her overall enjoyment of exercise has improved dramatically and has had positive effects on her social and mental health and wellbeing. Proposed continued targeted exercise prescription and participation in the form of hydrotherapy and potentially building her exercise tolerance to include Pilates exercise prescription into the future. Exercise adherence will continue to positively benefit [FBJV] and her improved pain management positively carrying over to increase functional capacity and ability to complete activities of daily living.
[22] Exhibit A5.
Ms Chapman was not called to give evidence at the hearing of this proceeding.
Ms Kelly Walcot – Occupational Therapist
At the request of the NDIA, Ms Walcot provided two reports in relation to FBJV’s application for access to the NDIS. The first report was dated 24 April 2020, and was completed following an assessment of FBJV’s functional abilities at her home on 30 March 2020. That report relevantly noted that FBJV’s :[23]
performed all functional tasks requested. She frequently exhaled, sighed or moaned at completion of movements. She also appeared short of breath at times during minimal activity.
…
[FBJV] reported she has constant pain of variable intensity. She rated her pain as ranging between 4-10/10 on the visual analogue scale, where 10 is the worst pain imaginable. She reported her pain was 5-6/10 at the start of the day but was 9/10 at the conclusion of the functional assessment.
She described a stabbing pain in her ovaries, vagina and left hip, occasionally also the right hip. Pain radiates into the buttocks, back, down her left leg and up her abdomen. She has occasional less pronounced pain in the left leg. She also feels a pulling pain in the abdomen which she attributes to post-surgical adhesions. When she has a bowel movement, the adhesions pain increases dramatically.
She has bad pain 4 days out of 7.
[FBJV] completed the Pain Catastrophizing Scale (Appendix D). She scored 32, where any score over 30 is considered significant castastrophization, with the authors noting “catastrophizing not only contributes to heightened levels of pain and emotional distress, but also increases the probability that the pain condition will persist over an extended period of time”.
She also completed the Oswestry Disability Questionnaire (Appendix E), a self report of how back or lower limb pain affects everyday activity. She scored 70% - “crippled”.
She was observed to be short of breath on multiple occasions during the assessment with only minimal activity.
[23] Exhibit R2, pages 1-44.
Ms Walcot detailed the following relevant observations of FBJV’s physical tolerances based on her performance at the assessment:[24]
[24] ibid., pages 12-21.
(a)Standing – FBJV was observed standing, placing more weight on the right foot;
(b)Walking – FBJV walked with a wide base of support and minimal bending of the knees. She was able to walk across piles of clothes only occasionally holding on for support. She had a slight limp favouring the left side which became more pronounced as the assessment progressed. She did not use a walking stick for the assessment;
(c)Sitting – FBJV sat in her office chair for part of the assessment with her feet elevated on the sofa. She also sat in an upright rocking armchair for part of the assessment. She changed positions frequently. She demonstrated donning/doffing socks while seated, placing her foot on the opposite thigh to access the sock. She was able to don the sock with some difficulty and exhalation. She was able to transfer on/off chairs pushing up with her hands. She exhaled audibly when getting up. She was able to get on/off the toilet independently without holding the grabrail. She exhaled when getting up. She was able to sit in the bath, putting her weight through her arms on the sides of the bath to lower herself down. She sighed and exhaled heavily once seated. She pushed through her hands to get her feet under her, reached for the grabrail and pushed up to standing. She was able to transfer on the bed and position herself with minimal difficulty, pushing through her hands. She had more difficulty pushing up to standing, mainly through the right arm, with increased breathlessness and some unsteadiness. She demonstrated how she works in bed, sitting semi-reclined and using a tray table for her keyboard and the screen on the tallboy. When sitting down at the dining table towards the end of the assessment, she moved slowly, leaning heavily on the table with her right hand and said ‘Oh God’;
(d)Lifting/carrying – FBJV was able to lift a heavy casserole dish (approximately 5 kilograms) out of the cupboard and place it on the bench with great effort and much exhaling. She was able to carry the casserole dish approximately 10 metres slowly and with increasing limp. She was able to lift the lid of the casserole dish (approximately 2 kilograms) overhead with no difficulty. She was able to lift one of her sons (approximately 16 kilograms) and hold him on her right hip for a few seconds before putting him down again;
(e)Pushing/pulling – FBJV demonstrated pushing/pulling the upright vacuum cleaner briefly;
(f)Climbing – FBJV demonstrated getting in/out of the bath. She leant over and held the grabrail with her left hand, stepped over the side of the bath with her left foot and then the right, with no apparent difficulty. She was more tentative getting out as the floor height is lower than the bath height. She led with the right foot and held the grabrail with the left hand;
(g)Balancing – FBJV was able to stand on either foot and lean on the wall with one hand while taking the sock off with the other hand. She was breathless at the end of the procedure. She was slightly unbalanced at the conclusion of getting out of the bath when having to let go of the grabrail and resume upright independent standing. She was able to pick a broom off the floor by standing on her left foot and placing the right foot under the handle and lifting the leg until she could reach the handle with her right hand. She did not need to hold on for support;
(h)Stooping – FBJV was able to stoop from seated to pick up and put down the tray table next to the bed. She was able to stoop into the top loader washing machine. She demonstrated stooping to about knee height. She avoided stooping to pick up a broom, using her foot instead. She demonstrated stooping to bottom shelf of the cupboard, able to access a stacked dish but not the bottom pan. She twisted slightly when stooping to pick up a lid from the seat;
(i)Kneeling – FBJV was able to assume 2 point kneeling, holding heavily onto the bench and moving slowly with much exhaling. She appeared to return to standing with more ease, holding the bench and pushing through her hands and lower limbs. She breathed heavily and stood with her hands on her hips for several seconds after;
(j)Squatting – FBJV was able to semi-squat unsupported. When holding on, she was able to assume a full squat and return to standing with minimal difficulty, but exhaling on resuming standing; and
(k)Reaching – FBJV demonstrated she could reach to wash and brush her hair. She was able to reach up with both hands to the above head height clothesline with no apparent difficulty.
In relation to domestic responsibilities, FBJV reported the following to Ms Walcot:[25]
(a)she usually drives her husband PH to the shops and he does the grocery shopping;
(b)she can put the laundry in the machine. PH then hangs it out and brings it in. She folds the clothes for 15 minutes at a time then has a rest. She reported the repetitive bending causes pain;
(c)she can vacuum small areas up to a couple of times a month. She can mop for about 10 minutes once a month. She picks up after the children as needed. PH does most of the cleaning, but it is ‘put on the backburner’ due to childcare commitments. For example, PH cleaned the toilet before the assessment, while FBJV cleaned the vanity then slept. The rest of the bathroom has not been cleaned in a while;
(d)she prepares most of the food for the boys who are undergoing food therapy. They mostly eat sandwiches and have a daily supplement shake. PH makes the couple’s main meal 99% of the time. She will make a simple meal if she is feeling okay. She will sit to chop vegetables to contribute. PH does most of the washing up; and
(e)she used to be able to mow a couple of years ago but her ability has constantly declined in the last 5 years. She is disappointed as she enjoyed the activity. She last tried about a year ago but was only able to last 20 minutes as the vibrations increased pain. PH mows when he can.
[25] ibid., pages 22-23.
