Francis and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1341 (6 August 2025)
Applicant/s: Rebecca Francis
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2023/7106
Tribunal: Senior Member A Clues
Place:Hobart
Date: 6 August 2025
Decision:The Tribunal affirms the decision under review.
Senior Member A Clues
Catchwords
National Disability Insurance Scheme – becoming a participant – access request – whether Applicant meets the access criteria – whether Applicant meets the disability requirement – whether Applicant has a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or has one or more impairments to which a psychosocial disability is attributable – whether impairments are, or are likely to be, permanent – whether impairment or impairments result in substantially reduced functional capacity – disability requirements not satisfied – early intervention requirements not satisfied – reviewable decision affirmed
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth)Cases
Beezley v Repatriation Commission [2015] FCAFC 165; 150 ALD 11
Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607
Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577
Foster and National Disability Insurance Agency [2025] ARTA 718
HPSC and National Disability Insurance Agency [2021] AATA 727
Mulligan and National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002National Disability Insurance Agency v Foster [2023] FCAFC 11; (2023) 295 FCR 521
Secondary Materials
Applying to the NDIS, operational policy, dated 10 December 2024
Statement of Reasons
The Applicant is a 39-year-old female. She lives with her husband (a self-employed builder) and her two sons aged 9 and 11 years. On 27 September 2023, the Applicant lodged with the Tribunal an application for review[1] of a decision made by the National Disability Insurance Agency (NDIA) dated 6 September 2023 (the internal review decision).[2] The internal review decision was made pursuant to section 100(6) of the National Disability Insurance Scheme Act 2013(Cth) (NDIS Act). It affirmed an earlier decision dated 21 June 2023 that the Applicant did not meet the disability requirements under section 24 of the NDIS Act, nor the early intervention requirements under section 25 of the NDIS Act and therefore did not meet the access criteria set out in section 21 of the NDIS Act.[3] As a result, the Applicant was refused access to become a participant in the National Disability Insurance Scheme (NDIS).
[1] JHB 33-38.
[2] JHB 48-63.
[3] JHB 170-176.
The decision under review
In the internal review decision, the Respondent determined that the Applicant met the age and residence requirements but not the disability and early intervention requirements for access to the NDIS. With respect to the disability requirements, the Respondent was satisfied that the Applicant lived with a disability that is attributable to physical, cognitive and psychosocial impairments (section 25(1)(a)) but was not satisfied that these impairments are or are likely to be permanent (section 25(1)(b)). Further the Respondent was not satisfied that these impairments resulted in substantially reduced functional capacity in any of the life activity areas specified in section 24(1)(c), or that it affected her capacity for social or economic participation specified in section 24(1)(d), or that she was likely to require lifetime support on the NDIS as specified in section 24(1)(e). With respect to the early intervention requirements, the Respondent was not satisfied that the Applicant’s impairments were permanent as specified in section 25(1)(a).
The role of the Tribunal
In conducting this review, the Tribunal has to reach its own conclusion as to whether the Respondent was correct in concluding that the Applicant does not meet the disability or early intervention requirements for access to the NDIS.[4] The Tribunal must be positively satisfied that a prospective participant meets the access criteria for the NDIS.[5] Neither party has a formal onus of proof, but the Applicant does bear the practical onus of providing evidence to the Tribunal to persuade it that each of the access criteria are met.[6]
[4] Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577 at 589.
[6] Beezley v Repatriation Commission [2015] FCAFC 165; 150 ALD 11 at [68]
The hearing and the evidence
At the hearing, the parties tendered in evidence by consent a Joint Hearing Bundle (JHB) pages 1 – 511. On behalf of the Applicant oral evidence was given by the Applicant, her mother, her husband, Dr Banjade (general medicine physician) and Dr Neil (cardiologist and cardiac imaging specialist). On behalf of the Respondent evidence was given by Ms Warner (occupational therapist). Both parties were represented by counsel; Mr Bilboe for the Applicant and Ms Davey for the Respondent.
The applicable law
On 3 October 2024, the NDIS Act was amended by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)(the amending Act). Schedule 1, items 19 to 27 introduced changes to the disability and early intervention requirements. However, by operation of item 126 of the schedule those changes apply only to an access request made after 3 October 2024. The Applicant made her access request on 16 March 2023[7], so these changes are inapplicable in this case. Item 126 of the amending Act also provides that the NDIS Rules as they were in force prior to 3 October 2024 continue to apply to an access request made prior to that date. This independent review will therefore apply the disability and early intervention requirements as they stood prior to 3 October 2024.[8]
[7] JHB 117-144.
[8] Burrows and CEO National Disability Insurance Agency [2025] ARTA 607 (‘Burrows’) at [8].
Eligibility for the NDIS
Access to the NDIS, and the supports, funding and autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities.[9] It is not intended to support every person with disability in Australia. As stated by Senior Member French in Foster and National Disability Insurance Agency [2025] ARTA 718 (Foster) at [18]:
To be eligible for access the NDIS, a prospective participant must satisfy an age requirement, a residence requirement, and either a disability requirement or early intervention requirement. The broad purpose of these access criteria is to impose some restrictions on who can access funding for supports available under the NDIS. These requirements are specified in the NDIS Act and the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) (the Becoming a Participant Rules). The Agency has also developed operational policy to assist in its administration of the NDIS. While policy is not formally binding on the Tribunal, as the Act and the Rules are, they represent government policy which should be applied unless there is a cogent reason not to do so. The operational policy applicable in this case is called “Applying to the NDIS- pre legislative amendments” (footnotes omitted).
The issues to be determined
There is no dispute, and the Tribunal so finds, that the Applicant satisfies the age and residence requirements of the NDIS Act.
The issues before the Tribunal are whether the Applicant satisfies:
·the disability requirements (section 24).
·the early intervention requirements (section 25)
The disability requirements-applicable law
The disability requirement for access to the NDIS is found in s 24 of the NDIS Act and Part 5 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) (Becoming a Participant Rules). Section 24 (as in force prior to 3 October 2024) provided:
Disability requirements
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self-care;
(vi) self-management; and
(d) the impairment or impairments affect the person’s capacity for social and economic participation; and
(e) the person is likely to require supports 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 supports under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require supports under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
When is an impairment permanent or likely to be permanent for the disability requirements?
Rules 5.4 to 5.7 of the Becoming a Participant Rules deal with the question of when an impairment is permanent or likely to be permanent for the disability requirement. Those Rules provide:
5.4 An impairment is, or is likely to be, 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.
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.
Rule 5.8 deals with the question of when an impairment results in a substantially reduced functional capacity to undertake a specified activity. That rule provides:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care or self-management …-if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participant in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
In the recent decision of Foster, Senior Member French referred to the decision of Mulligan[10] and stated:
…unlike the overall structure of s 24(1), the internal structure of s 24(1)(c) is disjunctive. That is, it is only necessary for the Applicant to establish that he experiences substantially reduced functional capacity in one life activity area to satisfy this disability requirement.
[10] at [56].
Section 24(1)(a): Does the Applicant have a disability attributable to impairment?
Section 24(1)(a) requires the Applicant to establish that she has a ‘disability’ that is attributable to one or more intellectual, cognitive, neurological or physical impairments, or one or more impairments to which a psychosocial disability is attributable.
As stated by Mortimer J (as she then was) in National Disability Insurance Agency v Davis [2022] FCA 1002 (‘Davis’) at [51]:
The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which …is generally understood as involving the loss of or damage to a physical, sensory or mental function.
