Garcia Albiol and National Disability Insurance Agency - [2024] AATA 496

Garcia Albiol and National Disability Insurance Agency [2024] AATA 496 (21 March 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/3286
Re:Silvia Garcia Albiol
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member J Collins
Date:21 March 2024
Place:Brisbane

Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth), the Tribunal affirms the decision under review.
...................................[SGD].....................................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access - chronic fatigue syndrome - myalgic encephalomyelitis - whether applicant meets disability requirements – NDIS Act s24(1)(c) - whether impairments substantially reduce functional capacity – s24(1)(e) - whether NDIS required for lifetime – whether supports most appropriately funded through NDIS - Queensland Community Support Scheme – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975(Cth) s43
National Disability Insurance Scheme Act 2013 (Cth) sections
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Constructions Commissions (The Bay Street Appeal) FCAFC 192
Coventry and National Disability Insurance Agency [2024] AATA 259
Galea and National Disability Insurance Agency [2022] AATA 2263
G v Minister for Home Affairs [2019] FCAFC 79
G v Minister for Immigration and Border Protection [2018] FCA 1229
Jalaudin and National Disability Insurance Agency [2023] AATA 448
National Disability Insurance Agency v Foster [2023] FCAFC 11
Mulligan v NDIA [2015] FCA 544; (2015) 233 FCR 201
Power and National Disability Insurance Agency [2023] AATA 3357
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
Re Schwass and National Disability Insurance Agency [2019] AATA 28
Rooney and National Disability Insurance Agency
Secondary Materials
NDIS - Applying to the NDIS access guidelines, as of 26 June 2023.
NDIS - Assistive technology operational guidelines, as of 16 February 2023
Productivity Commission Inquiry Report: Disability Care and Support, Report No 54.
REASONS FOR DECISION
Senior Member J Collins

Ms Silvia Garcia Albiol is a 36-year-old mother of four who has a diagnosis of myalgic encephalomyelitis (‘ME’), which is also known as chronic fatigue syndrome.
In December 2021 Ms Garcia Albiol applied to the National Disability Insurance Agency (‘the Agency’) for access to the National Disability Insurance Scheme (‘the scheme’) so that she could receive supports in relation to her disability. In Ms Garcia Albiol’s NDIS Access Request form she referred to the functional impact her impairments have in relation to each of the activities referred to in subsection 24(1)(c) of the National Disability Insurance Scheme Act 2013 (‘the NDIS Act’).[1]
[1] S1: T4, T Documents.
Ms Garcia Albiol’s application was refused by the Agency at first instance and again upon internal review. Ms Garcia Albiol now applies to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Agency’s internal review decision (‘the decision under review’).[2]
[2]S1: T1, T Documents; Section 103 NDIS Act.
At the hearing Ms Garcia Albiol was represented by her partner’s mother, Ms Suzanne Hetherington. The Agency was represented by Mr Philip Nolan of counsel instructed by HWL Ebsworth Lawyers.
For the reasons set out below, the Tribunal affirms the decision under review and finds that Ms Garcia Albiol does not satisfy the disability requirements under section 24 of the NDIS Act.
BACKGROUND TO THE APPLICATION TO THE AGENCY
In affirming its original decision on 24 March 2022, the Agency was satisfied that Ms Garcia Albiol had:[3]
·a disability attributable to a neurological impairment as a result of ME; and
·a disability attributable to a psychiatric impairment as a result of persistent depressive disorder (‘PDD’), major depressive disorder (‘MDD’) and general anxiety disorder (‘GAD’).
[3] Subsection 24(1)(a) NDIS Act.
The Agency was not however satisfied that Ms Garcia Albiol had met the remaining mandatory criteria of the ‘disability requirements’ in section 24 of the NDIS Act or the ‘early intervention requirements’ in section 25 of the NDIS Act.[4] In this regard the Agency was not satisfied in respect of the following criteria:[5]
·Subsection 24(1)(b) – that Ms Garcia Albiol’s impairments in respect of PDD, MDD and GAD are, or are likely to be permanent;
·Subsection 24(1)(c) - that Ms Garcia Albiol’s impairments result in a substantial reduction in her functional capacity;
·Subsection 24(1)(e) - that Ms Garcia Albiol is likely to require lifetime support under the scheme;
·Subsection 25(1)(a) - that Ms Garcia Albiol’s impairments are permanent or likely to be permanent; and
·Subsection 25(3) - that early intervention supports are most appropriately funded though the scheme.
[4] S1: T1A, T Documents.
[5] S1: T1A, T Documents.