In relation to self-care, Ms Walcot reported that FBJV mainly has a bath independently, but on a bad day her husband will wash her back. She demonstrated climbing in and out of the bath independently; there is a horizontal rail adjacent to the bath to facilitate transfers. She is able to dry herself. FBJV also demonstrated that she could reach to wash and brush her hair. She sometimes receives assistance with dressing tasks, particularly with her bra. FBJV said she had difficulty standing to dress her lower limbs because it causes ‘pinching’ and she either sits to get dressed or gets her husband’s help. She stated she only wears tights/leggings (not fitted pants) as they are loose and she bloats. She usually manages independently by sitting and raising her feet and scrunching up the legs of the pants. She asks PH to take off her socks if she has been out, but usually wears thongs if she can. She manages her own toenails.[26]
[26] ibid., page 23.
In relation to transport, Ms Walcot reported that FBJV had been driving a manual car but using the clutch increased her pain and she had difficulty walking after driving, so the family traded it for an automatic vehicle and her left leg pain had improved. On a good day she was able to drive 40 minutes to Orange. Mostly, she limited driving to the local area. FBJV reported that they had to drive to Sydney recently and she ‘pushed through the pain’ but was in bed for the next few days and could barely walk. She continues to experience pain sitting in a car which starts at the end of the block. She does not take public transport, as prolonged sitting causes pain.[27]
[27] ibid., pages 23-24.
In her summary and recommendations, Ms Walcot stated that FBJV was observed to be ‘short of breath throughout the assessment and appeared deconditioned’ and that her ‘primary reported difficulty relates to abdominal and pelvic pain with radiation. She reported this pain also increases fatigue and impacts endurance’.[28] Ms Walcot concluded that FBJV has capacity for independent personal care and increased participation in domestic activities with the provision of equipment, education and a fitness program, specifically:[29]
(a)multidisciplinary pain management program to provide education and strategies to increase functional activity;
(b)exercise physiology to devise a fitness program and monitor progress;
(c)gym membership for the fitness program;
(d)occupational therapy to provide education on pacing and task modification and prescribe small aids (long handled sponge) and modifications (vertical grabrail adjacent the bath); and
(e)physiotherapy review in relation to need for mobility aids.
[28] ibid., page 33.
[29] ibid., page 33.
Finally, Ms Walcot also observed that FBJV’s home was ‘in a state of disarray and the grounds needed tending’. Accordingly, she suggested FBJV would benefit from lawn and garden care and home cleaning services ‘while she is improving her fitness’.[30]
[30] ibid., page 33.
Ms Walcot’s supplementary report dated 22 October 2020 responded to the NDIA’s questions regarding her comments on FBJV’s ‘deconditioning’ in the above initial report, as follows:[31]
[31] Exhibit R2, pages 45-50.
Please explain or elaborate on the meaning of the term deconditioning.
Deconditioning is a decline in function of body parts and/or systems, generally associated with a lack of use.
I note questions raised by NDIA at 3.4.7 and 3.6.7 ask if her function is “impacted in any way by deconditioning or self-limiting behaviours”.
What are causes of deconditioning:
a) generally; and
b) in relation to [FBJV] specifically.
Deconditioning is generally caused by a lack of use of the body part and/or system. For example, if a muscle is not used it becomes wasted and less efficient when it is used.
Deconditioning also generally results in increased perception of pain when the affected body part is used. Deconditioning can also present as breathlessness on exertion, usually with lower levels of exertion than would be anticipated and in the absence of a respiratory condition.
Increased fat storage may also be present in a deconditioned individual.
In [FBJV]’s case, she is spending long hours in bed and naps during the day. She did not appear to participate in any regular exercise. She uses a walking stick in the community resulting in decreased weight through the left hip and reportedly mobilises for only 10 minutes at a time. In short, she essentially leads an inactive lifestyle due to fear of pain.
This has resulted in [FBJV] becoming breathless with minimal exertion as observed at assessment. Her breathlessness is not a direct result of her endometriosis or chronic pain.
Can deconditioning be remedied or alleviated? If so, how?
a) generally; and
b) in relation to [FBJV] specifically.
Deconditioning can be remedied by a graded return to activity.
In [FBJV]’s case, she would need to gradually build up her exercise/activity tolerances. This would best be achieved with:
·multidisciplinary pain management intervention to facilitate understanding of pain and pacing techniques;
·physiotherapy/exercise physiology exercise program – starting with light activity for short duration a few times a week and gradually increasing tolerances. I defer to physiotherapist/exercise physiologist/rehabilitation physician as to the likely duration of such a program and details of the program;
·gym membership for the exercise program;
·ongoing encouragement to maintain activity, either formally or informally.
Her partner may also need education to ensure he has the knowledge to support her in the process and not provide assistance with activities within her capacity which may inadvertently undermine the exercise program. [emphasis in original]
Examination-in-chief
The NDIA called Ms Walcot to give evidence at the hearing and she confirmed that she believed the facts in her two reports were true, they contained her opinions and no corrections were required. Ms Walcot told the Tribunal that she took the video of FBJV’s assessment on her mobile telephone and provided it to the NDIA.
In relation to mobility, Ms Walcot told the Tribunal that a person at risk of falling would have a ‘very shuffling gait’, their walking would be unbalanced, they would lean on nearby furniture and look at the ground to ensure their feet are not caught on anything, avoid uneven surfaces and say they do not want to go in certain areas in case they fell. Ms Walcot questioned the clinical need for FBJV to use a walking stick and so recommended a physiotherapy assessment to determine whether there is such a need.
FBJV reported using the walking stick to take weight off her left leg which Ms Walcot assumed assists with the length of walking able to be done. However, she observed FBJV’s breathlessness and a level of deconditioning which would impact the extent to which she could walk within the community, shop, run errands, go to the post office or stand in the community, together with her need to take weight off her leg. Deconditioning was said to affect a person’s pain threshold and the level at which they begin to experience pain. Ms Walcot said the literature suggests increasing a person’s physical fitness decreases the intensity and frequency of pain symptoms and therefore recommended assessment of whether that would be of benefit.
In relation to self-care, Ms Walcot said aids she had recommended such as long-handled sponges are widely available and an occupational therapist may help with task modification; minor modifications could be progressed with home and community care programs which need an occupational therapist prescription, however people often purchase these items, such as a grabrail, independently at a hardware store.
Ms Walcot told the Tribunal that the pain catastrophising survey is used as part of the data collection process. It reflects how a person reacts to pain and what it means to them, the impact on their thought processes and resilience. In relation to the Disability Questionnaire, Ms Walcot said she could not comment on whether this was better than functional testing, but said it was a good test of a person’s perception of how their pain impacts everyday function. It is a self-report survey regarding their pain perception as part of the data collection process for her assessment; it is not a clinical diagnostic tool.
Cross-examination
Under cross-examination from FBJV’s Counsel, Ms Walcot told the Tribunal that she has been working as an occupational therapist since 1999, that is, for over 20 years. She has a Bachelor of Applied Science in Occupational Therapy and a Bachelor of Science. She acknowledged that she had no other occupations or qualifications, was not a medical doctor or a psychologist. She observes individuals and listens to self-reporting of their conditions to identify a person’s functional deficit due to physical or psychological impairments and to make an appropriate recommendation for modification. In this way, Ms Walcot agreed that she was not qualified to diagnose medical conditions or identify their cause.
Ms Walcot told the Tribunal that she attended FBJV’s home for approximately 1 hour to perform her functional assessment. Due to COVID-19, Ms Walcot undertook the functional assessment and completion of outcome measures at the home, but conducted the interview portion of her assessment later by telephone with FBJV. This interview could be done with FBJV in a seated position, the questions emanated from her letter of instruction and medical information.