The term ‘impairment’ is not defined in the NDIS Act. However, the Agency’s operational guidelines define it to mean “a loss of or damage to your body’s function.”
The concept of impairment is distinct from the concept of ‘disability,’ and from a diagnosed health condition. Care needs to be taken not to conflate these separate concepts or use them interchangeably. Failure to maintain this conceptual distinction may lead to a misapplication of the access provisions.[11]
[11] Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607 (‘Burrows’), [24].
Specifically with respect to s 24(1)(a), as the Court observed in Davis, it is necessary to identify and describe with precision the impairment to which a prospective participant’s disability is attributable, because the access criteria contained in ss 24(1)(b) to (d) require evaluation of the permanency and impact of that impairment on the prospective participant’s functional capacity and social and economic participation.[12]
[12] Burrows at [26].
The Applicant seeks access to the NDIS on the basis of impairments attributable to the Pfizer novel coronavirus COVID-19 vaccination and subsequent COVID-19 diagnoses, including:
(a)Myocarditis.
(b)Pericarditis.
(c)Postural orthostatic tachycardia syndrome (POTS).
(d)Exertional dyspnoea.
(e)Long COVID.
(f)Anxiety and Depression.[13]
[13] JHB 18.
For the purposes of section 24(1)(a) of the Act, the Respondent accepts the Applicant has:
a)physical impairments arising from POTS and Long Covid;
b)cognitive impairment arising from Long Covid; and
c)psychosocial impairments arising from (Generalised Anxiety Disorder) GAD with experiences of depressive episodes.
The Respondent contends that the Applicant does not have any impairments arising out of pericarditis or myocarditis on the basis that:
a)In April 2023, Dr Touma, cardiologist, recorded that:
· the Applicant possibly had pericarditis around September 2021, based solely on clinical description without any objective evidence;
· in about June 2022, a cardiac MRI was consistent with a prior history of myocarditis but not active myocarditis;
· the Applicant likely had myocarditis in the past; and
· the pain was unlikely due to current active pericarditis or myocarditis.
b)In March 2024, in response to targeted questions from the Respondent, Dr Touma recorded that:
· the Applicant has a prior history of pericarditis and myocarditis, and the pericarditis improved with colchicine as far back as September 2021.[14]
[14] JHB 5.
20.The legislation requires the decision maker to consider the concept ofimpairment rather than conditions or diagnoses. As stated by Mortimer J in Davis at [69].
What the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced – by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.
21.In a report dated 28 April 2023, Dr Touma says:
My best explanation for [the Applicant]'s symptoms is chronic pain as part of a long
Covid syndrome and postural orthostatic tachycardia which is also documented in
long Covid. Patients typically make a full recovery from pericarditis and myocarditis. There is usually no long-term loss of amenities of life, loss of expectation of life, and /or disfigurement after pericarditis and myocarditis, especially with normal left ventricular systolic function and normal serum cardiac biomarkers.
(i) pericarditis and myocarditis usually require a period of rest and
limitation of vigorous physical activity. Up to 3 months of physical
activity limitation is required, especially for myocarditis. Any physical
component to [the Applicant]'s work, especially anything that will raise
her heart rate significantly (greater than 100 bpm), should be
avoided. With myocarditis, I typically assess left ventricular systolic
function at 1 month, 6 months and then annually or as symptoms
would suggest (clinical signs of heart failure such as pulmonary
oedema or peripheral oedema).
(ii) I am unable to estimate the duration that [the Applicant] will
experience chronic pain as I believe this is part of a long Covid
syndrome, rather than acute myocarditis or pericarditis.
(iii) I believe the pain is part of a long Covid syndrome. The initial
restrictions after acute pericarditis and myocarditis are usually up to 3
months. The ongoing restriction in activity is due to postural
orthostatic tachycardia syndrome and pain is part of the long Covid syndrome.[15]
[15] JHB 161.
22.This evidence is supported by the reports prepared by Dr Dui (cardiologist). He last saw the Applicant on 7 October 2022. She then consulted a different cardiologist, Dr Touma. In Dr Dui’s report dated 7 October 2022, he says:
[The Applicant] has Long CoVID with ongoing easy fatigue, exertional dyspnoea, and chest pain on background of peri-myocarditis managed on Colchicine. She may continue to adjust her Colchicine doses to control her chest pain and can be gradually weaned off over three months as tolerated…Much of her symptoms with ongoing easy fatigue and dyspnoea are likely related to long CoVID and related psychosocial stress. Her previous echocardiogram and cardiac MRI have both showed well-preserved left ventricular function. It is therefore most appropriate for her to continue her general rehabilitation program for long CoVID…rather than a cardiac rehabilitation program.[16]
[16] JHB 105.
23.Dr Neil (cardiologist) gave oral evidence. He said he only saw the Applicant on one occasion at a telehealth appointment. In his report dated 18 November 2024, he did not provide any diagnosis of the Applicant’s condition. He recommended that the Applicant undergo a number of tests and follow-ups. He said in his evidence that his treatment journey with the Applicant had only just started and there were a number of other tests and treatment options that he would like her to undergo and try. He said that his diagnostic inclination was that the Applicant suffered from myopericarditis with POTS and long Covid. It is the Tribunal’s view that Dr Neil did not make a considered diagnosis and where his opinion differs to that of Dr Touma, the Tribunal prefers the evidence of Dr Touma.
24.The Tribunal finds that the Applicant does not currently suffer active myocarditis, pericarditis or myopericarditis. She does suffer from long Covid and Postural Orthostatic Tachycardia Syndrome (POTS). As a result of suffering from POTS, the Applicant’s heart rate can be disproportionately elevated and remain elevated.[17]
[17] JHB 305.
25.The evidence from the Applicant’s treating psychologist Dr Anthony in her report dated 16 February 2024[18] is that the Applicant meets the criteria for Generalised Anxiety Disorder (GAD) with experiences of depressive episodes. This diagnosis is accepted by the Applicant, the Respondent and the Tribunal.
[18] JHB 296.
26.The Tribunal finds that the Applicant currently suffers with the following health conditions:
· Postural orthostatic tachycardia syndrome (POTS).
· Exertional dyspnoea.
· Long COVID.
· Anxiety and Depression.
27.The Tribunal must determine for the purposes of section 24(1)(a) what impairments, if any the Applicant has as a result of these conditions.
28.The Applying to the NDIS, operational policy[19] states as follows:
[19] Dated 10 December 2024.
When we think about your disability, we look at whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment. An impairment is a loss of or damage to your body’s function. We’ll look at:
• your body’s functions
• your body structure
• how you think and learn
To meet the disability requirements, we must have evidence your disability is linked to at least one of the impairments below:
• intellectual – how you speak and listen, read and write, solve problems, and process and remember information
• cognitive – how you think, learn new things, use judgment to make decisions, and pay attention
• neurological – how your body’s nervous system functions,
• sensory – how you see or hear• physical – the ability to move parts of your body
You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and tasks due to your mental health.
29.Based on the Applicant’s statements of lived experience[20] and her oral evidence, as well as the medical evidence, the Tribunal finds that for the purpose of section 24(1)(a), the Applicant has the following impairments:
a) physical - exhaustion, fatigue, shortness of breath, dizziness, chest pain.
b) cognitive - brain fog, poor short-term memory, difficulty concentrating.
c) psychosocial - anxiousness and depressive episodes.