ISSUES

At the hearing Ms Hetherington confirmed that Ms Garcia Albiol no longer relied on the early intervention requirements in seeking access to the scheme.[6]
[6] Transcript, page 6 lines 21-31.
The issue before the Tribunal at the hearing was therefore whether Ms Garcia Albiol met the disability requirements under section 24 of the NDIS Act.
Determination of these issues is made pursuant to the National Disability Insurance Scheme Act 2013 (Cth) and the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth).
THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)
The disability requirements are contained in section 24 of the NDIS Act and provide 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 the person has one or more impairments to which a psychosocial disability is attributable; and
(b)      the impairment or impairments are, or are likely to be, permanent; and
(c)      the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)       communication;
(ii)      social interaction;
(iii)     learning;
(iv)     mobility;
(v)      self-care;
(vi)     self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
2. For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.
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 support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
4.Subsection (3) does not limit subsection (2).
The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘the Access Rules’).
The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The relevant guidelines in this review are the NDIS - Applying to the NDIS guidelines (‘the Access Guidelines’).[7]
[7] ourguidelines.ndis.gov.au: Applying to the NDIS.
There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[8] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[9] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[10] where Mortimer J held:
‘Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus bring on the purpose and context of the statutory power, not the executive policy framed to guide it …’[11]
[8] G v Minister for Home Affairs [2019] FCAFC 79 at [18].
[9] [1979] 24 ALR 577 at [590].
[10] [2018] FCA 1229.
[11] Ibid, at [171].
Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Ms Garcia Albiol meets the disability requirements.
Whether Ms Garcia Albiol meets the disability requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a ‘fact-finding task’[12] with a relatively high degree of precision and be positively satisfied.[13]
[12] National Disability Insurance Agency v Davis [2022] FCA 1002 at [42].
[13] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [55] cited in Re Schwass and National Disability Insurance Agency [2019] AATA 28 at [29]; National Disability Insurance Agency v Davis [2022] FCA 1002 at [61].
THE AGENCY’S POSITION
At the time of the hearing, the Agency’s dispute in relation to the disability requirements was confined to whether:
(a)Ms Garcia Albiol’s impairments as a result of ME result in a substantially reduced functional capacity for her to undertake one or more of the activities referred to in subsection 24(1)(c) of the NDIS Act; and
(b)Ms Garcia Albiol was likely as a result of her ME to require support under the scheme for her lifetime pursuant to subsection 24(1)(e) of the NDIS Act.[14]
[14] S14, page 2.
No submission was made or evidence provided by Ms Garcia Albiol in respect of her diagnoses of PDD, MDD and GAD that she satisfied the remaining criteria in subsection 24(1)(c) of the NDIS Act.
SECTION 24: THE DISABILITY REQUIREMENTS
Subsections 24(1)(a) and 24(1(b)
The Agency’s position is that the evidence supports Ms Garcia Albiol as having both physical and cognitive impairments arising as a consequence of her ME.[15]
[15] S13: Respondent's Statement of Facts, Issues and Contentions, page 8.
The Agency has identified the following physical impairments:[16]
·fatigue;
·post-exertional malaise resulting in significant change in her ability to move her limbs;
·decrease in muscular endurance;
·problems with energy conservation; and
·decrease in physical capability to sustain activity.
[16] Ibid.
The Agency has also identified the following cognitive impairments:[17]
·'brain-fog';
·problems with concentration and focus;
·problems with thinking and memory; and
·decrease in cognitive capability to sustain activity.
[17] Ibid.
During an assessment by Ms Justine McKeogh, Occupational Therapist, in March 2023 Ms Garcia Albiol also reported the following symptoms:[18]
·tingling and tightness in both legs;
·light-headedness which decreases with resting;
·dizziness and blurry vision;
·feeling of connection loss between her brain and her legs;
·weakness of her arms; and
·dizziness when driving at night.
[18] S3: Summonsed Records, pages 587-588.
The Agency accepts that the evidence supports there are no known, available and appropriate evidence-based treatments that would be likely to remove, cure or substantially relieve the physical and cognitive impairments that arise from Ms Garcia Albiol’s ME.[19]
[19] S13, page 9.
Having considered the evidence I am satisfied that Ms Garcia Albiol has ME and as a consequence she has both physical and cognitive impairments which are permanent and for which there is no cure or further beneficial treatment.[20]
[20] S2; S1: T7, T Documents, Report of Dr David Bird dated 1 April 2022.
Subsections 24(1)(a) and 24(1)(b) are satisfied.
Subsection 24(1)(d): Do Ms Garcia Albiol’s impairments affect her capacity for social or economic participation.
On the evidence the Agency’s concession that Ms Garcia Albiol’s physical and cognitive impairments affect her capacity for social and economic participation is reasonable and proper.[21]
[21] Respondent’s Updated Statement of Issues dated 8 May 2023, page 4.
Subsection 24(1)(d) is satisfied.
Subsection 24(1)(c): Do Ms Garcia Albiol’s impairments result in a substantially reduced functional capacity for her to engage in the activities of communication, social interaction, learning, mobility, self-care or self-management?
The Tribunal’s task
The Tribunal’s task in determining whether Ms Garcia Albiol’s functional capacity is substantially reduced is twofold.[22]
[22] S13, page 9.
The ‘first task’ is to consider whether Ms Garcia Albiol’s circumstances are captured within the deeming effect of Rule 5.8 of the Access Rules. In circumstances where the deeming effect of Rule 5.8 is not enlivened the Tribunal must proceed to a ‘second task’. The second task requires the Tribunal, on the evidence available, to determine whether Ms Garcia Albiol’s functional capacity for the activities in subsection 24(1)(c) of the NDIS Act is ‘substantially’ reduced.
The first task: Whether Ms Garcia Albiol can rely on the deeming effect of Rule 5.8 NDIS Rules to establish that she has a substantially reduced functional capacity
Section 5.8 of the Access Rules provides as follows:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8     An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)     the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)     the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)     the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
(Tribunal emphasis added)

Relevant to this application, Rule 5.8(a) of the Access Rules requires the Tribunal to assess whether Ms Garcia Albiol can participate ‘effectively or completely’ on the basis that she is unaided by assistive technology, equipment or home modifications other than ‘commonly used items.’
(Tribunal emphasis)
The term ‘effectively and completely’ is not defined in the NDIS Rules or the NDIS Act.
The question of what is meant by ‘effectively or completely’ was however addressed in the decision of National Disability Insurance Agency v Foster[23] (‘Foster’). Derrington J provided the following observation:
‘[83] In the overall legislative scheme, the adverb “completely” appears to be redundant, and in any event, unachievable. If “completely” is to be given its ordinary meaning, what is being asked of the rule is an assessment of whether a person’s impairment results in substantially reduced functional capacity to participate “wholly” or “perfectly” in the activities of communication, social interaction, learning, mobility, self-care and self-management – an impossible bar for almost everyone. That would be an absurd construction.
……………………………………………………….
[88] Within this statutory context, and having regard to the purpose of s24 as described in the revised Explanatory Memorandum, a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity’.
[23] [2023] FCAFC 11.
In respect of Rule 5.8(a) of the Access Rules neither ‘assistive technology’, ‘equipment’ or ‘commonly used items’ are defined in the Access Rules or the NDIS Act. An understanding of the meaning to be ascribed to these terms is however imperative to the issue of whether the deeming operation of Rule 5.8(a) of the Access Rules is enlivened. Relevantly, in Mulligan v NDIA (‘Mulligan’) Mortimer J stated:[24]
‘...the text is clear that if an “impairment” results in an inability to participate in the “activity” without assistive technology or equipment, the person is deemed to have substantially reduced functional capacity to undertake that activity.’
[24] [2015] FCA 544; (2015) 233 FCR 201 at [54].
The number of items of assistive technology and equipment that are used by people with a disability is an ‘exhaustive list’.[25] Included as only a ‘part’ of that exhaustive list are those items that enable them to perform the activities referred to in Rule 5.8(b) of the Access Rules. The only references to assistive technology and equipment are those contained in the Agency’s Assistive Technology operational guidelines (‘AT guidelines’).[26] The AT guidelines are issued to identify and select, from this ‘exhaustive list’, which items of assistive technology or equipment that will and will not be funded under the scheme.
[25] Forbes and National Disability Insurance Agency [2023] AATA 2408 at [87].
[26] ourguidelines.ndis.gov.au.
The interpretation of ‘commonly used items’ was considered by the Tribunal in Rooney and National Disability Insurance Agency (‘Rooney’). In Rooney the Tribunal identified the indicia in respect what are to be considered ‘commonly used items’ for the purpose of Rule 5.8(a) of the Access Rules. This indicium included items which are:
·generally accessible;
·can be used without the need for complex or specialised customisation or installation;
·are relatively simple to use; and
·are relatively inexpensive.
Therefore, the Tribunal when considering the operation of Rule 5.8 is required to make an assessment ‘as a whole’ of the ‘degree’ to which Ms Garcia Albiol can participate in the numerous tasks and actions relevant to the particular activity referred to in subsection 24(1)(c) of the NDIS Act. This is an assessment of what Ms Garcia Albiol ‘can and cannot do’ and is avowedly functional and multi-faceted.[27] Furthermore, reliance upon the specific operation of Rule 5.8(a) requires consideration of whether the assistive technology or equipment upon which Ms Garcia Albiol relies are in fact ‘commonly used items’.