Ms Walcot confirmed that FBJV scored ‘32’ on the self-assessment pain catastrophising scale which was said to be ‘significant’.
Ms Walcot also confirmed that FBJV performed all tasks she was asked to complete during her assessment. These were short functional tasks which assessed her range of movement, but also indicated what might happen on repetition of those movements. Ms Walcot conceded that FBJV was not asked to repeat the tasks because this is not generally required; during a 30 minute functional assessment Ms Walcot can observe people performing the same movements without undertaking the same task and assess whether they prefer some movements without doing a particular task repetitively. In this regard, Ms Walcot did not agree that a person reaching for the washing line constantly was different to doing it once, because over her assessment period she sees people move their bodies repeatedly doing other movements which allows her to assess their ability to repeat movements rather than having to observe them undertaking just one particular task repetitively. To this end, Ms Walcot said she could assess whether FBJV was able to hang out a load of washing having observed her range of movement during the assessment, despite not observing this particular activity in total.
Ms Walcot also acknowledged that she did not observe FBJV cooking a meal or cleaning her home, but rather saw her vacuum a portion of the home. Ms Walcot also acknowledged she did not observe FBJV attempting to get dressed and told the Tribunal that this would be ‘very inappropriate’. She also conceded that she did not observe FBJV washing herself. Ms Walcot saw FBJV walking over short distances of between 10 to 20 metres, but said that she was walking and standing for a total of 30 minutes during the assessment, with some respite, and could therefore opine about FBJV’s ability to mobilise in the community. While Ms Walcot conceded that she had not observed FBJV mobilise outside her home, her assessment saw FBJV move over level and uneven surfaces in her home such that, while acknowledging that a person has a greater level of confidence in their home, Ms Walcot believed she could opine about FBJV’s ability to mobilise on these types of surfaces in the community. Ms Walcot also said that if FBJV was accessing the shops in the community this would be familiar to her and she would therefore have confidence in doing so, although she could not comment on specific locations. Ms Walcot said she did not completely agree with the proposition that her assessment of FBJV’s ability to mobilise in the community was limited to places she accessed frequently.
Ms Walcot was taken to her second report regarding her use of the term ‘deconditioning’ and agreed that she could not identify the cause of FBJV’s deconditioning, but told the Tribunal that, given her training and experience as an occupational therapist, she could recognise deconditioning within functional activities, what may be the result of that deconditioning and how it could be improved through the therapeutic use of functional activities. Ms Walcot agreed that she could not be conclusive on the cause of FBJV’s deconditioning and potential other causes, but pointed to her chronic pain training which led her to be able to say how deconditioning impacts on a person’s functional activity. In this regard, Ms Walcot told the Tribunal that, given her training and clinical experience, she could take information from an assessment to make conclusions regarding a person’s pain perceptions and how they impact on their functional activities. Ms Walcot said she can make such an assessment when told by a person that they are avoiding activities because of pain and can make recommendations about how to improve the situation.
Ms Walcot told the Tribunal that her training as an occupational therapist goes across several knowledge bases, such as anatomy and psychology, but again agreed that she was not a trained psychologist. Her education and experience however equipped her to assess the ‘multifactorial’ impacts on a person and conclude that a person’s deconditioning can lead to heightened perceptions of pain. In this regard, Ms Walcot said she observed FBJV’s being breathless multiple times during her assessment and, due to her experience and training, could draw the conclusion that deconditioning was the cause. Ms Walcot also stated that FBJV did not report any other conditions that may have been the cause; Ms Walcot said she could not make a diagnosis or exclude other causes, but rather formed an assessment based on the information given by FBJV and her own observations. Ms Walcot told the Tribunal that her role as an occupational therapist was to understand how different medical conditions affect people’s ability to perform certain functional activities; she is able to ascertain this through her training and clinical experience and what she observes and is told at assessment and then make a conclusion. Ms Walcot noted this was not a medical diagnosis, but a conclusion based on her training and clinical experience.
Counsel referred Ms Walcot to her first report in which she stated that it was unclear if FBJV’s ‘occasional unsteadiness was of organic origin as opposed to decreased confidence’. Organic origin was said to be ‘something anatomical’. It was put to Ms Walcot that she had no clinical experience to make such a conclusion. Ms Walcot agreed that she had no medical qualification to make that conclusion, but said that the issue was not medical; she covered a lot in her 30 minute functional assessment and FBJV was predominantly walking and turning in her walking stride and moving over uneven ground and surfaces with no appearance of instability. She only referred in her report to one instance of unsteadiness she observed to which her above-mentioned statement relates.
Ms Walcot was taken to the section of her first report regarding FBJV’s ‘mobility tolerances’ and her stated opinion that these ‘are primarily impacted by pain and deconditioning’. Again, Ms Walcot conceded that, if talking about a medical area, she was not clinically qualified, but said that her assessment was based on her observations, training, experience and reporting by FBJV. In this regard, Ms Walcot could not exclude other causes of FBJV’s mobility tolerances because FBJV did not report any other diagnoses that may impact on her mobility.
Counsel spent time questioning Ms Walcot regarding her reference to a score of above 30 on the pain catastrophising scale being considered ‘significant’, noting again that FBJV scored 32 on this self-assessment. Counsel for FBJV asked where the academic paper cited by Ms Walcot referred to this level as being ‘significant’. Ms Walcot suggested her use of the term ‘significant’ equated to being a ‘clinically relevant level of catastrophising’ as set out in the paper on the scale referenced in her report. That is, the score was above that of the normal population and should be addressed. Ms Walcot said ‘significant’ can be replaced by ‘clinically relevant’; this is how Ms Walcot uses the term.
Re-examination
In re-examination, Ms Walcot confirmed that a score of ‘30’ on the pain catastrophising scale corresponded to 75% on a bell curve, which is the point above the ‘normal range’. That is, a score above 30 was considered to be outside the normal population’s experience; it is clinically relevant, needs to be addressed and can be improved by therapeutics.
The Tribunal was further told that a score for FBJV above 30 indicated that her pain catastrophising will impact her participation in everyday activities and needs attention, such as the recommended pain management program. For example, chronic pain and psychological components may explain why a person is not undertaking activities. Ms Walcot could not recall FBJV ‘strictly declining’ to do something because of pain or anticipation of pain however, for example, FBJV said her husband puts the clothes in the washing machine when asked to demonstrate reaching into the machine and when FBJV was asked to grab kitchen pots down low she replied that she does not usually do so and was reluctant to perform this requested task. However, once Ms Walcot explained to FBJV that kneeling and crouching were functional movements she had to observe her performing to the extent possible, she performed these movements.
Ms Walcot confirmed that the oral component of her assessment of FBJV was completed by telephone within 1 to 2 weeks after the physical assessment at her home.
Ms Walcot was asked by Counsel for the NDIA what other matters she considered in her assessment when not observing repetition of a particular task. Ms Walcot relied on FBJV’s self-report, documentation provided prior to her assessment, FBJV’s completion of outcome measures, widely available information, together with her training and clinical experience. This was demonstrated in the two columns in her report listing what Ms Walcot had observed and what was reported to her by FBJV.
In relation to hanging out clothes on the washing line, FBJV told Ms Walcot that she can do it once but the repetition of the movement meant that she does not undertake this task. Ms Walcot’s report was referred to in which it was noted that FBJV reported [r]epetitive reaching to the clothesline and in the frontal plane is difficult. She gets abdominal pain after 10-15 mins’.[32]
[32] Exhibit R2, page 20.
In relation to mobility, Ms Walcot told the Tribunal that her functional assessment looked at a person’s ability to walk over level and uneven surfaces, their ability to change directions, their balance on changing directions, standing and the ability to move from sitting to standing. This captured mobility in isolation but also during functional tasks such as pushing and pulling a vacuum cleaner, which requires standing and balance. As a result, Ms Walcot said because FBJV was mobilising throughout the whole assessment and performed mobility tasks during that time she was able to extrapolate about FBJV’s mobility in the community.