[20] JHB 166-169 and 298-300.
The Tribunal also finds that the Applicant has some disability attributable to these impairments.
Section 24(1)(b): Are these impairments permanent?
The Respondent accepts that the Applicant’s psychosocial impairments arising out of GAD with depressive episodes, are or are likely to be permanent for the purposes of section 24(1)(b).[21] The Respondent does not accept that the Applicant’s other impairments are permanent.
[21] JHB 5.
The Respondent contends that the Applicant’s physical and cognitive impairments are not permanent because she does not satisfy rules 5.4 and 5.6 of the Becoming a Participant Rules. That is, the Respondent contends that there are known, available evidence based medical or other treatments that would be likely to remedy the impairments; or the Applicant’s impairments require medical treatment or review before a determination can be made about whether the impairments are permanent.
Despite making these submissions, the Respondent does not identify any evidence in support. The Respondent points to evidence from Dr Touma and Dr Banjade indicating that her impairments had improved as a result of taking Ivabradine and were being well managed at the time. The Respondent contends:
There is no recent evidence that indicates the Applicant’s impairments arising out of POTS are not well managed. Accordingly, the Tribunal cannot be satisfied that any impairments arising out of POTS are permanent.
As at 5 May 2024, the Applicant was attending a specialist Long Covid clinic known as Clinic Nineteen. The evidence before the Tribunal does not indicate whether the Applicant is participating in any particular program at Clinic Nineteen and, if so, the length of that program and the outcomes of any program. This leaves open the question of whether the Applicant has exhausted all available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairments arising out of Long Covid
The evidence before the Tribunal is that the Applicant’s fatigue and functional limitations “are likely to persist at least in the immediate to medium term is which could be years”.[22] Further, that “pacing and slowing down help fatigue that is associated with LONG Covid and is likely to aid recovery”, the Applicant has tried “different medications” and [the Applicant] has made small improvements over the last two years”.[23] Dr McBurnie stated that recovery is likely within 12 months for some individuals, however there is a cohort who have persistent severe symptoms that limit function beyond 12 months.[24] This evidence suggests that the Applicant’s impairments arising out of long Covid may improve. Accordingly, the impairments arising out of Long Covid cannot, at this stage, be considered permanent.[25]
[22] JHB 306.
[23] JHB 306.
[24] JHB 45.
[25] JHB 6.
It is the Tribunal’s view that these submissions do not support a finding that the Applicant’s physical and cognitive impairments are not permanent. The Respondent contends that the Applicant has not exhausted all available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the Applicants physical or cognitive impairments, but it has not specified the treatment or treatments that it contends should have been attempted by the Applicant but were not. Without knowing what these treatments are, the Tribunal is unable to consider, as it is required to do, whether these treatments are ‘known, appropriate and available’ or if further assessment is required before an impairment could be considered permanent.[26]
[26] Burrows at [51].
Dr Carter, the Applicant’s GP (for 13 years), completed the treating professional part of the Access Request form on 16 March 2023. In the additional notes part of that form, she says:
[The Applicant] has been severely disabled by this vaccine – injury.
She has been fully stabilised and is not going to improve.
She was a motivated, active, hard-working mother-who is devastated by this disability. The family is in crisis with her not being able to perform even basic duties for her family.[27]
[27] JHB 140.
Dr McBurnie states in her report dated 28 August 2023 that prior to having the Pfizer vaccination for COVID on 6 September 2021, the Applicant was working full-time, had two children one of whom has a disability and has assistance via the NDIS, was exercising 1½ hours 5 to 6 days a week, socialising regularly and taking the children to activities. After the vaccination, she developed chest pain and breathlessness. She had Covid in April 2022 and after that she suffered an increase in chest pain, breathlessness, fatigue and tachycardia.[28] At present she is unable to work as she would not be able to do any of the duties reliably or productively. All mental and physical activity is exhausting. She spends most of the day in bed.[29] Dr McBurnie says the Applicant is unable to work at present because of long Covid syndrome causing chronic fatigue, cognitive impairment (brain fog) and postural orthostatic tachycardia syndrome (POTS).[30] She says there is no specific treatment for Long Covid; it is a new condition that is not well understood. The current evidence suggests that most people do appear eventually to get better. However, in a small cohort symptoms have persisted.[31]
[28] JHB 43
[29] JHB 45.
[30] JHB 46.
[31] JHB 44-45.
Dr Touma says in his report dated 21 March 2024 that the Applicant took the medication that he recommended. He did a trial course of colchicine medication, but in the absence of objective evidence that she suffered current active myocarditis or pericarditis, he felt the benefit of long-term colchicine use was not warranted. He has been treating the Applicant with ivabradine 7.5 mg twice daily with reasonable effect on limiting her symptoms. He feels the constellation of chest discomfort and tachycardia fits with a long Covid syndrome. He recommended that the Applicant be managed in a long Covid clinic as this was outside his area of expertise. He concludes his report by stating it is difficult for him to provide a prognosis given there is little known about the long Covid clinical entity.[32]
[32] JHB 304.
Dr Neil only saw the Applicant on one occasion via a Zoom appointment. In his very brief report dated 18 November 2024 he recommended that the Applicant do some tests and follow-ups and continue with her current medication regimen. He discussed the potential use of hydroxychloroquine and prednisolone. The Applicant gave evidence that Dr Neil told her this medication may reduce her pain but would not assist her functionality. She said that in the past she had suffered gastrointestinal issues that she felt may have been aggravated by this medication, so she did not explore it further. She also said that she has not felt well enough to do the tests and follow-ups he recommended. Given that she had already seen two cardiologists prior to Dr Neil, and she had followed the treatment and taken the medication they had recommended, the Tribunal considers it is reasonable that she decided not to pursue a third opinion from Dr Neil.
The Applicant did attend a long covid clinic as recommended by Dr Touma. At that clinic she saw Dr Banjade. In the report from Dr Banjade, dated 28 May 2024, she says that the Applicant:
… has tried medications for long COVID which include Naltrexone, Nicotine patches, Ivabradine, and antihistamines which have made some improvement in her levels of fatigue. There is no cure for long COVID. These medications help manage symptoms. The medications have improved her fatigue to some extent that she can participate in a slightly more meaningful way with her kids. She is still unable to fully carry out household tasks or be employed in any capacity.[33]
[33] JHB 305.
Dr Banjade goes on to say:
Future of patients with long COVID is unknown. We have tried different medications for [the Applicant] some of which have worked to some extent. Her abilities may improve over time especially if new therapies become available for LONG Covid. Sometimes this may improve over time. She has made small improvements in the last two years.
Her fatigue and functional limitations are however likely to persist at least in the immediate to medium term which could be years. As this is a new entity, we will know the future of the disease as time progresses. I will continue to look after her progress from Long Covid through Clinic Nineteen. This is having significant physical, mental, social and economic impact on her and her family life. Pacing and slowing down help fatigue that is associated with long Covid and is likely to aid recovery.[34]
[34] JHB 306.
In her oral evidence, Dr Banjade said that the trajectory and longevity of long Covid is very difficult to predict. She confirmed that the Applicant’s fatigue and functional impairments are likely to persist, at least in the immediate to medium term, which could be years and that there is no cure for long Covid. Treatments are constantly evolving but as the Applicant’s symptoms have persisted, it is possible that her impairments are permanent.
In the case of Davis Mortimer J said at [85]-[86]:
In my opinion, the correct meaning of “permanent” in s 24(1)(b) is “enduring”. This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.