The second task: Whether in the absence of the deeming effect of Rule 5.8 of the Access Rules, Ms Garcia Albiol has in any event a ‘substantially’ reduced functional capacity in respect of the activities in subsection 24(1)(c) of the NDIS Act

[27] Mulligan at [55].

The fact that Ms Garcia Albiol does not satisfy the requirements of Rule 5.8 does not however disqualify her from satisfying subsection 24(1)(c) of the NDIS Act. If Ms Garcia Albiol’s circumstances do not fall within the deeming effect of Rule 5.8, she is still able to be considered as satisfying subsection 24(1)(c) of the NDIS Act. This is because the measure of whether Ms Garcia Albiol has a ‘substantially reduced functional capacity’ for one, or a number of activities in subsection 24(1)(c) is not exhaustively defined by Rule 5.8.
In Mulligan Mortimer J held: [28]
‘As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.’
[28] Mulligan at [77].
Further, and in respect of the operation of subsection 24(1)(c) of the NDIS Act itself, in Mulligan Mortimer J also held:[29]
‘The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted’.
------
‘...No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do’.
[29] Mulligan at [55]-[56]
In Foster the Full Court also considered the interpretation of subsection 24(1)(c) of the NDIS Act. The following observation was made in relation to the activity of self-care:[30]
‘In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of ‘self-care’, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.‘
[30] Foster at [64]-[65].
Therefore on the basis that Ms Garcia Albiol’s circumstances do not enliven the deeming effect of Rule 5.8 of the Access Rules in order to satisfy subsection 24(1)(c) of the NDIS Act, the Tribunal must still undertake, with a high degree of precision, a functional, practical assessment of what Ms Garcia Albiol can and cannot do with respect to the six activities in subsection 24(1)(c). This assessment requires consideration of the ‘bundle of tasks’ and actions that comprise any given activity being considered.[31]
[31] Ibid.
The Agency submits that an understanding of the use of the word ‘substantially’ is important and relevant to any assessment in respect of subsection 24(1)(c) of the NDIS Act. I accept this submission and consider that an understanding of the use of the word ‘substantially’ as a descriptor of ‘reduced functional capacity’ is a necessary starting point of the Tribunal’s task in determining whether Ms Garcia Albiol satisfies subsection 24(1)(c).
The principles of statutory interpretation and construction have long been established. In Project Blue Sky Inc v Australian Broadcasting Authority (‘Blue Sky’) the following principles were set out by the High Court:[32]
‘The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. …The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”...’
[32] [1998] HCA 28; 194 CLR 355 at [69].
In Blue Sky their Honours also referred to Commissioner for Railways (NSW) v Agalianos, in which Dixon CJ stated that:[33]
‘... the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.’
[33] (1955) 92 CLR 390; [1955] HCA 27 at [397].
In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Constructions Commissions (The Bay Street Appeal) Chief Justice Allsop made the following relevant observation:[34]
‘The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provision are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material: See Project Blue Sky Inc v Australian Broadcasting Authority’.
[34] FCAFC 192 at [3].
The intended purpose of the scheme
On 31 July 2011 in response to a request to undertake an inquiry into a National Disability Long-term Care and Support Scheme, the Productivity Commission provided the Productivity Commission Inquiry Report (‘PCI Report’) titled Disability Care and Support, Report No 54.
The NDIS was modelled on the recommendations of the PCI Report. The PCI Report is therefore a highly relevant secondary material. It assists in the interpretation of the NDIS Act including its structure, as well as the purpose and objectives of the NDIS Act in the administration of the scheme. It follows therefore that it assists specifically in understanding of the use of the word ‘substantially’ as a descriptor of ‘reduced functional capacity’.
The PCI Report proposed that the scheme would have three main functions. Associated with each function was three different populations of ‘customers’ who were described in terms of ‘tiers’:
(i)The tier one included ‘every Australian’ on the basis that the NDIS scheme would provide to every Australian ‘insurance against the costs of support in the vent that they acquire a significant disability’ (the first function).[35]
(ii)The tier two included ‘people with, or affected by, disability’ who could approach the Agency for ‘information and referral services (as distinct from individually tailored funding)’ (the second function).
(iii)The tier three was described as a ‘much smaller group’[36] of ‘People with disability for whom NDIS-funded, individualised supports would be appropriate’ (the third function). [37]
(Tribunal emphasis)
[35] PCI Report page 158.
[36] PCI Report page 12.
[37] PCI Report page 159.
The estimated the population of the third tier was in the vicinity of 330,000 people and it was intended that the scheme would only fund supports for persons in tier three.
Persons in tier three were identified as ‘people with intellectual, physical, sensory, or psychiatric disabilities, who have significantly reduced functioning’. Persons in tier three were further identified as those who have ‘significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing support.’[38]
[38] PCI Report page 14.
The PCI Report stated:[39]
‘The National Disability Insurance Agency would apply this third criterion judiciously rather than routinely. It would be constrained by guidelines, and monitored rigorously for its effects on scheme costs. If the Agency were to use this criterion loosely, it could pose a risk to the overall financial sustainability of the scheme.’
(Tribunal emphasis)
[39] PCI Report page 15.
Relevantly, Recommendation 3.2 of the PCI Report stated:
Individuals receiving individually tailored, funded supports through the NDIS:
• should have a disability that is, or is likely to be, permanent, and
• would meet one of the following conditions:
– have significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing support
- be 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
The PCI Report identified that the scheme would not cover people:
• acquiring new catastrophic injuries, which would be covered by the NIIS as it developed (though people with injuries acquired before the establishment of the NIIS would be covered by the NDIS)
• with certain health conditions for which the publicly-funded healthcare system was best suited. For example, the care needs of people with terminal cancer would be best addressed in a palliative care setting. People with less severe musculoskeletal and psychological conditions would also typically receive assistance from the health system.
• people acquiring a disability after the age pension age
• people defined as having disabilities, but for whom the NDIS is not needed. For example, a person whose periodic back pain sometimes prevents them from picking up an object from the floor without assistance, and a person with asthma who could not communicate while having an attack are both defined as having a disability using current disability classification systems. (The latter would be defined as having a severe disability.) These people would not typically need (or want) funded support.
In considering the ‘Assessment criteria’ to be implemented with the scheme the Productivity Commission referred to the International Classification of Functioning (ICF) — the World Health Organisation’s (WHO) framework for measuring health and disability at both individual and population levels. This framework listed nine ‘activities and participation’ domains of relevance as follows: [40]
[40] PCI Report pages 309 and 310.