Finally, Ms Walcot confirmed the array of documentation that was available to her regarding FBJV’s impairment prior to, and at the time of, her assessment. She also noted the extensive training she has undertaken regarding pain, including in relation to the physiological and psychological response to pain and treatment options and specific training on chronic pain.
Lay evidence
FBJV
FBJV provided a Statement of Lived Experience in this proceeding, which stated in part that:[33]
[33] Exhibit A1.
The pain can be around 8-9/10. Its hard to quantify as I live with it every day, it doesn’t go anywhere.
A standard day is maybe 4/10, that’s really like my zero. There is always some sort of pain, usually a dull cramping sort in my abdomen. If I do any activity then it goes up from there.
I get flare ups that are sharp, intense and radiate from the abdomen up to my hips. It’s almost like I feel my bones in my pelvis and hip and feel where the pain is. Then it radiates down to my leg. The flare ups are so often per day I can’t really say how many I have. I have bad pain everyday but with the flare ups, I spend the majority of the day in bed.
Triggers are standing, or any activity or movement. I know need to move, not moving can make pain worse but sometimes stuffed if you do or stuffed if you don’t. It’s a matter of how important of an activity. I will try hold the kids but won’t walk with them. If my son is upset and runs off, he needs to be picked up, mum things like that have to take priority but it’ll cause me pain and I will need to rest. I won’t even be able to that for much longer as they’re getting so big.
After something like the OT assessment [Kelly Walcott OT Report 24 April 2020], I was in so much pain because I had to do so much. It was a 9-10/10 pain day. I would never do that much activity in a day and the assessment was only around 1-1.5 hours. I was exhausted and in great pain for 2 days; my whole left-side went numb, I was in bed for couple of days. If it wasn’t because of being in the height of COVID-19 I would have gone to hospital for pain relief.
…
I used to work in bed and use my laptop. But I have recently purchased a new desk chair and ensure that I get up every half hour to prevent pain. I need regular movement. I work seven hours, but I spilt it up and rest. I couldn’t work more than 3 hours in a row without rest.
Usually take at least one out of three days per week off. Effectively I am working two days per week.
I had to reduce my days because I was taking so much leave. I got to the point where being at work was so uncomfortable and painful that I discussed with my boss what other things I could try. I kept going for as long as possible because we weren’t sure we could afford going part time.
…
The pregnancy stirred everything up, I never got better after that. It affects every part of our family’s life. [errors in original]
Examination-in-chief
FBJV gave evidence to the Tribunal at the hearing and confirmed adherence to her statement, although she noted that she was now 35 years old and her condition had deteriorated. In this regard, FBJV told the Tribunal that ‘everything’ had been exacerbated and ‘gotten worse’. For example, FBJV’S pain was said to now be ‘much worse’, including in her leg and hip, and she has been hospitalised a few times for pain relief. Additionally, FBJV said she could not walk ‘as far as before’ and undertakes tasks for a shorter amount of time. Fatigue was said to be ‘one of the worst symptoms’, together with pain, which affect her cognitive ability and communication.
FBJV told the Tribunal that ‘sitting up for work’ at a computer was difficult (she has been working from home since before the COVID-19 pandemic) and she has taken days off work as a result of her impairment. FBJV works three days a week for 7 hours each day as a Spatial Information Officer for the New South Wales Government. Fatigue impeded FBJV day-to-day life such as her interactions with her children. FBJV said she ‘can’t fight the tiredness’ and needs a daily nap, usually in the afternoon.
FBJV undertakes ‘limited’ chores because she cannot bend and pick up items. She is now washing up for ‘less time’ and ‘can’t scrub anything’, which causes ‘instant pain’. Additionally, walking for ‘extended periods of time’ brings on leg pain within the first 10 minutes while using her walking stick.
Cross-examination
By way of cross-examination, FBJV told the Tribunal that she now has a new desk and chair at home for work, following a self-assessment, and that she has an agreement with her workplace to work from home, in addition to contributing to maintaining low numbers of attendees at the office due to COVID-19.
FBJV’s sons are now in Year 1 at primary school and receive assistance through its support unit. One son has been diagnosed with ADHD, with her other son being ‘more complicated’. Both children are NDIS participants; they are challenging, demand to be with their parents and have ‘high separation anxiety’; her husband is their full-time carer, receiving a Carers’ Pension for this role. There is no respite care for PH and FBJV under their children’s NDIS plans because they would not be able to cope with another person due to their separation anxiety issues.
FBJV has one dog, but her husband does the feeding and other required tasks.
FBJV confirmed that she was clinically diagnosed with endometriosis at 15 years old and this was when ‘all the symptoms started’. The Tribunal was told that FBJV has endometriosis in her bowel, bladder and pouch of Douglas behind the uterus. Endometriosis was also found when her appendix was removed. FBJV said that she may have endometriosis near or around a sciatic nerve, but this could not be confirmed without surgery.
FBJV was referred to Dr Abbott’s report and asked about the subsequent scans undertaken by Dr Lanzarone in 2019. FBJV described her legions as ‘shallow’ and she said it was highly doubtful the lesions ‘have gone completely in those areas’.
Following her last surgery in relation to endometriosis in 2017, FBJV commenced seeing Dr Chow in February 2018 but after her assessment by Dr Abbott in 2019, Dr Chow did not order any further scans or testing; he was focused on pain because surgery was ‘a last resort’.
FBJV told the Tribunal that she recalled having seen Dr Chow up to 5 times and had no other regular consultations. She has been trying to get into a pain clinic and has been doing 30 minutes hydrotherapy each week with an exercise physiologist and acupuncture with her general practitioner, Dr Kasim, both since October 2020.
Dr Kasim deals with FBJV’s medication and she has regular contact with him. She is not currently taking any antidepressants and is now on Lyrica and Tapentadol for pain relief, which she said was ‘not particularly’ better and ‘about the same’.
FBJV said she did not think the hydrotherapy had yet reduced her pain; she enjoys being in the pool, but said ‘I can’t live in the pool’. She experiences ‘a bit of relief’ for a day or two, but it was not substantial. FBJV felt mentally better to be out moving and having a commitment and now had an enjoyment of exercise and was more confident in what her body could do. However, FBJV also agreed with Counsel for the NDIA that the hydrotherapy was nice while she was in the pool, but that was the extent of it.
FBJV told the Tribunal that she would still score ‘about the same’ if completing another pain catastrophising questionnaire such as that she did for Ms Walcot in March 2020. Counsel put to FBJV that earlier in her evidence she had said ‘everything’ was worse, but she had also said during the course of that evidence that her symptoms were ‘about the same’. In this regard, FBJV said that her pain was more frequent, her leg was ‘worse’ and she ‘can’t go as far’.
FBJV agreed that a pain level of 4 out of 10 was a ‘baseline’; it did not last beyond a few hours, she could get ‘flare ups’ and then a reduction. That is, her pain level fluctuated throughout any day. FBJV described her pain level as being ‘alright’ at the commencement of her functional assessment with Ms Walcot in March 2020, but at the end it was ‘very, very bad’ and she went to bed immediately afterwards.
FBJV confirmed to the Tribunal that she had done everything she had been asked to do in the assessment and that she was mostly standing or walking around during that time.
Counsel for the NDIA asked FBJV about shopping and she confirmed that she is able to do the groceries, being ‘small shops’. Her husband does the bulk of the shopping, but FBJV drives him to the shops. FBJV said she can use the stairs when shopping but uses the ramp when it is easier. When FBJV is out of the house she uses a walking stick; she walks at the shops for about 30 minutes and then rests on a chair (before they were removed in the shopping centre due to COVID-19) or leans on a trolley. FBJV can carry light bags if they are balanced on both sides of her body but not for a long period of time. She can lift the groceries into the trolley to take them to the car.
In relation to the laundry, FBJV’s husband does the washing because it involves ‘a lot’ of bending and lifting. FBJV agreed that she demonstrated during the functional assessment an ability to put clothes in the washing machine. In addition, FBJV said she could hang out the washing but it would not take long for her to ‘wear out’. Folding washing is manageable if FBJV takes breaks; this task is done sitting down and she takes her time.
PH and FBJV focus on the ‘main areas’ when cleaning their house and ‘do what we can’. For instance, she cleans the vanity in the bathroom and her husband cleans the toilet. PH does the cleaning when their children are at school. FBJV said she can vacuum a small part of a room by pushing the cleaner backward and forward a short distance.
FBJV told the Tribunal that she can ‘make a simple meal’ where she did not have to be on her feet to ‘stand and watch’ the whole time while it cooked on the stove. She chops vegetables sitting down. If required, FBJV can bend down or reach up to retrieve saucepans; she holds onto the bench so as to reduce the pressure on her abdomen.