The critical point is that “permanent” is used as an adjective in s 24(1) to the noun “impairment” (or in the plural, “impairments”). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.
An impairment can remain or be permanent even if the symptoms or manifestations may be controlled or somewhat ameliorated by therapy and/or medication. An impairment does not need to be irreversible to be permanent.[35]
[35] Davis at [84].
In Davis, Mortimer J also considered the meaning of the phrase “known, available and appropriate” and held at [137] to [139] that:
As a general observation, in my opinion each of the adjectives must be construed as referring to circumstances in Australia. In r 5.4, the word “known” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment. The word “appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo. The capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, or their personal circumstances in terms of where they live and who they live with, and who cares for them.
The word “available” should be understood as meaning available to a particular individual. If it were to be construed as meaning “exists in Australia,” then it would have little different work to do from the word “known.” The Macquarie Dictionary defines “available” as meaning:
adjective 1. suitable or ready for use; at hand; of use or service ...
Assuming as I do the validity of r 5.4, and on the premise any given treatment is “known” and “appropriate” as I have explained those terms, in my opinion the adjective “available” should be understood as directed at what treatments an individual can, in reality, access. Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.
Counsel for the Respondent did not put to the Applicant or provide evidence of any known, available and appropriate evidence-based treatments that would be likely to remedy her physical and cognitive impairments. Nor was there any evidence that the Applicant’s physical and cognitive impairments required medical treatment or review before a determination could be made about whether her impairments are permanent or are likely to be permanent.
In summary, the evidence supports the following findings:
· the Applicant’s health conditions (long Covid, POTS, exertional dyspnoea and GAD with depressive episodes) and the impairments listed above that derive from those conditions, are enduring or permanent.
· all her current treatment is directed at reducing the impact of her symptoms rather than curing her conditions.
· no improvement in her conditions and resulting impairments is foreseeable.
· She has undergone all reasonable investigations, assessments and referrals in relation to her condition, and taken all reasonable prescribed medications.
Based on the evidence, the Tribunal determines that the Applicant’s physical and cognitive impairments are permanent.
To the extent that is necessary for the Tribunal to make a determination in relation to the permanence of the Applicant’s psychosocial impairment, the Tribunal refers to the report of Dr Anthony (psychologist) dated 30 August 2024. In that report Dr Anthony notes that her first appointment with the Applicant was in 2010 and she has attended 86 sessions since then. The Applicant was diagnosed with generalised anxiety disorder (GAD), then again in 2014 she was diagnosed with GAD with depressive episode in 2014, with ongoing episodes since that time. The Applicant has undergone all psychological treatments available and there are no further additional investigations or treatments available or required at this time.[36] Her psychosocial impairments impact significantly on her functioning.
[36] JHB 307-309.
The Tribunal determines that the Applicant’s psychosocial impairments are permanent. The Respondent and the Applicant agree with this finding.
Section 24(1)(c); Do the Applicant’s impairments result in substantially reduced functional capacity in a specified life activity area?
In the case of National Disability Insurance Agency v Foster[2023] FCAFC 11; (2023) 295 FCR 521 the Full Court established that in determining whether a prospective participant experiences substantially reduced functional capacity in a life activity area, the Tribunal must consider the range or bundle of tasks and actions that fall within that activity area, rather than limit itself to consideration of a specific task that falls within that area.[37]
[37] Foster at [62].
The activity areas referred to in section 24(1)(c) are: communication, social interaction, learning, mobility, self-care and self-management. None of these terms are defined in the NDIS Act or the Becoming a Participant Rules. The Applying to the NDIS, operational policy[38] describes each of those activities as follows:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
Socialising – how you make and keep friends, or interact with the community, ... We also look at your behaviour, and how you cope with feelings and emotions in social situations.
Learning – how you learn, understand and remember new things, and practise and use new skills.
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
Self-management (if older than 6) - how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day to day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
[38] Dated 10 December 2024.
In the case of Burrows, Senior Member French concludes that ‘domestic tasks such as laundry, domestic cleaning, gardening and yard maintenance as examples, do not fall within any of the section 24(1)(c) activity areas’. He reached this conclusion based on a ‘straightforward reading of the statutory language of the section which does not refer to a domestic activity area, and the [Respondent’s] operational policy, which does not include any reference to the physical tasks associated with domestic activity’.[39] In this respect the tasks attributed to self-management by the Respondent’s operational policy include “day to day tasks at home,” but limit those tasks to mental or cognitive tasks, not physical ability to do these tasks.[40]
[39] [90].
[40] Burrows [90].
The Tribunal accepts that it is not bound by the principal of ‘judicial comity’ and it is not bound to follow the reasoning of Senior Member French in Burrows or any previous decisions of the Administrative Review Tribunal or the Administrative Appeals Tribunal that have dealt with the issue of where to attribute domestic tasks in the context of section 24(1)(c) activity areas. However, the Tribunal is persuaded that the determination of Senior Member French in Burrows with respect to section 24(1)(c) activity areas is correct. The Tribunal agrees with the reasoning of Senior Member French that the Full Court in Foster made it clear that the statutory task of the decision maker, in this case, the Tribunal, is to determine if a prospective Applicant experiences substantially reduced capacity in a section 24(1)(c) activity area considered as a whole, rather than in respect of any particular task within that activity area. That necessitates certainty as to what tasks fall within the scope of each activity area so that the test is to be applied normatively rather than arbitrarily.[41]
[41] Burrows [95].
The Tribunal will now consider each of the section 24(1)(c) activity areas and how they apply in this case.
Communication
This activity area includes tasks associated with expressive and receptive language. In the report of Ms Warner (occupational therapist) dated 1 September 2024, she says the Applicant’s speech is clear and coherent, and the volume is normal. She is able to respond appropriately to requests and is able to follow verbal instructions and directions. She is able to write, send emails and use her mobile phone to make calls and send text messages.[42] The Respondent submits and the Applicant has conceded that the Applicant does not have a substantially reduced functional capacity in the activity of communication.[43] The Tribunal makes this finding, that is, the Applicant does not have a substantial functional incapacity for communication within the meaning of section 24(1)(c)(i).
[42] JHB 362-363.
[43] JTB 7 and 27.
Social interaction
This activity area includes tasks associated with making and keeping friends, interacting with other people in the community and maintaining behavioural and emotional regulation in a social context. As stated by Senior Member French in Burrows,[44] this bundle of tasks does not incorporate any reference to social interaction with immediate family. This is because the objects of the NDIS Act place emphasis on the independence and social and economic participation of persons with disability, beyond their immediate family.
[44] At [108]-[109].
In her oral evidence, the Applicant said that she was socially isolated because she constantly had to weigh up how to use her energy at all times. She said a social event has to be significant for her to attend. If she does attend, she will be bedridden for the next 1 to 2 weeks. She has been able to maintain a small friendship group, but she cannot spend time texting her friends or making phone calls to them. From 2023 onwards she cut down socialising with people who were not her family or best friends.
In cross examination, the Applicant agreed that she has the capacity to make social connections, but socialising makes her very fatigued. She said she has a friendship group of about six people whom she makes contact with approximately once a month. They do not come to her home as this takes up too much energy. She has an old friend with whom she speaks weekly and whom she sees approximately once every three months. This friend has chronic fatigue syndrome, and they recently jointly purchased a mobility scooter which they share. She sees her mother regularly, at least once a week. In April there are a number of family birthdays, and she spends three out of four weeks socialising and it takes her approximately two months to recover from that.