·communication — communicating by language, signs and symbols, carrying on conversations, and using communication devices and techniques;
·mobility — walking, running or climbing, changing location or body position, carrying, moving or manipulating objects, and using various forms of transportation;
·self-care — attending to one’s hygiene, dressing, eating and looking after one’s health;
·domestic life — carrying out everyday tasks such as acquiring necessities (like a place to live and goods and services), preparing meals, caring for household objects and assisting others;
·interpersonal interactions and relationships — relating with strangers, formal and informal social relationships, family and intimate relationships;
·learning and applying knowledge — learning, applying the knowledge that is learned, thinking, solving problems, and making decisions;
·community, social and civic life — engaging in community, civil and recreational activities;
·general tasks and demands — carrying out single or multiple tasks, organising routines and handling stress; and
·major life areas — carrying out responsibilities at home, work or school and conducting economic transactions.
In addition to identifying the cohort to whom the scheme would apply the PCI Report emphasised the importance that the NDIS was not respond to the shortfalls ‘in mainstream services by providing its own substitute services’. The PCI Report stated that:[41]
‘To do so would weaken the incentives by governments to properly fund mainstream services for people with a disability, shifting the cost to another part of government (such as from a state government to the NDIS, or from one budget ‘silo’ to another). This ‘pass the parcel’ approach would undermine the sustainability of the scheme and the capacity of people with a disability to access mainstream services. If governments and departments thought that the NDIS would address both specialist and mainstream service needs, people with a disability may well be seen as a lesser priority for the generic services provided by government.’
[41] PCI Report page 238
The objects and principles of the NDIS Act
In July 2013 and following on from the PCI Report the NDIS Act came into effect.
Subsection 3(1) provides the objects of the NDIS Act. These objects are subject to a caveat contained in subsection 3(3) which provides that in giving effect to the objects of the NDIS Act regard is to be had to ensuring:[42]
·the financial sustainability of the scheme;
·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 scheme.
[42] See also S13: Respondent’s Statement of Facts, Issues and Contentions, page 3.
Section 4 of the NDIS Act provides the general principles guiding the actions of the Agency under the NDIS Act in administering the scheme. Included as a guiding action is subsection 4(4) which provides as follows:
‘People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to co-ordinate these supports with the supports provided under the National Disability Insurance Scheme.’
To become a ‘participant’ in the scheme a person must meet the ‘access criteria’ provided under Chapter 3 of the NDIS Act. The requirements are three-fold. A person must meet both the age[43] and residence[44] requirements. The third requirement is the satisfaction of either the ‘disability requirements’[45] or the ‘early intervention requirements’.[46]
[43] Section 22, NDIS Act.
[44] Section 23, NDIS Act.
[45] Section 24, NDIS Act.
[46] Section 25, NDIS Act.
Relevant to this review are the ‘disability requirements’ which are set out in paragraph [11] of this decision. In respect of section 24 of the NDIS Act the Explanatory Memorandum provides as follows: [47]
Clause 24 sets out the disability requirements a person must satisfy in order to become a participant in the NDIS Launch. The disability requirements are designed to assess whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments that have consequences for the person’s daily living and social and economic participation on an ongoing basis. This clause also implements recommendation 3.2 of the Productivity Commission report.
[47] Respondent’s Submissions filed 29 February 2024 at [20]; Revised Explanatory Memorandum, National Disability Insurance Scheme Bi/12013 (Cth), page 14.
The relevance of the Access Rules
By operation of section 209 of the NDIS Act the Minister, through the legislature, may make rules prescribing matters necessary or convenient to carry out and give effect to the NDIS Act. In an application for access to the scheme the relevant rules, as prescribed by section 27 of the NDIS Act, are the ‘Access Rules’ which are referred to in paragraph [13] of this decision.
Particularly relevant in this review is the deeming effect of Rule 5.8[48] and the ability of the legislature to mandatorily include individuals into the category of persons with a ‘substantially reduced functional capacity’ for the purpose of subsection 24(1)(c) of the NDIS Act.
[48] Paragraphs [30]-[39], Reasons for Decision.
The relevance of the Access Guidelines
As referred to in paragraph [14] above the Agency of itself publishes, at regular intervals, Access Guidelines. The Agency correctly submits that the Access Guidelines:[49]
‘…do not provide a legislative definition of the relevant activities. They do not control the meaning of the phrase “substantially reduced functional capacity”. Nor do they alter the threshold criteria for when a person meets the disability requirements as specified in s24(1)(c) of the NDIS Act’.
[49] Respondent’s Submissions filed 29 February 2024 at [24].
Notwithstanding, the Access Guidelines are in fact based on the NDIS Act and the Access Rules for the purpose of providing operational information that explains what the Agency needs to consider in the exercise of its function and how it makes its decisions.
The threshold requirement for subsection 24(1)(c) NDIS Act
The Agency also submits that the term ‘substantially’ in the context of reduced functional capacity carries a ‘high threshold’. I am satisfied that this is the correct interpretation and my considerations are as follows:
·The recommendation of the Productivity Commission was that the scheme provide supports only to a sub-category of persons within a much larger category of the persons who have a disability.[50]
·The Productivity Commission also recommended that the scheme provide these supports ‘judiciously rather than routinely’. This recommendation is logical and central to the operation of the scheme and ensures its financial sustainability.
·The scheme was never intended to provide support to ‘every person with a disability’.
·Rather, as part of one of its functions the scheme was intended to support persons with disability to receive supports outside of the scheme through mainstream services. This would of course include persons with a disability who do not fall within the sub-category of persons for whom the scheme was intended.
·The scheme was not intended to respond to shortfalls in other mainstream services, including those provided by relevant State and Territory governments.
·The intention of providing supports to only a subcategory of persons with a disability is reinforced by the ability of the legislature to prescribes rules in relation to access to the scheme. By way of example Rule 5.8 of the Access Rules operates to categorise certain persons ‘into’ the category of persons with a ‘substantially’ reduced functional capacity.
·The concept of prescribing rules in relation to a category of certain persons who would be mandatorily ‘excluded’ from the category of persons with a ‘substantially’ reduced functional capacity is an unrealistic if not impossible task. Notwithstanding, the Access Guidelines assist the decision maker with an informed approach by way of practical examples and circumstances in which access will not be granted.
[50] Mulligan at [50]
I am satisfied that the Tribunal’s satisfaction of what constitutes ‘substantially’ reduced functional capacity for an applicant seeking access to the NDIS scheme requires a high threshold. This decision will therefore be made on that basis.