In relation to mowing, FBJV said she tries occasionally but it was ‘never a good idea’ because the walking and vibration affects her condition. FBJV has a raised garden bed in the backyard where she grows herbs.
FBJV told the Tribunal that walking for an extended period of time was a problem; she could walk for ‘half an hour, maybe an hour, tops’ if wandering around the shops and stopping constantly. However, she could go no more than ‘a block’ on a normal walk.
For self-care, FBJV agreed that she could get in and out of the bath, she holds on to the sides and a grabrail and her husband is ‘pretty much always’ present because she is worried about falling. The bath is ‘out of commission’ and she is currently showering, which is ‘easy to get in and out of’, but ‘takes a lot out of me’ because she is standing. In this regard, FBJV said that she planned on purchasing a stool for the shower. FBJV bathes their children, but FBJV occasionally helps with drying them.
In terms of dressing, FBJV sits down to do so and wears tights exclusively because they are loose fitting around her waist. Putting on underwear and pants is ‘tricky’ because of the pain caused when lifting and bending her leg; her husband assists with this task, although she had changed the way she removed pants to lessen the pain. On a ‘bad day’ FBJV required help putting on her bra because she cannot reach behind due to her muscles. She had tried not wearing one, but this caused overheating from sweat.
FBJV agreed with Counsel for the NDIA that she can toilet, brush and wash her hair, clean her teeth and cut her nails.
FBJV wears thongs on her feet ‘99% of the time’. She acknowledged there were obstacles on the floor of the house and had fallen ‘a few times’; her children ‘need to clear a pathway’ for her to walk and sometimes she cannot lift her legs as high as required. However FBJV had not considered alternate footwear because she ‘didn’t think it was an option’. FBJV said she does not use a walking stick at home unless she is in ‘a lot of pain’.
FBJV was asked again about her evidence in examination-in-chief that everything was a lot worse since the occupational therapist assessment in March 2020 and asked whether she had considered making a new Statement of Lived Experience or procuring an alternate occupational therapist report. FBJV replied that she thought about it, but this was ‘not really possible’ and the COVID-19 pandemic had made that difficult and she was unaware of her NDIS application process.
Counsel for the NDIA asked FBJV whether she disagreed with the occupational therapist report. She responded that it had been some time since she had read that document but there were ‘some things’ however could not identify them. In this regard, FBJV said she had discussed her husband making a written statement in support of her application and that she did not know why this was not done. FBJV confirmed that her husband was a full-time carer for their children and that the division of labour in the household was ‘always that way’, but the ‘sicker I got the more responsibilities he took on’.
FBJV told the Tribunal that she took ‘extra leave’ from work when her condition became worse. This was unpaid leave and she had completed timesheets with this information and obtained doctors’ certificates, but she confirmed there was no evidence of leave taken that was filed in this proceeding. In this regard, the Tribunal did not, contrary to the NDIA’s request during cross-examination, compel FBJV to produce such timesheets, however it noted that it was open for those documents to be provided by FBJV during or after the hearing. No such timesheets have been received by the Tribunal.
Counsel for the NDIA played to the Tribunal the video taken of the assessment of FBJV at her home performed by Ms Walcot in March 2020 which contributed to her subsequent report. Following the playing of the video, Counsel continued her cross-examination of FBJV and asked whether Dr Chow had done anything like such an assessment of what she can and cannot do. FBJV said when she first saw Dr Chow ‘a couple of years ago’ she went through reach and movement exercises. Their first appointment was said to be longer than the 15 minutes she stipulated in her Statement of Lived Experience, but she acknowledged by the time she reached Sydney for those appointments she was ‘very’ exhausted. FBJV said Dr Chow was asked to give evidence at the hearing but was ‘unavailable’. FBJV confirmed that reference in Dr Chow’s First Report to physical therapy was to physiotherapy she attended before her children were born and that ‘Headspace’ was the bulk billed youth mental health service and accessible by her only up until 25 years of age.
Counsel for the NDIA took FBJV through elements of what it said were inconsistencies in Dr Chow’s Report in relation to her functional ability and asked FBJV to confirm the true position. FBJV told the Tribunal that she used a walking aid outside of the house to lessen her pain, but does not use it in the house; she can drive unassisted and did not know what Dr Chow meant when he said she could not, but perhaps it was reference to the requirement to swap their manual vehicle for an automatic car; she ‘sometimes’ needed assistance dressing; she can clean but not ‘without significant pain’; she can wash herself, but she cannot do the dishes for long; her ability to cook is ‘limited’, but she prepares simple meals; she can also shop, although this was also said to be ‘limited’.
FBJV could not recall whether she consulted with Dr Chow for his letter of February 2020 and also was ‘not 100% certain’ whether she had attended Dr Kasim 3 days later with Dr Chow’s letter, but did not think so. Counsel referred to Dr Kasim’s letter which stated that FBJV ‘requires walking stick’ and she told the Tribunal that she was advised the stick ‘would help me walk further and it does’; it is a ‘mobility aid’ and she has ‘no idea if it’s required’ because she is not a ‘medical person’. Counsel asked whether FBJV told Dr Kasim she needed a walking stick and she replied that they had discussed it ‘quite a few times before I got it’, she had a fall at the shopping centre and decided to get one.
In relation to Dr Chow’s Supplementary Report, Counsel referred to him reporting that she could not access hydrotherapy or physiotherapy. FBJV said she was ‘on the waiting list’ for hydrotherapy, but the hospital had stopped this due to COVID-19. Hydrotherapy would have been bulk billed and she could access 4 bulk billed sessions of physiotherapy. FBJV said she was not on any public waiting list for further physiotherapy or hydrotherapy and was now ‘happy’ attending her exercise physiologist for hydrotherapy. However, FBJV is ‘waiting to hear back’ regarding access to a pain management clinic. FBJV also confirmed that she did not understand Dr Chow’s comments about her caring for the family in circumstances where her husband had the majority of the caring role. FBJV further said that Dr Chow had ‘never mentioned’ early intervention supports and it was not a term she had heard before this proceeding.
In relation to her mobility, Counsel put to FBJV that her reference in her Statement of Lived Experience to having to ‘grab something’ around the house was not what was exhibited on the video of the occupational therapist assessment where she walked freely through the home. FBJV agreed.
FBJV said that a physiotherapist had recommended she use a walking stick, not Ms Kable. There was no documentary evidence before the Tribunal from this physiotherapist.
Re-examination
FBJV’s Counsel referred her to the video played to the Tribunal of the functional assessment and asked why she had exhaled in the way she did when she put on her socks. FBJV said that she was in pain and that she wears thongs as much as possible because she can slip them on and off and does not have to bend over as she would with shoes. In this regard, FBJV told the Tribunal that she only wears socks for approximately one month a year in the ‘dead of winter’ and when she needs to put shoes on to go outside, which is not very often.
FBJV said she also exhaled when she was sitting on her bed and reached for the work keyboard because she was ‘super sore’ after having bent over to pick the object up off the floor. FBJV described getting ‘short, stabbing pains’ in her abdomen and shooting pains down her leg and said it would have been worse had she done this movement a second time.
FBJV also described it being ‘incredibly painful’ lifting the heavy cooking pot from the cupboard during the assessment and her being ‘wiped out’ for the rest of the assessment. FBJV said if she was asked to repeat this movement, she would have refused because it ‘hurt so much’. FBJV told the Tribunal that she would not have been able to cook a meal, she went to bed following the end of the assessment, took painkillers and slept. FBJV said she was in ‘worse’ pain upon waking and would have attended hospital if not for the COVID-19 pandemic.
CONTENTIONS
FBJV
FBJV submitted that, pursuant to subsection 24(1)(b) of the NDIS Act, her endometriosis and related chronic pain results in an impairment that is, or is likely to be, permanent, in that there are no known, available and appropriate evidence-based clinical medical or other treatments that would be likely to remedy that impairment. FBJV further submitted that her impairment is permanent notwithstanding that certain therapies may assist in improving her functional capacity.