In her first statement of lived experience, dated 25 May 2023, the Applicant says:
I have put on 30kgs and don’t feel the need to wear make up or get dressed up anymore because I dislike living like this so much. I am very socially isolated. I try to call a couple of friends during the week as actually meeting with them wipes me out for days if not weeks. I also get triggered when trying to concentrate and speak with a group of people. The sound and light at venues also triggers me. I find it difficult to attend school functions as my heartbreak [sic] jumps up to around 115 beats per minute and that is just walking into the front gate. We held my husband’s 40th at the local bowling club in March, the event went for seven hours, I then slept the next 25 of the following 72 hours to cope with the dinner.
We had been saving for five years to visit my brother in Sweden in 2020 to meet my niece but we had to rebook the trip for December 2022 thinking that I would be ‘healed’ by then. I did a trial flight to Melbourne from Newcastle NSW to see how I would go and it was terrible. I got incredibly ill and was wiped out for weeks. We cancelled our trip indefinitely. I try to get to a comedy gig every couple of months with my husband, we have a basic wheelchair now which is helped to keep my heart rate down but I am very tired after these events.[45]
[45] JHB 168.
In her second statement of lived experience, dated 26 February 2024, she writes:
I still try to see family or friends at least once a month but again this takes so much energy from me that I pay for it at least a week or so after every event.[46]
[46] JHB 300.
In a statement prepared by the Applicant’s husband, dated 25 May 2023 he writes:
We barely socialise at all anymore as [the Applicant] is too sick to do so and I am always too exhausted.[47]
[47] JHB 165.
In the Access Request form, Dr Carter, the Applicant’s general practitioner, wrote on 16 March 2023 that the Applicant has:
Social withdrawal due to fear of contracting an illness, and extreme fatigue/tachycardia when anxious/exertion.[48]
[48] JHB 135.
In an undated NDIS Functional Status report prepared by Ms Randon (occupational therapist) she says:
While [the Applicant] is appropriate in her social interaction, she has limited her social interaction due to her fatigue and Cardiomyopathy.
[The Applicant’s] relationship with her husband, children and extended family has also been impacted as [the Applicant] is unable to engage in the activities she would have previously.[49]
[49] JHB 182.
In the report prepared by Ms Warner (occupational therapist), she says:
During the assessment, [the Applicant] adhered to accepted social conventions such as greetings, turn taking in conversations and observing personal space. Her rate and volume of speech was also accordance with socially accepted norms.
[The Applicant’s] capacity for social interaction is significantly impacted by her health conditions, which dictate the nature and frequency of her engagements. Here’s a summary of how her symptoms affect her social interactions:
Phone Communication:
· Prefers phone calls as they allow her to manage the duration and intensity of interactions.
· She talks to her mother every two days for about 20 minutes and friends weekly.
· Cannot engage in long conversations due to shortness of breath and fatigue, leading to the need for shorter, more focused interactions.
Text and Email:
· Uses text and email but faces challenges due to the cognitive load of managing multiple messages and the stress from accumulated unread messages.
· Dedicates specific times (e.g., Sundays) to go through messages and schedule necessary appointments, which helps manage her cognitive load.
Face-to-Face Interaction:
· Limits face-to-face interactions with friends or family to once per month.
· This frequency helps balance her social needs with her physical capacity, allowing for sufficient recovery time between social outings to manage symptoms like fatigue and post-exertional malaise.
· Utilises a wheelchair or scooter for these outings to manage her physical symptoms and conserve energy.
· Prefers accessible environments, indicating a strategic approach to choosing locations that accommodate her mobility needs.
· Attended a concert at Acer Arena using a wheelchair.
· Large venues and events can exacerbate her symptoms due to sensitivity to light and sound.
Community Engagement:
· Participation in community activities is challenging and requires significant planning, including considerations for mobility assistance, duration of the activity, and immediate access to rest areas.
· Attends larger gatherings or events like concerts occasionally, with the use of mobility aids to manage her physical limitations.
· These activities are less frequent and require significant planning and recovery time.
· Drives to locations, avoiding crowded areas like Charlestown Square to reduce stress and manage energy.
· Uses a Disabled Parking sticker to minimize physical exertion when accessing public spaces.
While [the Applicant] retains a degree of social interaction, her capacity is heavily moderated by her need to manage energy, symptoms, and mobility. Strategic use of communication methods and mobility aids, along with careful planning of social engagements, are crucial for maintaining her social life without exacerbating her health conditions. These adaptations help her balance her social needs with her health requirements, although they significantly limit the spontaneity and frequency of her interactions.[50]
[50] JHB 365-366.
The Applicant submits that she has a substantial reduced functional capacity to undertake social interaction because she does not access the community at large, her capacity to participate in social interaction is limited and she finds social interaction hard and exhausting.
The evidence does not suggest that the Applicant is unable to perform the tasks associated with making and keeping friends, interacting with other people in the community (who are not friends) and behavioural and emotional regulation in a social context. There is no evidence that the Applicant usually requires physical assistance, guidance, supervision or prompting to participate in social interaction.
The Respondent submits, and the Tribunal agrees, that social interaction does not mean interaction with the whole community, but rather elements and sections of the community, and interactions on a more or less regular basis with people one feels comfortable with.
The Respondent referred to the case of HPSC and National Disability Insurance Agency [2021] AATA 727, in which the Tribunal observed:
Given that social interaction is, by its nature, often intermittent, it is unhelpful to consider how often episodes of acute incapacity prevent her from undertaking such interaction. Rather, the pertinent question is whether she is able to make and keep friends, interact with the community and cope with feelings and emotions while doing so. It appears that the totality of the evidence does suggest a general capacity to maintain friends and to interact with the community. …The evidence tends to the conclusion that her conditions sometimes require her to absent herself from real-time or online engagement with her friends, but it does not suggest that she is unable to maintain those friendships on that account…[51]
68.The Tribunal accepts that there are external environmental factors that impact upon the Applicant’s functional performance, but not upon her capacity for social interaction. She is able to interact with others in social situations and does so independently. The evidence does not establish any relevant deficit in social skills. The Applicant is able to perform the tasks associated with social interaction. The circumstances prescribed by rule 5.8 or otherwise are not applicable in this case.
[51] JHB 8.
The Tribunal finds that the Applicant does not have a substantial functional incapacity for social interaction within the meaning of section 24(1)(c)(ii).
Learning
This activity area involves tasks associated with acquiring knowledge, skills or understanding and memory.
In the Applicant’s first statement of lived experience dated 25 May 2023, she says:
I really struggle [with] family finances and only get around to about 30 mins a month which makes us very behind with our finances. I find it exhausting to do any kind of problem solving work at a computer.
…
I have incredible brain fog which makes it very difficult for me to remember things and words. This gets worse in high-pressure situations which then in turn raises my heart rate. I find it draining to concentrate and I really can’t plan very far ahead now.[52]
[52] JHB 168.
In the Access Request form, Dr Carter says with respect to learning that the Applicant suffers severe fatigue and sleeps excessively if she does more than 40 minutes of work/study.[53]
[53] JHB 135.