Evidence of Ms Garcia Albiol

Ms Garcia Albiol lives in Cannonvale, Queensland with her partner Dylan Hetherington and her four children aged 16, 12, 6 and 4 years.
Ms Garcia Albiol holds a bachelor’s degree in accountancy although she no longer works in paid employment. Ms Garcia Albiol stated in her evidence that with the onset of ME, working was now no longer ‘an option’ for her.[51]
[51] Transcript, page 33 line 32.
Prior to developing ME Ms Garcia Albiol described herself as being extremely active, stating that she enjoyed sports and exercising and ‘the freedom of moving my body’.[52]
[52] Transcript, page 36 lines 45-46.
Ms Garcia Albiol described her symptoms of ME as follows:[53]
‘Myalgic Encephalomyelitis has left me with many debilitating symptoms including very low energy levels. This impacts negatively on everything that I do – communication, self-care, self-management, learning, socialisation, and most of all mobility. I have an envelope of energy that I can use every day for all activities. Once that energy is used, I am basically bed bound. If I push too hard on a given day, then I experience post-exertional malaise (PEM). I try to pace myself on a daily basis to perform my basic self-care and ensure my children are ok.’
[53] S9: Applicant’s Statement of Lived Experience, at [8].

In her statement Ms Garcia Albiol also described herself as living in an ‘energy envelope’. She explained that on any given day she can experience symptoms that can last for many weeks due to ‘post exertional malaise’. These symptoms and difficulties included: [54]
[54] Ibid, at [2] and [8]; Transcript, page 54 line 33 – page 55 line 7.

heavy tingling in her legs and overall weakness. She stated ‘as soon as I start walking any distance or stand for a short period of time my head gets heavy, my vision gets blurry, and I become mentally confused. If I do attempt to walk any distance it feels like a marathon and all my neurological symptoms flare up’;
extreme fatigue lasting all day;
inability to stand or walk or walk more than a few steps to the extent that she can spend most of her day bed bound or on the couch;
dizzy spells that ‘come and go’ depending upon how much that she tries to do; and
inability to shower standing up. Ms Garcia Albiol kneels in the shower and sits to dry herself and sits to brush her teeth.

In her oral evidence Ms Garcia Albiol qualified that she is able walk and stand, however that when she stands she experiences severe pressure in her head and legs. She explained that whilst she can physically move her legs she cannot take more than ‘ten steps’. When mobilising she described a ‘heavy feeling’ that her legs were being ‘pulled down like chains’ and that her head felt like it was going to ‘explode’. Other symptoms include blurred vision, an inability to co-ordinate her limbs, brain fog and confusion.[55]
[55] Transcript, page 92 lines 23-44.
Ms Garcia Albiol’s partner Mr Hetherington ‘works away’ during the week and returns home on the weekend. During the weekdays Ms Garcia Albiol struggles with the responsibility of the four children.
Ms Garcia Albiol uses a hoverboard to mobilise around her home. She explained that using a hoverboard required ‘nearly no effort compared to walking’ and she uses it every day to move between her bedroom, living room and kitchen and to get to her children.[56] She stated however, that it is still effort for her to use the hoverboard and ‘I can only use it for short periods as my legs can only keep me upright for a little while, then I have to sit or lay down’.[57]
[56] Transcript page 66 lines 16-24.
[57] S9 at [2].
Ms Garcia Albiol also uses an office chair, with wheels, to move around the kitchen and prepare her own food. Ms Garcia Albiol explained that she is able to prepare basic ‘healthy food’ for herself such as raw salads and vegetables for meals and she cuts up her own fruit for breakfast.[58] She can cook ‘a little bit’ and prepares simple meals such as steamed vegetables and boiled eggs for her two youngest children.[59]
[58] S14 at [29]; Transcript 55 line 21.
[59] Transcript, page 40 lines 14-15.
She is unable to cook meals for the rest of her family and on weekends Mr Hetherington will prepare meals in advance and arrange for the delivery of prepared meals. Her eldest child ‘J’ will also assist with the cooking of meals during the week.
Ms Garcia Albiol is able to do a ‘small shop’ for groceries for her family when she is compelled to do so out of necessity of her family’s needs. She is unable to shop for large quantities of food and purchases most items online.[60]
[60] Transcript, page 60 lines 15-21.
Ms Garcia Albiol explained that J provides significant domestic assistance to the family in respect of meals, laundry, shopping and preparing the younger children for school. She is however able to assist on occasions with dressing and bathing the two younger children.[61]
[61] Transcript, page 58 lines 38-46.
Ms Garcia Albiol’s three eldest children attend school and her youngest child attends day care four days a week.[62] Ms Garcia Albiol is able to care for her youngest child on the weekday that this child does not attend day care.[63]
[62] Transcript, page 29 lines 40-46
[63] Transcript, page 57 lines 5-6.
Ms Garcia Albiol is able to drive, when necessary for short distances on the basis that it is a seated activity. She drives only for basic activities which include going to the doctor[64] and getting her children to and from school and day care each day.[65] When dropping off and collecting her youngest child from day care, Ms Garcia Albiol will park her car nearby and then walk approximately 20 meters to and from the day care centre. She stated that she then requires at least five to ten minutes sitting in the car to rest each time that she does this.[66]
[64] Transcript, page 51 line 35.
[65] Transcript, page 56 lines 32-37.
[66] Transcript, page 91 lines 9-11.
Ms Garcia Albiol does not access public transport as she is unable to walk the distance required to the local bus stop. She would also require assistance to access the stairs onto a bus.
Ms Garcia Albiol is able to shower herself. She uses a shower chair or will get on her knees in the shower. She often showers several times a day and is able to shampoo her hair and dry herself. Ms Garcia Albiol sits on a bench to brush her teeth.[67]
[67] Transcript, page 54 line 39 – page 55 line 9.
Ms Garcia Albiol is able to ulitise electronic technology. She uses a smart phone for calls and messages, applications and online shopping however, she finds writing messages ‘exhausting’.[68] She talks with her father and friends who live overseas via Zoom and accesses Facetime for medical and allied health consultations.[69]
[68] Transcript, page 61 lines 9-17.
[69] Transcript, page 51 lines 18-19; page 53 lines 15-16.
Ms Garcia Albiol is able to ride a bicycle. Her evidence was that the last time she rode a bike was in the 2023 Christmas period when she was able to ride a bike across a flat surface to move around during a family holiday at a holiday park. Ms Garcia Albiol stated that whilst she did attend some of the family functions during the week-long family holiday she was unable to remain in the holiday park ‘environment’ during the evenings and that she would drive the five minutes back home each night to sleep.
Ms Garcia Albiol described herself as a person, who prior to the onset of ME, loved socialising. She states that she is now unable to engage in social activities. She avoids social contact outside her immediate family on the basis that the amount of energy required to engage in conversation is challenging and leaves her exhausted.[70] She stated in evidence that ‘talking and concentrating makes my symptoms worse’.[71]
[70] Transcript, page 62 line 34 – 63 line 3.
[71] S9 at [3].
Ms Garcia Albiol has been in receipt of two hours of domestic support under the Queensland Community Support Scheme (QCSS) for approximately two years.[72]
[72] Transcript, page 30 line 25-26.