In relation to subsection 24(1)(c) of the NDIS Act, it was contended that FBJV has substantially reduced functional capacity for mobility as she cannot effectively or completely mobilise inside and outside her home and a substantial reduction in her functional capacity for self-care.
Additionally, in relation to subsection 24(1)(e) of the NDIS Act, FBJV submitted that she is likely to require support under the NDIS for her lifetime due to the permanency of her impairment, including access to allied health services and therapies, assistance with household management, assistance with self-care and assistance to access the community which cannot be provided by other mainstream services.
In relation to the early intervention requirements under section 25 of the NDIS Act, FBJV contended that her impairment is permanent, access to appropriate early intervention supports will reduce her future needs so as to have a significant impact on the course taken by that impairment, these supports would accordingly benefit FBJV and they are most appropriately funded by the NDIS.
NDIA
The NDIA contended that the permanency criteria in section 24 of the NDIS Act is not satisfied with respect to FBJV endometriosis because the medical evidence does not support a conclusion that suggested therapies would not substantially relieve the condition.
While the NDIA conceded that the evidence suggests FBJV has some reduction in functional capacity in the areas of mobility and self-care, it submitted that this reduction does not rise to the level demonstrating a substantial reduction in functional capacity as required by subsection 24(1)(c) of the NDIS Act.
Given the above contentions, the NDIA submitted that while FBJV may require some support, including through health or mainstream services, it cannot be found that she requires the support of the NDIA for her lifetime pursuant to subsection 24(1)(e) of the NDIS Act.
In relation to the early intervention requirements under section 25 of the NDIS Act, the NDIA contended that FBJV does not meet the criteria regarding permanency, reducing future need for support, improving capacity or the NDIS being the most appropriate support system.
CONSIDERATION
The disability requirements
The Tribunal must be satisfied that FBJV meets all the requirements specified in subsections 24(1)(a) to (e) of the NDIS Act in order to conclude that she meets the disability requirements for access to the NDIS.[34] For the avoidance of doubt, the Tribunal is satisfied, and the NDIA does not dispute, that FBJV meets the criteria in subsections 24(1)(a) and (d) of the NDIS Act, being that she has a disability attributable to a physical impairment and this impairment affects her capacity for social or economic participation. Accordingly, the remaining issues in contention to be determined by the Tribunal in relation to section 24 of the NDIS are whether:
(a)FBJV’s endometriosis causing chronic pain is, or is likely to be, permanent pursuant to subsection 24(1)(b) of the NDIS Act;
(b)the impairment has resulted in substantially reduced functional capacity to undertake relevant activities under subsection 24(1)(c) of the NDIS Act; and
(c)FBJV is likely to require support under the NDIS for her lifetime under subsection 24(1)(e) of the NDIS Act.
[34] Howard and National Disability Insurance Agency [2019] AATA 2 at [25].
Does FBJV have a permanent impairment?
A person meets the disability requirement criterion under subsection 24(1)(b) of the NDIS Act if the ‘impairment or impairments are, or are likely to be, permanent’. Subsection 24(2) of the NDIS Act further notes that ‘an impairment that varies in intensity may be permanent’.
The Rules provide the following guidance in considering when an impairment is, or is likely to be, permanent:
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.
The Operational Guideline provides the following guidance for assessing permanency:
8.2 When is an impairment permanent or likely to be permanent?
The NDIA must be satisfied that a prospective participant's impairment/s are, or are likely to be, permanent (i.e. likely to be lifelong) (section 24(1)(b)).
The following principles provide guidance:
·an impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence based treatments that would be likely to remedy (i.e. cure or substantially relieve) the impairment (rule 5.4 of the Becoming a Participant Rules);
·an impairment that varies in intensity (for example, because the impairment is of a chronic episodic nature) may be permanent despite the variation (section 24(2));
·an impairment may be permanent notwithstanding that the severity of its impact on the functional impact of the person may fluctuate or potentially improve (rule 5.5 of the Becoming a Participant Rules);
·an impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its likely permanency to be demonstrated (rule 5.6 of the Becoming a Participant Rules).
·In this context, an impairment may be permanent notwithstanding that it may continue to be treated and reviewed after its permanency, or likely permanency, has been medically demonstrated; and
·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 (rule 5.7 of the Becoming a Participant Rules).
If a prospective participant has multiple impairments, the NDIA will consider each impairment separately and determine whether each impairment is, or is likely to be permanent. However, the NDIA only needs to be satisfied that at least one of a prospective participant's impairments are, or are likely to be permanent.
Where there is a possibility of medical treatment (such as surgery) to treat the prospective participant's condition, and the treatment has some prospect of success, the NDIA should not conclude that the impairment is permanent but should wait until the outcome of the treatment is known (Mulligan and NDIA [2015] AATA 974 at [71]). [emphasis in original]
FBJV submitted that the Tribunal should not apply the Operational Guideline, which is a policy document of the NDIA, specifically the term ‘substantially relieve’ in relation to whether an impairment is likely to be remedied by any known, available and appropriate evidence based treatments and in the assessment of its permanence under subsection 24(1)(b) of the NDIS Act. FBJV contended that the Tribunal is not bound to follow the Operational Guideline in circumstances where it is not a legislative instrument. She said a good reason not to follow the Operational Guideline was because the use of ‘substantially relieve’ does not reflect, and is contrary to, the statutory criteria to be applied. In this regard, subsection 24(1)(b) of the NDIS Act refers to a person meeting the disability requirements if ‘the impairment or impairments are, or are likely to be, permanent’. FBJV contended that the Rules do not refer to the concept of substantial relief and that paragraph 5.5 expressly provides that an impairment may be permanent notwithstanding that its severity may improve, therefore expressly contemplating substantial relief, but that this does not detract from its permanence. Therefore, it was submitted, the word ‘remedy’ in preceding paragraph 5.4 must be construed as a reference to ‘curing’ the condition, not ‘relieving’ the condition. The Tribunal was referred to the case of Arnel and NDIA [2019] AATA 4778 (Arnel), where the Tribunal accepted the unchallenged medical evidence that the prospective participant’s impairment was ‘permanent with no possibility of cure’, causing severe disability and remaining with her for the rest of her life. It was submitted that this is the way the word ‘remedy’ has been interpreted and applied by the Tribunal.
The Tribunal is not satisfied that the evidence supports a finding that the permanency criterion is met in relation to FBJV’s impairment. Under the Rules, an impairment is permanent ‘only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment’ [emphasis added]. While the word ‘remedy’ can include ‘cure’, the Rules do not require that the treatments would be likely to ‘cure’ the impairment. In this regard, the word ‘remedy’ should be given its ordinary everyday meaning. The Macquarie Dictionary relevantly defines ‘remedy’ to mean ‘something that cures or relieves a disease or bodily disorder; a healing medicine, application, or treatment’ [emphasis added].[35] For completeness, the Tribunal notes that ‘relieve’ is defined to mean ‘to ease or alleviate (pain, distress, anxiety, need, etc.).’[36] Accordingly, an impairment is ‘permanent’, or likely to be permanent, for the purpose of determining access to the NDIS, when there is no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to cure or relieve the impairment. This necessarily includes easing the impact or effects of the impairment. As a result, the Tribunal finds that the use of the term ‘substantially relieve’ in the Operational Guideline is not inconsistent with the term ‘remedy’ used in the Rules in relation to establishing the permanence of an impairment and should therefore be applied as contemplated in Drake. Based on the evidence in this proceeding, the Tribunal is not satisfied there are no known, available and evidence-based treatments that would not substantially relieve the effects of FBJV’S impairment.
[35] Macquarie Dictionary, (online at 17 March 2021), ‘remedy’.
[36] ibid.