In the undated NDIS Functional Status Report, Ms Randon (occupational therapist) states:
The Rivermead Behavioural Memory test was completed with [the Applicant] 30/01/23. The test is a screening tool that is well validated for detecting everyday memory problems in patient groups. [The Applicant] scored a General Memory Index of 97, giving her a percentile rank of 42%. She was within normal range for all subtests but her strengths were visual and prospective memory. [The Applicant] did struggle with the new learning task, demonstrating difficulty attending to new information and then storing the new information.
The Behavioural Assessment of Dysexecutive Syndrome (BADS) was administered on 8/02/23. The BADS is a useful tool to assess skills and demands required in daily life including problem-solving planning organisation prioritisation and attention.
[The Applicant] scored an overall classification of high average. While [the Applicant] performed well during the assessment, she did take longer than normal to plan tasks.[54]
[54] JHB 182.
Ms Randon goes on to say under the heading of Learning:
As demonstrated in the Rivermead Behavioural Memory Test, [the Applicant] is within normal range on the new learning subtest although she is at the lower end of the range. [The Applicant] has difficulties concentrating on new information, therefore she has difficulty storing new information.[55]
[55] JHB 182.
In Dr Banjade’s report dated 28 May 2024, she says:
Part of cognitive fatigue in LONG Covid that [the Applicant] is suffering from is also brain fog which manifests as cognitive slowing, memory lapses and word finding difficulties. This makes learning new skills extremely difficult. Household planning and organising takes more effort and takes longer. This will in turn contribute to further physical and cognitive fatigue as [the Applicant] is experiencing. [The Applicant] is finding everyday tasks challenging such as grocery shopping, planning kids activities, helping kids with school work, playing games with kids to name a few.[56]
[56] JTB 306.
In Ms Warner’s report under the heading of ‘Learning’ she says:
[The Applicant] presented as intelligent and articulate. [The Applicant] demonstrated capacity to sustain concentration and attention for up to 2.5 hours during the assessment.
[The Applicant] was previously the General Manager of five chiropractic clinics, a role that demands significant cognitive abilities including problem-solving, multitasking, strategic planning, and decision making.
Following her health issues, and related symptoms like brain fog and fatigue, there has likely been a significant impact on her cognitive capabilities including decreased processing speed, difficulties with concentration and memory, and challenges in learning new information or skills. The necessity to step away from her professional role indicates a marked decline in her ability to perform cognitively demanding tasks.
Her work history indicates that prior to her illness, she had a high cognitive capacity suited to complex and demanding roles. However, the onset of her chronic health conditions has reduced her cognitive functionality, necessitating adjustments in her work life and in other areas requiring cognitive effort.
…
While [the Applicant] may face challenges in learning new material or skills due to her complex health issues, with appropriate adaptations and supports, she can continue to learn and develop new skills. Tailored approaches that consider her cognitive and physical limitations are essential for her continued engagement.[57]
[57] JHB 370-371.
The Applicant submits that the evidence of Dr Banjade and Ms Warner supports a finding that she suffers a substantially reduced functional capacity to undertake learning.
The Respondent submits that the extent of the Applicant’s evidence is that she used to be able to do multiple tasks at once, but now she cannot do that. She also self-reports brain fog which makes it very difficult for her to remember things and words. The Respondent says this is in stark contrast to the objective measures of the tasks that fall within the learning activity area, for example:
· During Ms Warner’s assessment of the Applicant in September 2024 she demonstrated a capacity to sustain concentration and attention for up to 2.5 hours.[58]
· When the Applicant underwent the Montréal Cognitive Assessment Test on an admission to hospital in March 2023 her score was 29/30.[59]
· On the Rivermead Behavioural Memory test the Applicant was within the normal range on the new learning subtest although at the lower end of that range.[60]
· On the Behavioural Assessment of the Dysexecutive Syndrome, the Applicant scored an overall classification of high average. She performed well during the task but did take longer than normal to plan tasks.[61]
[58] JHB 370.
[59] JHB 494.
[60] JHB 182.
[61] JHB 182.
The evidence does not support a finding that the Applicant is unable to acquire knowledge, skills or understanding, or remember things without assistive technology, equipment, or home modifications. The evidence is that she struggles with learning new tasks, it takes her longer to plan tasks and she may benefit from memory aids such as notetaking and reminder systems. She also needs to allow for pacing with respect to any new learning. The fact that the Applicant may face challenges in learning does not mean she cannot learn. The Tribunal accepts that it may take longer for the Applicant to learn new material or skills and she may benefit from prompts and reminders to assist with her memory. The Tribunal is satisfied that Rule 5.8 has no application in this case, and she has no substantially reduced functional capacity for learning outside of circumstances prescribed by Rule 5.8.
The Tribunal finds that the Applicant does not experience substantially reduced functioning in relation to tasks associated with acquiring knowledge, skills or understanding. It follows that the Tribunal finds that the Applicant does not have a substantial functional incapacity for learning within the meaning of section 24(1)(c)(iii).
Mobility
This activity area relates to tasks associated with moving around within the home and in the community and getting in and out of bed and a chair.
In the Applicant’s oral evidence, she said that she tries to get up around 11am, but sometimes does so later. She gives the dogs a treat but finds it difficult to throw the ball to them as she used to do. She takes her medication and she eats something. At around 2pm she tries to do a load of washing, and if she does not suffer tachycardia, she will tidy the house, make the beds, get the children’s pyjamas out for the night and gettheir clothes ready for the next day. Once the washing is done, she will put it in the dryer if she can, as she can no longer use the clothes line.
When her children arrive home between 3:20pm and 4pm, she sits down and helps them with their homework. After they have showered, she will have a shower which she manages by herself. She only washes her hair once a week because that activity increases her heart rate. She can dry herself and get dressed in easy wear clothes but with difficulty. She can walk through her home. She can walk along the hall which she estimated to be approximately 10m long.
Her mother prepares some meals and she can heat them up. Her son makes dinner once a week, which usually involves something like baked fish and chips. They buy prepared vegetables from the supermarket, which can be heated up in the microwave. They have takeaways on Fridays and her husband cooks on the weekends. She tries to prepare dinner on the other days but is often unable to do so.
When she goes out into the community, she has a manual wheelchair which someone needs to push her in. She also jointly purchased a mobility scooter with a friend which they share, and this helps her to access the community.
She is able to drive a vehicle and she can drive herself to regular appointments with her chiropractor, massage therapist, acupuncturist, naturopath, general practitioner, specialists and hairdresser. Sometimes she is unable to make it to her appointments due to her symptoms.
In cross examination, the Applicant said she does not exercise regularly. She tries to go on the treadmill for five minutes every now and then. She could walk up to 50m very slowly, but would need to sit down after that.
In the Applicant’s first statement of lived experience dated 25 May 2023 she says:
My largest impairments are functions that require physical exertion and stamina. I experience shortness of breath, heart pains, and exhaustion when walking a short distance. I try not to go to shopping centres as they make my heart rate too high due from the exhaustion of walking, but also the stimulation of light and sound. I try to avoid using public transport due to the exertion needed to walk there and the mental energy to get on the transport. I try to do light day to day household activities within 15min increments but often this leads to a high heart rate or blood pressure so I have to rest and recover before I try again. Some days with the kids my heart rate and blood pressure are high but I’m the only one there to help them, so I have to push through and hope I don’t have a tachycardia event.
I try to attempt to cook two dinners a week but this is very exhausting and wipes me out. I don’t have any energy for housecleaning, tidying, clothes folding and putting away and doing the dishes. I tried to grocery shop online once a week but a lot of the time I’m too exhausted to do that, so it gets done haphazardly over a 3 week period. I can go to the bathroom on my own and can wash myself, but I am very tired and my heart rate goes up after washing my hair or shaving my legs.[62]
[62] JHB 168.