Evidence of Mr Dylan Hetherington

My Hetherington is Ms Garcia Albiol’s partner of ten years. He is the father of her two youngest children and stepfather of her two older children.
Mr Hetherington works away five days per week, and on occasions sometimes only four days a week. When he returns home on the weekend he attends to the family laundry, food shopping, cleaning, house maintenance, lawns and gardens, driving and attending to all of the children’s weekend activities.[73] He also attends to all communications with the children’s school and day care. He explained that prior to her diagnosis of ME Ms Garcia Albiol undertook most of the family’s domestic tasks including laundry, food shopping and cleaning.[74]
[73] S10: Statement of Mr Dylan Hetherington dated 10 October 2022, at [3]; Transcript, page 77 lines 18-20.
[74] Transcript, page 77 line 26 – page 78.
Mr Hetherington described the effect of ME upon Ms Garcia Albiol as ‘devastating’, both physically and mentally.[75] Ms Garcia Albiol spends lengthy periods of time bed bound or laying on her couch, mobilising only for basic needs. She is only able to focus on her own day-to-day tasks of self-care and self-management and everything else Mr Hetherington must do by himself.[76]
[75] Transcript, page 71 line 18.
[76] S10 at [6].
Mr Hetherington explained that during the weekdays when he is away working Ms Garcia Albiol’s eldest child J provided significant support to the family. He explained that J:[77]
‘does all of the housework, cares for her younger siblings, all of cooking, making lunches and preparing for school/childcare. She also bathes the little kids and manages their day-to-day needs. Without J helping, our family would not survive and we would lose everything due to Silvia’s condition. J spends at least 2-3 hours per day in the morning, after school and at night caring for Silvia and the kids. I also put our youngest boy… in childcare 4 days per week due to Silvia not being able to care for him and this is putting lots of financial pressure on our family. She would love to have him at home and care for him but simply cannot keep up with his demands and energy like a normal 3-year-old boy.’
[77] S10 at [5].
Mr Hetherington explained that Ms Garcia Albiol must ‘pace’ herself each day so as to stay within her ‘energy envelope’ and avoid neurological symptoms, fatigue and dizziness.[78]
[78] S10 at [4]; Transcript, page 71.
Mr Hetherington identified Ms Garcia Albiol’s loss of mobility as her ‘biggest issue’. He explained that Ms Garcia Albiol struggled to stand, even for short periods of time and was unable to walk distances longer than five to 30 metres. He indicated that Ms Garcia Albiol was unable to walk past the driveway of their home and that to access the community, she must drive everywhere.[79] He described Ms Garcia Albiol’s access to the community as significantly restricted by her inability to mobilise stating ‘We cannot do any family trips or weekends away and holidays like we used to do and love. We are stuck at home as Silvia cannot manage to travel too far from the house’.[80]
[79] S10 at [6].
[80] S10 at [7].
Mr Hetherington confirmed that Ms Garcia Albiol had two hoverboards which she used to mobilise around the home, with one in use and the other always being on ‘charge’.[81]
[81] Transcript, page 73 line 9.
Prior to the onset of her symptoms he explained that Ms Garcia Albiol was an extremely active person who enjoyed the gym, sports and the beach. He described her as socially very friendly with a large of group of friends who she loved to talk to and catch up with. He considered that ‘you couldn’t keep her inside and you couldn’t keep her still before this disability’. [82]
[82] Transcript, page 70 lines 31-43.
Mr Hetherington stated that Ms Garcia Albiol used to walk for kilometres each day and also worked part-time time as a waitress, spending up to eight hours each shift on her feet.[83] When asked to differentiate between Ms Garcia Albiol’s level of symptoms on any given day Mr Hetherington stated that ‘all the days as bad compared to what she used to be like’.[84]
[83] Transcript, page 71 lines 4-7.
[84] S10 at [8].
Written evidence of Ms Garcia Albiol’s daughter ‘J’
J is 16 years of age and a high school student. She is the eldest in a sibship of four. She provided a statement. Understandably, she did not provide oral evidence at the hearing.
J described her mother as struggling to get through each day on the basis of only having a small amount of energy as compared to a ‘normal person’.
She described in some detail the tasks that she undertakes in the family home since her mother has been no longer able to perform these tasks. J estimated this level of assistance in the range of two to three hours each day during the week. She described these tasks as follows: [85]
[85] S11: Statement of J dated 10 October 2022 at [3].
‘I help her every day, the ways I help her is by
·cleaning every morning and night – kitchen, floors, general tidying
·washing and hanging out clothes/towels, folding/putting away
·caring for my younger siblings including bathing, dressing and feeding
·meal preparation for the family
·doing tasks for her for example going into the shops if she needs something.
I also help by
·cleaning/organising cupboards
·cleaning the fridge and organising food
·washing sheets/bed making
·organise birthday celebrations for my younger siblings and helping dad with food preparation and supervision of children
·caring for younger siblings when dad takes us for an outing (mum rarely can go).
·I can also help her with selfcare tasks if needed’.
J receives some respite on the weekend when Mr Hetherington returns home, however she stated ‘I still help on weekends when my dad is home. He does a lot of the jobs then’.
J explained her mother’s mobility as follows:
‘She can hardly walk her legs are only able to take a few steps and they will be sore. To prevent them from getting sore she goes around the house with a hoverboard. Not only that she can’t walk much with her legs but also that she can’t stand for long with them’.
…………
‘A good day looks like she might have enough energy to go somewhere with us. If she does try to go somewhere with us, she struggles for days after. She rarely goes on outings anymore. A bad day looks like she has no energy to do anything and will stay home all day doing nothing’.
…………
‘There are no good days anymore, not like when she was before she got sick. Some days might be a bit better than others’.
Evidence of Suzanne Hetherington
Ms Hetherington is Mr Hetherington’s mother. She is also a registered physiotherapist and has worked in the disability sector in a rural setting for many years.