As a result, pursuant to the Rules and the Operational Guideline, the Tribunal is satisfied that FBJV is able to participate effectively in the activity of mobilising herself, including in the community. The evidence also establishes that FBJV can mobilise effectively without assistive technology or equipment, other than commonly used items such as her walking stick. In this regard, and for the reasons outlined above in the Tribunal’s consideration of this limb, based on the evidence before it, the Tribunal finds that FBJV does not ‘usually’ require the assistance of other people to mobilise. For these reasons, the Tribunal finds that FBJV does not have a substantially reduced functional capacity to mobilise due to her impairment.
Self-care
Based on the available evidence, the Tribunal is not satisfied that FBJV’s impairment results in ‘substantially reduced functional capacity’ to undertake activities involving self-care pursuant to subsection 24(1)(c)(v) of the NDIS Act.
In her Statement of Lived Experience, FBJV made the following points with respect to self-care:[65]
[65] Exhibit A1 at paragraphs 75-88.
Endo impact[s] on how I get dressed because it dictates the types of clothing I chose.
Bending and lifting legs at same time to get dressed is hard. I can really hurt myself even sitting. When you’re living with pain it can be made worse by doing even a normal movement. Usually I get PH to help with getting dressed and with putting on stuff lower down i.e. pants and underwear.
Usually I don’t bother with bras, I stopped years ago. If I am wearing one PH usually has to help. I only wear wireless so it’s less pressure on my chest.
I always wear tights because they are elastic wasted and don’t put too much pressure on my stomach which causes a lot of pain. I used to live in jeans but can’t wear them anymore. The clothing has to be light fabric. When I’m in pain my temperature goes up and causes me to sweat. I get sweaty a lot. In winter I don’t really feel the cold because I am always really hot.
I pretty much only wear thongs that I can slip on and off.
I keep my hair short, its all shaved because of sweat. It gets gross pretty quick.
Activities like bath and toileting cause pain because they are using your core. I rarely use the shower due to standing. The heat of the bath is assistive, it helps soothe pain at least while I’m in it. Heat doesn’t last long, once you get out it stops working. Showering and bathing is exhausting and I am very tired and very sore afterwards.
PH does all the yard work but he is time poor because of other high needs care he does. I can’t do mowing at all because of the combination of vibration and walking. It’s pretty much overgrown all the time.
For our family PH does all the laundry, cooking and cleaning. For things like hanging clothes, I might be able to do initially as one off, so long as basket was waist height and there was no bending. I couldn’t do it for long because of the lifting and a lot of movement. I avoid this activity as it triggers pain.
I can’t do the cleaning either. I might be able to clear a surface of clutter and quickly wipe but then I would need couple of hours to sleep as I’d be really sore after that. The scrubbing motion doesn’t do me any good.
Most of the time try get PH to the vacuuming do but if he has too much other stuff to do, I can only try do small area, like part of the lounge due to the motion backwards and forwards, it makes my leg cramp and exacerbates pain.
PH prepares all the food. I can only do simples meal i.e. microwave something or something that’s not too long on stove and doesn't need stirring so I’m not standing there.
Probably once a fortnight I sit at the dining table to chop and peel vegetables. I can do tasks longer when sitting than standing. If I did do a full stew’s worth like the OT said [Kelly Walcott OT Report 24 April 2020] I then wouldn’t be able to actually cook the stew. PH does the rest and I go to bed and go to sleep for couple hours. I’d need to take some breakthrough medication.
I do the groceries occasionally, not often, less than once per month. If I do the shopping, PH carries them inside. It’s only a small one meal sort of shop, nothing too involved. I am only lifting from the trolley to car and not walking with any of it due to the pain. By the time I get home, I am limping in incredible pain. It takes ages to do it because I walk so slowly. I am done after this. I have to rest for quite a while. I come home, take meds and go to bed for rest of day. It takes a 5-6 hour sleep or rest after to recover.
Ms Walcot, the occupational therapist, responded in the following terms to the NDIA’s questions regarding FBJV’s self-care based on her in-home assessment of FBJV:[66]
[66] ibid., pages 30-32.
Is [FBJV] able to manage her own self-care? If not, why not?
[FBJV] is able to perform most personal care independently. Her husband provides occasional assistance with transfers, washing her back and dressing tasks.
What type and level of assistance (if any) does [FBJV] need to support her to effectively manage self-care tasks? What does this support involve? (if aids/devices are used, specify)
Her husband provides occasional hands on assistance with transfers, washing her back and dressing.
There is a grabrail next to the toilet which she does not need to use. She uses the horizontal grabrail next to the bath to assist with transfers.
In my opinion, she could be independent with provision of equipment (long handled sponge), task modification (consistently sitting to dress) and minor modifications (additional vertical grabrail to further facilitate bath transfers).
Does [FBJV] currently receive this support? If so, who currently provides this support?
Her husband provides occasional hands on support. She mostly sits to dress and has modified her clothing choices to maximise independence.
Will these supports, or any others you may recommend, likely reduce [FBJV]’s future disability specific support needs? If so, how?
Provision of equipment, education on task modification and additional grabrail should facilitate independence in personal care.
Is [FBJV]’s function impacted in any way by deconditioning or self-limiting behaviours that could be addressed by rehabilitation or others intervention designed to increase function and independence? If so, please identify what body parts/regions are involve, what tasks are likely impacted, what intervention may address this and your clinical reasoning behind this recommendation.
Yes. As noted above, she was frequently breathless. It is unclear if her occasional unsteadiness was of organic origin as opposed to decreased confidence. Provision of fitness program as noted above, plus advice on pacing and task modification and provision of equipment should facilitate sustained independence. [emphasis in original]
Ms Walcot provided a table of different activities performed by FBJV, Ms Walcot’s observations of that performance and FBJV’S reported ability in relation to each one. This table contained five levels of functionality ranging from independent to unable (and not assessed). After ‘independent’, the next level was ‘independent with equipment or modified technique’, followed by ‘assisted’ and then ‘dependent’. Ms Walcot ascribed the level of ‘independent with equipment or modified technique’ to FBJV’s undertaking standing, walking, sitting, pushing/pulling, climbing and kneeling.[67] FBJV was assessed by Ms Walcot as ‘independent’ in relation to, among other things, lifting/carrying, balancing, stooping, squatting, reaching and handling.[68]
[67] Exhibit R2, pages 12-18.
[68] ibid., pages 15-21.
While the evidence indicates that FBJV has some reduction in functional capacity in her self-care, the Tribunal finds for the following reasons that this reduction does not amount to a substantial reduction in FBJV’s functional capacity.
The evidence demonstrates that FBJV can shower and bathe herself, although her husband attends when she gets out of the bath to ensure she does not fall, she dresses herself, albeit in a modified manner, and she can feed, toilet and groom herself independently. Accessing the showering was said to be easy, but standing for any length can be exhausting and FBJV said she is intending on purchasing a stool to sit. Additionally, FBJV can prepare simple meals for her and the family, she can hang washing on the line and fold it while seated. While FBJV does have a reduced functional capacity, the Tribunal finds that this does not amount to the requisite substantial reduction.
In relation to the medical evidence, Dr Chow’s written evidence was, in parts, inconsistent and wrong. For instance, he stated, contrary to FBJV’s own testimony to the Tribunal, that she ‘cannot clean, wash, cook or shopping’ and that she is ‘unable to care for her husband or her family in a regular and predictable capacity on a daily basis’. However, Dr Chow also stated in his report that FBJV has no support because ‘her husband has anxiety and has not been able to work in a meaningful capacity or care for the family and so FBJV works and cares for the family’. Dr Kasim’s written evidence, comprising one page and having been produced three days after Dr Chow’s first written report in February 2020, largely repeats the written evidence of Dr Chow and provides limited detail in relation to FBJV’s capacity for self-care or other matters. Dr Kasim says that FBJV requires assistance with dressing and finds home chores ‘difficult’, which are ‘usually helped by her husband’, including cleaning washing, cooking and shopping. However, there is no description in Dr Kasim’s report of the extent or frequency of this assistance and the level of reduced functional capacity for self-care as a result of FBJV’s impairment.
While the assessment by the physiotherapist, Ms Kable, detailed various ‘functional deficits’ of FBJV, it was not indicated how or to what extent those deficits substantially reduce FBJV’s ability for self-care. As detailed above in relation to mobility, Ms Kable’s report looked at matters such as limb function, posture, range of movement and balance, but did not explain the relevance of that information in the form of a ‘practical assessment of what a person can and cannot do’ as emphasised in Mulligan. In the overall comments section, Ms Kable described aggravating factors including ‘washing up’ and ‘folding clothes’ but there was no ascription of the level of reduced functionality on FBJV’s self-care as a result of her impairment. Additionally, there was further space for Ms Kable to comment on the outcome of her assessment against each area of FBJV’s ‘assessed functional deficit’ to explain the impact of the functional deficits but regrettably no such comments were provided and Ms Kable was not called to give evidence in this proceeding to be asked about her report. Despite FBJV’s contention, the Tribunal is not satisfied that Ms Kable’s report was a detailed functional assessment said, in Mulligan, to be ‘so important’ in order to determine the impact of a person’s impairment on their functional capacity.
The occupational therapist, Ms Walcot, was the only such professional to assess FBJV. The Tribunal accepts and prefers Ms Walcot’s evidence in relation to FBJV’s functional capacity. Ms Walcot’s detailed report went directly to the question of FBJV’s functional capacity. Ms Walcot was also the only person, aside from FBJV herself, to provide oral evidence to the Tribunal at the hearing and therefore able to be examined regarding her assessment of FBJV. Based on her assessment, Ms Walcot concluded that FBJV can perform most personal care independently, and for those she cannot, she can achieve independence through the provision of commonly used aids (such as a long handled sponge), education on task modification, including sitting to dress and wearing loose fitting clothing, and minor modifications like an additional vertical grabrail to help facilitate bath transfers. In this regard, FBJV on a ‘bad day’ requires her husband to wash her back while bathing, she has some difficulty putting on and removing a bra when dressing, sometimes needs his assistance with this task, but otherwise sits to dress and calls on her husband to attend when she exits the bath to ensure she does not fall.
FBJV referred to Arnel, in which it was found that the applicant’s use of a shower hose, quickly washing herself and getting out of the shower is not participation in self-care, either effectively or completely, as contemplated by paragraph 5.8 of the Rules. The Tribunal also considered that applicant’s inability to effectively or completely wash her ‘private areas is captured by the language used in that Rule’.[69] However, FBJV told the Tribunal that she usually uses the bath and occasionally has the assistance of her husband to wash her back. At the moment, the bath is not able to be used and FBJV has been showering. The Tribunal was not told that there was any issue with showering, except that FBJV became tired due to standing and said that she would purchase a stool to address this issue.
[69] Arnel at [79].
The Operational Guideline states that self-care involves activities ‘related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs’. 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’.[70] For the foregoing reasons, the Tribunal finds that FBJV does not have a substantially reduced functional capacity for self-care. On the evidence before the Tribunal, while FBJV occasionally requires assistance for some self-care activities, she can largely perform all activities of self-care independently and there are no significant gaps in her capacity to do so. In this way, the Tribunal finds that, while FBJV cannot ‘completely’ participate in the activity of self-care, she can ‘effectively’ do so, thus satisfying the requirement in paragraph 5.8(a) of the Rules.
[70] At [121].
For these reasons, and the avoidance of doubt, based on the evidence set out above in relation to self-care and the above consideration of this limb, the Tribunal is not satisfied that FBJV ‘usually’ requires the assistance of another person to participate in self-care activities or to perform tasks or actions required to undertake or participate in the self-care activity pursuant to paragraph 5.8(b) of the Rules. That is, the evidence before the Tribunal was that FBJV can perform, with modifications for some tasks, all of the self-care activities listed in the Operational Guideline, including personal care, hygiene, grooming and feeding herself, showering, bathing, dressing and toileting and only occasionally has assistance with a few tasks. FBJV works three days per week, her husband is their children’s full-time carer and undertakes the bulk of domestic duties, noting also that FBJV can, if required, perform tasks, as detailed by Ms Walcot.
The Tribunal notes that FBJV’s husband did not give evidence to the Tribunal. Such evidence would likely have provided another primary source of information regarding the level of assistance required by FBJV in undertaking self-care and mobility activities.
In conclusion, the Tribunal is not satisfied the evidence before it supports a finding that FBJV’s impairment results in a ‘substantially reduced functional capacity’ to undertake either mobility or self-care activities as required to satisfy subsection 24(1)(c) of the NDIS Act.
Is FBJV likely to require support under the NDIS for her lifetime?
The Rules do not expressly address consideration of whether a person is likely to require support under the NDIS for their lifetime, however the Operational Guideline states the following regarding the lifetime NDIS support criterion:
8.5 When is a person likely to require support under the NDIS for their lifetime?
The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(1)(e)).
If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person's lifetime, despite the variation (section 24(2)).
The NDIA is required to consider a prospective participant’s overall circumstances and conclude that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and NDIA [2015] AATA 974 at [153]).
For example, if a person's support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.
When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person's lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]–[150]). [emphasis in original]
As set out above in this decision, the Tribunal has found that, pursuant to subsection 24(1)(b) and (c) of the NDIS Act, FBJV’s impairment is not ‘permanent’ and does not result in her having ‘substantially reduced functional capacity’ to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care or self-management. As a result of those findings and the conjunctive nature of subsection 24(1) of the NDIS Act, it follows, and the Tribunal is satisfied, that FBJV is not likely to require support under the NDIS for her lifetime pursuant to subsection 24(1)(e) of the NDIS Act. This does not discount the fact that FBJV requires support in relation to her impairment from other support services.
The early intervention requirements
The early intervention requirements contained in section 25 of the NDIS Act are set out above in these reasons. The Rules set out the following regarding early intervention for a prospective participant in the NDIS:
Deciding whether provision of early intervention supports is likely to benefit the person
6.8 Where paragraph 6.2(a) applies to a person, the main way in which the CEO can determine whether the provision of early intervention supports is likely to benefit the person in the ways set out in paragraphs 6.2(b) [reducing future need for support] and (c) [improving capacity] above is to consider evidence going to those matters, as indicated in paragraph 6.9 below. However, young children who have an impairment resulting in developmental delay (see paragraph 6.10) or resulting from a particular condition (see paragraph 6.11) will not need to provide further evidence of the matters in paragraphs 6.2(b) and (c).
Where evidence is required
6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) [reducing future need for support] and (c) [improving capacity] above, it is expected that the CEO would consider:
(a) the likely trajectory and impact of the person's impairment over time; and following:
(b) the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion. [emphasis in original]