In the Applicant’s second impact statement dated 26 February 2024 she says:
At 3:15pm when I get my kids from school. It is from this point onwards that I really need NDIA’s help. What happens here most afternoons is my heart rate and blood pressure are still too high, but I do what I call ‘push myself through.’ I get the kids home, get them some afternoon tea, set up their homework/therapy exercises (my son is legally blind so we have therapy homework we have to do with him every day), assist them with their homework, unpack their bags, get their lunch ready for the next day, take them to whatever after school activity they have on, get their pj’s ready and get them both showered. I then have a shower as the warm water seems to help refuel me for the final leg of my painful afternoon/early evening.[63]
[63] JHB 298-299.
In the Access Request form, Dr Carter states in relation to the life activities affected under the domain of mobility:
20m walking, general household duties, activities daily living cause shortness of breath, chest pain, tachycardia + fatigue requires rest/sleep up to 3 hours. Excessive sleep > 12 hours per day.[64]
[64] JHB 134.
In the report of Ms Randon, occupational therapist, in relation to mobility, she says that the Applicant is able to walk independently and has good balance. She is independent with all transfers. Her mobility is limited by fatigue, but also restrictions on heart rate imposed by her cardiologist.[65]
[65] JHB 181.
In her report, Ms Warner assessed the Applicant’s ability to complete tasks that fall within the mobility activity area. She made the following observations:
·Walking: the Applicant mobilised within the home with nil aids. Frequent rests are required to manage her symptoms. She was observed to walk less than 50 m at a slow pace on a level surface before her heart rate increased.
·Transfers: the Applicant was observed to manage transfers from chair, bed and toilet independently. Her heart rate increased after completing a sit to stand transfer from a dining chair.
·Standing: the Applicant was observed to stand for less than five minutes. After this time she needed to assume a seated position in order to reduce her heart rate.
·Sitting: the Applicant completed the history taking portion of the assessment in a seated position at the dining table.
·Climbing stairs: the Applicant was observed to negotiate the steps at the front access of her home using support from walls.
·History of falls: the Applicant reported no history of falls.
·Bending: engaging in bending motions was observed to lead to a rapid increase in heart rate.
·Driving/public transport: the Applicant stated that she can drive up to 2 hours, but this is the maximum, and it requires significant recovery time.[66]
[66] JTB 374-380.
The Respondent submitted that the Full Court in Foster made it clear that:
·undertaking a task differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.[67]
·“perfection” cannot be the standard contemplated by “completely.”[68]
·a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is able to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.[69]
[67] Foster at [67].
[68] Ibid [86].
[69] Ibid [88].
The Respondent submits that the focus in this case is not what the Applicant could do previously compared to what she can and cannot do now. Assessing the Applicant’s mobility does not involve a comparison of what she could do before and what she can do now. The Applicant can perform the tasks that fall within the mobility activity area, but she does them at a much slower pace and that is not sufficient to determine whether she can participate in the activity of mobility.
The Applicant submits that she is unable to participate effectively or completely in the activity of mobility due to the fact that she has to stop whilst performing the relevant tasks.
The evidence is that the Applicant does not require assisting technology, equipment, or home modifications to move around within her home or to get in and out of bed or a chair. The evidence is that the Applicant uses a wheelchair or mobility scooter to enable her to participate in community activities for longer periods. She can negotiate stairs using support from walls. She can bend, but this can lead to an increase in her heart rate, chest pain or breathlessness. There is no evidence that she is unable to move around her home, or the community, or get in and out of bed at all even with assistive technology or physical assistance.
The evidence establishes that the Applicant is able to drive for up to 2 hours and she attends her medical, allied health and hairdresser appointments independently. The Tribunal accepts that she is unable to walk extended distances without stopping to rest and without experiencing discomfort and pain. The Tribunal also accepts that the Applicant’s ability to perform tasks associated with mobility involves increased effort, discomfort, pain as well as additional time.
The Applicant’s evidence is that she really needs support when her children get home from school to assist with all of the tasks that occur from that time until the children go to bed. This is the time when she has to ‘push herself through’.[70] While it may be accepted that the Applicant has reduced functional capacity to perform these tasks in terms of increased effort, decreased speed and onset of discomfort and pain, these tasks are not incorporated into any of the section 24(1)(c) activity areas and do not form part of the section 24(1) statutory test.[71]
[70] JHB 298.
[71] Burrows at [139].
For these reasons, the Tribunal finds that rule 5.8 or otherwise has no application in this case.
The Tribunal finds that the Applicant does not have a substantial functional incapacity for mobility within the meaning of section 24(1)(c)(iv).
Self-care
As previously stated, this activity area relates to tasks associated with personal care, including hygiene, grooming, eating, drinking and healthcare.
In the Access Request form, Dr Carter states in relation to the life activities affected under the domain of self-care:
unable to manage domestic duties.[72]
[72] JHB 135.
In the report of Ms Randon, occupational therapist, in relation to “Personal Care”, she says that the Applicant is physically able to complete all aspects of personal care tasks, but she has to plan her day to ensure that she is able to complete such tasks around the necessary requirements of being a mother and wife.[73]
[73] JHB 182.
In the report of Ms Warner, occupational therapist, she listed under the heading Self-Care a number of tasks that she believed fell within that activity area. In relation to those tasks, she reported as follows:
·Showering/Bathing: the Applicant showers daily. She stands to shower. She has adapted her showering routine to cope with her limited energy and physical capabilities, such as washing her hair less frequently and avoiding baths and complex grooming activities that exacerbate her symptoms.
·Dressing: the Applicant is able to dress herself. She opts for clothing that is easier to put on and less constricting. This choice helps reduce the physical strain associated with dressing.
·Grooming: the Applicant is able to perform grooming activities, but she attempts to spread them out, and prepares for events well in advance.
·Personal hygiene: the Applicant has a standard toilet with nil grab rails present. She reported that she manages her toileting and perianal hygiene independently.
·Eating/drinking: the Applicant uses standard cutlery, crockery and glassware. She needs to be mindful of the volume of food she consumes at any one time, as large meals can significantly tax her energy and lead to an exacerbation of her symptoms.
·Health management: the Applicant is able to schedule medical and treatment appointments and is unable to attend appointments alone. She monitors her own heart rate and blood pressure regularly using wearable devices. This helps monitor her conditions and prevents exacerbations.
·Shopping: the Applicant relies on home delivery services for groceries and relies on her family members to put grocery items away.
·Meal preparation: the Applicant has adapted her cooking methods. She uses an air-fryer and relies on pre-prepared vegetables to minimise the need for chopping and other preparatory work. She prepares meals whilst seated when possible and breaks down meal preparation into shorter segments. Her son and husband assist with meal preparation and cooking when they can.
·Cleaning: the Applicant reports that she faces considerable challenges in managing cleaning and laundry tasks. She uses disinfecting wipes for spot cleaning. She can transfer laundry from the washing machine to the dryer but this increases her heart rate and she requires a seated rest. The more demanding laundry and cleaning tasks are beyond her capacity. She currently receives two hours of help her week for heavier household chores.
·Yard maintenance: the Applicant has engaged commercial assistance with yard maintenance to reduce the demands on her husband as he is struggling with his work and household responsibilities.[74]
[74] JTB 384.