Ms Hetherington lives a distance of an approximate ‘seven-hour drive’ from Ms Garcia Albiol and her family. She visits the family two to three times a year. Ms Hetherington also regularly communicates with Ms Garcia Albiol by phone and FaceTime.
Ms Hetherington provided her own observations of Ms Garcia Albiol. She explained that Ms Garcia Albiol has a severely reduced functional capacity to partake in the activity of mobility, and that her mobility affected her other activity domains. Ms Hetherington stated:[86]
‘Silvia’s physical mobility has been severely impacted due to her fatigability and Post Exertional Malaise (PEM). This affects all areas of her function.
I have observed that Silvia has an amount of energy that she can use each day. This impacts on all mobility and all her activities. This energy varies from day to day and is affected by PEM. Activities that she can do one day, she may not be able to do the next.
I have observed that Silvia finds it difficult to walk around the house. She sits often due to fatigue and uses an office chair to prepare her own food and move around the kitchen. She has recently tried using her daughter’s hoverboard to navigate around the house attempting to conserve energy.
Silvia is unable to go shopping, due to the distances and energy required, similarly she is unable to take her young children to the park. Safety is a concern also, as she would not be able to manage if the children were not compliant.’
[86] Transcript, page 15 lines 6-14; S12: Statement of Ms Sue Hetherington dated 10 October 2022 at [6].
Ms Hetherington referred to an online resource which stated:[87]
It is important to understand that exertion not only worsens symptoms in the short term but can also lead to an overall worsening of the individual’s illness on a more permanent basis. For this reason, pushing through when experiencing symptom exacerbation is not advised for people with ME/CFS. Instead, pacing activities and rest are recommended. Research has shown that those who stay within their energy limits (also known as the “energy envelope”) tend to experience fewer symptoms and have increased functional capacity than those who push themselves.
[87] Graded exercise and CBT for ME/CFS – Emerge Australia at >
Ms Hetherington referred to Ms Garcia Albiol’s practice of reserving her energy for essential tasks such as getting her children to school and day care. She also emphasised the level of assistance provided by J towards running of the family household and management of the younger children when Mr Hetherington is away working.
Ms Hetherington stated that whilst the family received two hours of publicly provided assistance from QCSS the family had been advised that QCSS is only available to individuals who are not eligible for access to the scheme.[88]
(Tribunal emphasis)
[88] Transcript, page 17 lines 30-45; See also of Kerry Hooper, Occupational Therapist
Ms Hooper assessed Ms Garcia Albiol at her clinic on 29 October 2021 and prepared a report dated 6 November 2021 for the purpose of supporting Ms Garcia Albiol’s access request.[89] Ms Hooper also completed Ms Garcia Albiol’s NDIS Access Request - Supporting Evidence form on 6 November 2021. [90]
[89] S1: T5, T Documents.
[90] S1: T4, T Documents.
Ms Hooper described ME as a complicated disorder, characterised by extreme fatigue that worsens with physical and mental activity which is not improved with rest. She stated that ME could last anywhere from six months to ‘many years’ and that Ms Garcia Albiol was likely to have it for her lifetime.
In her assessment, Ms Hooper observed that Ms Garcia Albiol had reduced mobility and was restricted in all activities of daily living. She scored Ms Garcia Albiol as requiring a level 4 of support on the Care and Needs Scale (‘CANS’) with her highest identified needs including assistance with shopping, domestic and parental duties, recreation and mobility.
She noted also that Ms Garcia Albiol reported a ‘severe reduction’ in her participation of social and recreational activities over the last 12 months as a consequence of her fatigue and immobility, and that she was experiencing social isolation and loneliness.
Evidence of Dr Mueed Mian, Rheumatologist
Dr Mian provided a report dated 14 December 2021.[91] He confirmed that Ms Garcia Albiol experienced debilitating symptoms of extreme tiredness, subjective weakness and non-specific numbness and referred to her ‘constant loss of function’. He described Ms Garcia Albiol’s symptoms as ‘extremely severe’ stating ‘The symptoms can be so debilitating that it can affect the patient’s quality of life to the point where tasks we take for granted in normal life appear extremely difficult to do’.[92]
[91] S1: T6, T Documents; S2: Summonsed Records, page 192.
[92] S1: T6, T Documents page 40.
Evidence of Justine McKeogh, Occupational Therapist
At the request of the Agency, Ms McKeogh assessed Ms Garcia Albiol at her home on 20 March 2023 and provided two subsequent reports.[93] Ms McKeogh also provided oral evidence at the hearing. Ms McKeogh is an occupational therapist with 35 years’ experience which includes experience assessing over 200 persons affected by ME.
[93] S5: Report of Ms Justine McKeogh dated 6 April 2023; S6: Supplementary report dated 26 September 2023.
Ms McKeogh assessed Ms Garcia Albiol’s level of functional impairment as ‘less than optimal’ for a person of her age and stage in life, stating that:[94]
‘Ms Garcia Albiol is not able to fully mobilise independently due to the physiological impact of her condition.’
[94] S5 at [2.2].
She explained that whilst Ms Garcia Albiol was able to ‘move around’ she was restricted in relation to the distances she could mobilise, had limited endurance and became easily fatigued. Ms McKeogh reported Ms Garcia Albiol was only able to walk eight to ten metres before needing to rest.[95]
[95] S5 at [2.3].
Ms McKeogh referred to Ms Garcia Albiol’s use of a hoverboard to mobilise within her home as a mobility aid to avoid the use of her legs and reducing the fatigue which followed. Ms McKeogh stated, ‘At this stage of her condition, and due to her already modified independence for mobilising, I would recommend a physiotherapy assessment to ascertain if this is safe to continue using, or if other alternatives could be considered.[96]
[96] S5 at [2.6].
Ms McKeogh observed that Ms Garcia Albiol used a hoverboard to prevent mental and physical fatigue. In her opinion use of a hoverboard is less fatiguing for Ms Garcia Albiol than walking for two reasons: firstly, when using a hoverboard the brain was not required to send messages to the legs to move; secondly, the legs themselves did not need to move.[97]
[97] Transcript, page 102 line 46 – page 103 line 8.