The Operational Guideline provides guidance on assessing the reducing future need for support and improving capacity criteria, as follows:
9.3 Determining whether early intervention supports are likely to benefit the person
The NDIA must be satisfied that the provision of early intervention supports (except for children with developmental delay) is likely to benefit the prospective participant by:
·reducing the person's future needs for supports in relation to disability (section 25(1)(b)); and
·achieving one or more of the following four outcomes:
i. mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake one or more activities (section 25(1)(c)(i)); or
ii. preventing the deterioration of such functional capacity (section 25(1)(c)(ii));
iii. improving such functional capacity (section 25(1)(c)(iii); or
iv. strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer (section 25(1)(c)(iv)).
When considering whether the provision of early intervention supports is likely to benefit the person, the NDIA should consider:
·the likely trajectory and impact of the person's impairment over time (rule 6.9(a) of the Becoming a Participant Rules); and
·the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports (rule 6.9(b) of the Becoming a Participant Rules); and
·evidence from a range of sources, such as information provided by the prospective participant or their family members or carers. The NDIA may also in some cases seek expert opinion (rule 6.9(c) of the Becoming a Participant Rules).
When considering if a person is likely to benefit from early intervention supports, the NDIA may consider factors such as the time elapsed since the onset or diagnosis of the disability and whether there has been a recent, or impending, significant change in the person's impairment or disability. [emphasis in original]
Does FBJV have a permanent impairment?
Subsection 25(1)(a)(i) of the NDIS Act relevantly provides that a person meets the early intervention requirements if the person has one or more identified physical impairments that ‘are, or are likely to be, permanent’.
In Mulligan, the Federal Court referred to the Productivity Commission report that led to the establishment of the NDIS and which relevantly stated in relation to early intervention that people receiving support through the NDIS should have a disability that is, or is likely to be, permanent and are ‘in an early intervention group, comprising individuals for whom there is good evidence that the intervention is safe, significantly improves outcomes and is cost effective’.[71]
[71] Mulligan at [54].
In James and NDIA [2019] AATA 4248, the Tribunal said that:[72]
The objective of early intervention support is expressed to be to ‘lower the costs and impacts’ associated with the disability for individuals and the wider community over the longer term. Accordingly the early intervention requirements look at the likely trajectory and impact of a person’s impairment over time and the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity.
[72] James at [55].
FBJV’s impairment of endometriosis with associated chronic pain was diagnosed when she was 15, shortly after she began to suffer its effects. This diagnosis was made 20 years ago. It cannot therefore be said that the impairment is in its early trajectory.
However, for the reasons set out above in this decision, the Tribunal has found that FBJV’s impairment of endometriosis with chronic pain is not ‘permanent’ pursuant to the terms of section 24 of the NDIS Act. That finding, and the associated reasoning, applies equally to the Tribunal’s consideration and determination of FBJV’s application in relation to the permanency requirement under section 25 of the NDIS Act in relation to early intervention. As a result, the Tribunal is not satisfied that FBJV meets the requisite permanency criterion in subsection 25(1)(a)(i) of the NDIS Act and, due to the conjunctive nature of subsection 25(1), she cannot meet the early intervention requirements under the NDIS Act and her application for such access is accordingly unsuccessful. Therefore, the Tribunal is not required to consider whether FBJV meets the further criteria for early intervention under subsections 25(1)(b), (c) and 25(3) of the NDIS Act.
CONCLUSION
The Tribunal acknowledges that, due to her endometriosis, FBJV suffers from a disability that is painful and impacts her life and that of her family; she described her difficulties and capacities with candour and in detail to the Tribunal.
However, while FBJV’s endometriosis has been described as uncurable, chronic and permanent by her medical practitioners in reports provided to the Tribunal in this proceeding, ultimately the Tribunal has found on the totality of the evidence before it that FBJV’s disability is not ‘permanent’ under the terms of the NDIS Act.
In circumstances where the Tribunal has found that FBJV meets neither the disability requirements in section 24 of the NDIS Act nor the early intervention requirements in section 25 of the NDIS Act, she does not at this time meet the access criteria under section 21 of the NDIS Act to become a participant in the NDIS.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 175 (one hundred and seventy-five) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

................................[sgd].......................................
Associate
Dated: 19 April 2021

Date(s) of hearing:

17-18 February 2021

Date final submissions received:

Counsel for Applicant:

18 December 2020

Ms Shipra Chordia

Solicitor for Applicant:

Counsel for Respondent:

Ms Dominique Brown, Legal Aid NSW

Ms Prue Bindon

Solicitor for Respondent:

Ms Renee Watt, NDIA

Date(s) of hearing:	17-18 February 2021
Date final submissions received: Counsel for Applicant:	18 December 2020 Ms Shipra Chordia
Solicitor for Applicant: Counsel for Respondent:	Ms Dominique Brown, Legal Aid NSW Ms Prue Bindon
Solicitor for Respondent:	Ms Renee Watt, NDIA