The evidence is that the real functional difficulties experienced by the Applicant relate to tasks associated with heavy domestic cleaning and laundry, garden maintenance and shopping for food and putting it away. For the reasons stated above, none of these tasks fall within the bundle of tasks that make up the self-care activity area as it operates within the legislative scheme.
The evidence establishes that the Applicant is generally able to undertake personal care, eat and drink and attend to her own health management, without assistive technology, equipment or home modifications.
The Tribunal accepts that self-care tasks for the Applicant, require increased effort as well as increased symptoms and discomfort. As a result, her personal care routine is slower and more difficult when compared with the person who does not have her impairments. However, these reductions in functional capacity do not amount to substantially reduced functional capacity for self-care when that activity area is considered as a whole.
Based on the evidence the Tribunal finds that rule 5.8 has no application in relation to this domain or in circumstances other than those prescribed by that rule.
The Tribunal finds that the Applicant does not have a substantial functional incapacity for self-care within the meaning of section 24(1)(c)(v).
Self-management
As previously stated, the bundle of tasks within the self-management area are limited to cognitive tasks associated with personal organisation, planning, decision-making, self-care, problem-solving and financial management.
Dr McBurnie states in her report that the Applicant “finds cognitive tasks mentally exhausting.”[75]
[75] JHB 42.
In Ms Warner’s report she said that during her assessment she observed that the Applicant was able to:[76]
·maintain attention for the duration of the 2.5 hour assessment.
·maintain adequate concentration for the duration of the assessment.
·recall recent events and instructions relatively well.
·plan day-to-day activities.
·handle tasks requiring basic mental manipulation, such as adjusting daily schedules but complex multitasking or rapid mental shifts appeared more challenging, particularly when she was fatigued.
[76] JHB 406.
Ms Warner concluded that the Applicant’s cognitive abilities are largely intact but her physical health issues impact her cognitive stamina and efficiency.[77]
[77] JHB 406.
Under the heading of Financial Management, Ms Warner says that the Applicant:
…manages banking and financial responsibilities effectively through the use of online tools, strategic management techniques, and family support.[78]
[78] JHB 398.
Ms Warner opined that the Applicant is able to make her own decisions and is capable of managing her own affairs.[79]
[79] JHB 408.
It is clear from the evidence that the Applicant has a very good understanding of her health conditions and manages them very effectively. Under the heading Health Management, Ms Warner states that the Applicant:[80]
·reported that she is able to schedule medical treatment appointments and is unable to attend appointments alone.
·uses wearable devices to monitor her heart rate and blood pressure regularly, which assist her to manage her conditions and prevent exacerbations.
·follows a strict medication regimen that includes multiple prescriptions.
·uses a Webster Pack to manage her medications to ensure that she takes the correct dosages at the right times and reduces the risk of medication errors.
[80] JHB 398-399.
As part of her assessment, Ms Warner conducted the World Health Organisation Disability Assessment Schedule (WHODAS 2.0). This is a self administered test. In the test the Applicant rated herself as having a severe disability associated with cognition. As part of that assessment the Applicant recorded a score of 5, which means that she could not do the following:
·analysing and finding solutions to problems in day-to-day life.
·learning a new task, for example, learning how to get to a new place
The evidence is that the Applicant has found a number of solutions to problems in day to day life, such as engaging in online shopping, transitioning her payments to automated systems where possible, managing her financial transactions on line, utilising reminders and alarms to prompt payment dates, financial reviews and other important financial management tasks.[81] The Applicant gave evidence that she could use Google Maps to get to a new place and she is able to use Chat GPT. Accordingly, the Applicant’s answers do not accurately reflect her true level of disability in these areas.
[81] JHB 397-398.
There is also evidence that when completing a Yorkshire Covid-19 Rehabilitation Screening Tool in March 2023, Dr Pollack and the Applicant agreed that she had probably overrated the degree of limitation to some of the questions and that it would probably be appropriate to redo the test.[82]
[82] JHB 153.
The evidence establishes that the Applicant is able to make plans and decisions, problem solve and manage her personal and financial affairs without assistive technology, equipment or home modifications. She does use some adaptive techniques to counteract memory issues such as utilising reminders and alarms to prompt important dates.[83]
[83] JHB 398.
The Applicant reported to Ms Warner that she requires the support of her husband, especially for decisions that involve significant financial implications. However, this does not amount to the Applicant usually requiring assistance with financial management.
The Applicant is able to perform the cognitive tasks associated with financial management, self/health care, personal organisation, planning, decision making and problem solving. The Tribunal finds that rule 5.8 has no application on these facts and there are no other circumstances that support a finding that the Applicant has substantially reduced functional capacity for self-management.
The Tribunal finds that the Applicant does not have a substantial functional incapacity for self-management within the meaning of section 24(1)(c)(vi).
Summary section 24(1)(c)
For these reasons I have found that the Applicant does not experience substantially reduced functional capacity in any of the six activity areas specified in section 24(1)(c). Whilst she does have reduced functional capacity to perform some tasks associated with daily living, to the extent that these tasks fall within the section 24(1)(c) activity areas, her reduced function is not sufficient to constitute substantially reduced function as compared with a person who does not have her impairments.
Section 24(1)(d) and (e)
It follows from this conclusion that the Applicant cannot meeting the disability requirement for access to the NDIS. In the circumstances, it is not necessary for the Tribunal to consider the requirements of section 24(1)(d) and (e).
Early intervention section 25
At the outset, counsel for the Applicant informed the Tribunal that the Applicant no longer presses her case on the basis that she meets the early intervention requirements for access to the NDIS. To the extent that it is necessary for the Tribunal to make any finding in relation to this issue, the Tribunal determines that it cannot be satisfied on the evidence available that that early intervention supports will benefit the Applicant in any of the ways specified in sections 25(1)(b) and (c) of the NDIS Act or Part 6 of the Becoming a Participant Rules.
Conclusion
For the foregoing reasons, the decision under review is affirmed.
Date(s) of hearing: 11, 12 and 13 June 2025 Solicitors for the Applicant: Intrepidus Law Solicitors for the Respondent: Maddocks
- AGLC
- Francis and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1341
- Case
- [2025] ARTA 1341
- Decision Date
CaseChat Overview and Summary
The key legal issues before the Tribunal were whether the applicant met the disability requirements under section 24 of the National Disability Insurance Scheme Act 2013 (NDIS Act) and the early intervention requirements under section 25 of the NDIS Act. To be eligible for access to the NDIS, an applicant must meet an age requirement, a residence requirement, and either a disability requirement or an early intervention requirement. The Tribunal had to determine if the NDIA's conclusion that the applicant did not meet these requirements was correct.
The Tribunal found that while the applicant did live with a disability attributable to physical, cognitive, and psychosocial impairments, these impairments were not found to be permanent, nor did they result in substantially reduced functional capacity. The Tribunal was not satisfied that the applicant's impairments would affect her capacity for social or economic participation, or that she would likely require lifetime support on the NDIS. With respect to the early intervention requirements, the Tribunal was not satisfied that the applicant's impairments were permanent. Therefore, the Tribunal concluded that the NDIA's decision was correct, and the applicant did not meet the disability or early intervention requirements for access to the NDIS.
As a result of the Tribunal's decision, the applicant's application for review was dismissed, and the decision of the NDIA was affirmed. The applicant was not granted access to become a participant in the NDIS.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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