Ms McKeogh also identified Ms Garcia Albiol’s use of furniture and walls to assist with mobilisation, including at all times when using the hoverboard.[98] Ms McKeogh further identified Ms Garcia Albiol as having balance issues and an inability to walk up any inclines or hills. She also explained that the amount of time Ms Garcia Albiol requires to rest before resuming walking varies depending upon her energy levels and her activity level prior to commencing walking.
[98] S6 at [12].
During her assessment Ms McKeogh identified several signs of deconditioning, including physical and cognitive fatigue which both increased substantially over the course of her assessment and a decreased tolerance for external stressors.
She referred to Ms Garcia Albiol’s ability to drive in a motor vehicle only short distances due to the exacerbation of her symptoms. She also stated that public transport would present significant difficulties for Ms Garcia Albiol due to the coordination required to embark and disembark.
Ms Garcia Albiol’s ability to transfer in a bed, chair or motor vehicle was subject to ‘modified independence’. Ms McKeogh identified Ms Garcia Albiol had a potential falls risk due to fatigue. She referred to two occasions where Ms Garcia Albiol had fallen, explaining that these falls had affected her confidence and caused Ms Garcia Albiol to limit her movements due to a fear of falling.
Ms McKeogh stated that Ms Garcia Albiol limits her time in the community to conserve more energy for other activities. Ms Garcia Albiol feels most secure in her own home, and accessing the community even as a passenger in the car rapidly exacerbates her symptoms.
She stated that Ms Garcia Albiol was unable to leave the house with her youngest child in the absence of the support of another adult. This is on the basis that she does not have the physical ability to keep him safe. She assessed Ms Garcia Albiol as able to lift around four kilograms and inferred that she would therefore have difficulty keeping her young child safe in the community as he weighed around 15 kilograms.
Subsection 24(1)(c)(iv): Does Ms Garcia Albiol’s impairment or impairment result in a substantially reduced functional capacity?
The first task
The Tribunal’s task in considering the likely deeming effect of Rule 5.8(a) of the NDIS Rules requires identification of whether the aids Ms Garcia uses to participate in any of the activities in subsection 24(1)(c) of the NDIS Act are ‘commonly used items’.
Ms Garcia Albiol’s evidence is that she uses a hoverboard and a chair with wheels to mobilise around her home. She also uses a shower chair to wash and sits on a bench to brush her teeth to undertake her self-care.
The hoverboard used by Ms Garcia Albiol was purchased three years ago as a birthday gift for her daughter for approximately $300. Ms Garcia Albiol has since taken it upon herself to utilise the hoverboard to mobilise around her home. She described the hoverboard as simple to use and requiring much less effort than walking.[99]
[99] Transcript, page 64 lines 2-19; page 65, lines 7-8.
I am satisfied that a hoverboard, a chair with wheels, a shower chair and a bench seat are ‘commonly used items’ for the purpose of Rule 5.8(a) of the NDIS rules. I make this finding with regard to the indicia in Rooney as follows:[100]
(a)All of the items are all easily accessible without referral from a medical practitioner, physiotherapist or other allied health professional;[101]
(b)None of the items used by Ms Garcia Albiol require any ‘particular customisation or prescription’;[102]
(c)All items are relatively simple to use; and
(d)All items are relatively inexpensive and were able to be obtained commercially.[103]
[100] Rooney at [27].
[101] Coventry and National Disability Insurance Agency [2024] AATA 259 at [107].
[102] Galea and National Disability Insurance Agency [2022] AATA 2263 at [91].
[103] Power and National Disability Insurance Agency [2023] AATA 3357 at [47] and [71].
I am also satisfied that Ms Garcia Albiol remains unassisted by the deeming operation of either Rule 5.8(b) or 5.8(c) of the NDIS Rules. This is on the basis that no evidence was provided to support a contention that Ms Garcia Albiol usually requires assistance from others to undertake tasks that form the relevant activities under subsection 24(1)(c) of the NDIS Act.
Rather, her evidence was that she uses the items referred to at paragraph [127] to assist with these various tasks such that she is able to undertake them independently, albeit that she may be particularly slow in undertaking these tasks or is only able to do them in a modified manner due to her fatigue and limited energy. In this regard I refer to the Access Guidelines which relevantly state that undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.[104]
The second task
[104] At 8.3.1.
On the basis that the deeming operation of Rule 5.8 is not enlivened I am thereafter required to consider whether Ms Garcia Albiol has a substantially reduced functional capacity in relation the activities under subsection 24(1)(c) of the NDIS Act.[105]
[105] Mulligan at [19].
This consideration relates specifically to Ms Garcia Albiol’s ‘daily life activities’. Relevantly the current Access Guidelines state as follows:
You may be eligible under the disability requirements if you have one or more impairments that are likely to be permanent and this substantially impacts your ability to do daily life activities.
…………….
To meet the disability requirements, we must have evidence of all of the following:
• You have a disability caused by an impairment.
• Your impairment is likely to be permanent.
• Your impairment means you have a substantially reduced functional capacity to do one or more daily life activities. These activities include moving around, communicating, socialising, learning, undertaking self-care, or self-management tasks.
(Tribunal emphasis)
For reasons already stated,[106] my consideration and assessment of whether Ms Garcia Albiol’s functional capacity is substantially reduced for the purposes of subsection 24(1)(c) of the NDIS Act in respect of ‘daily life activities’ carries a high threshold.
[106] Paragraphs [68]-[69], Reasons for Decision.
Mobility
The Operational guidelines describe mobility as follows:
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.
In Madelaine the Tribunal held (in respect of an earlier but not dissimilar version of the Access operational guidelines), that the threshold requirements to achieve functional capacity with respect to mobility are ‘relatively modest’ stating that:[107]
‘A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking, a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as moveable, not fixed, free to move.
The use of the phrase move around...to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.
No particular distance is specified in the Guideline as defining this level of mobility, but it seems reasonable to suggest that a person who can travel 50 m by herself has the capacity to do the things referred to in the Guideline.’
[107] Madelaine at [104]-[105].
Prior to the onset of ME the evidence supports that Ms Garcia Albiol led an active lifestyle. Things that she once enjoyed such as attending the gym, overseas travel, snow skiing, sports activities and going to the beach she can no longer do due to her impairments. She is easily fatigued. She can no longer ‘stand’ for any length of time without experiencing a heavy feeling in her head, blurred vision and confusion. She cannot walk long or even moderate distances due to an overall feeling of weakness and heavy tingling in her legs. She can no longer remain upright for the most part of the day and requires periods of rest on her bed or couch each day to manage her symptoms.
There is no doubt that Ms Garcia Albiol’s symptoms have had a significant impact and have reduced her ability to participate in the activity of mobility to the same extent. As a result of her symptoms Ms Garcia Albiol now has what she describes as an ‘energy envelope’ of limited energy levels which she must manage. A substantial part of managing her limited energy levels requires restricting and modifying her degree of movement. She must also ‘pace’ herself on a daily basis and mobilise to the extent permitted within her ‘energy envelope’.
With the use of energy conservation and management strategies and assisted by the items referred to at [127] above Ms Garcia Albiol is notwithstanding still able to independently participate in a range of tasks and actions that are comprised in the activity of mobility.[108] Whilst Ms Garcia Albiol has a slower ability to mobilise for reduced periods of time this does not prevent her participation in a range and variety of daily tasks that require her to mobilise.
[108] Foster at [65]
Ms Garcia Albiol is able to get out of bed and dress herself. She is able to shower herself and sometimes does so up to three times a day.[109]
[109] Transcript, page 59 lines 43-47.
She is able to get in and out of a car. She is able to drive a car and does so on a regular basis, albeit for short distances. Each morning she is able to drop off her children at school and day care, and then undertake a return journey to collect them in the afternoon.
She is able to walk her youngest child 20 meters from her parked car into the day care centre and collect her child from in the same manner at the end of the day.
She is able to drive a car to the local shop. She is able to move around the shop and purchase small grocery items.
She is able to ride a bicycle.
She can lift a four-kilogram watermelon off the ground and return to a standing position with minimum difficulty.[110]
[110] S6, page 12.
She stand and balance on a hoverboard to manoeuvre around her home, use furniture and walls as supports, and does so on a regular basis.
She is able to shower herself and shampoo her hair by using a shower chair or showering on her knees.
She is able to use her arms to dress and undress herself, brush her hair and teeth, operate a mobile phone, television remote control and a computer, albeit in a seated position.
She is able to mobilise around her kitchen by sitting in a chair with wheels. Whilst in the kitchen she is able to use her upper limbs to prepare meals and snacks for herself and her youngest children which includes chopping fruit and vegetables, using the microwave and a steamer and boiling eggs.[111] On some days she prepares breakfast for her children before school.[112]
[111] Transcript, page 57 line 36 – page 58 line 11.
[112] Transcript, page 36 line 1.
Ms McKeogh observed that Ms Garcia Albiol was able to sit-to-stand transfer with modified independence and was able to balance as she mobilised on her hoverboard[113] Ms McKeogh explained that the use of the hoverboard minimised Ms Garcia Albiol’s physical and cognitive exertion.[114]
[113] S6, page 7.
[114] S6, page 9.
Ms Garcia Albiol reported to Ms McKeogh that she was capable of walking between eight and ten metres before coming fatigued.
Mr Hetherington’s evidence estimated Ms Garcia Albiol could walk distances of between five and 50 metres. In her oral evidence Ms Garcia Albiol referred to walking a distance of two to three meters before her symptoms will become too strong for her to continue although she considered that she could ‘probably’ walk 50 meters.[115]
[115] Transcript, page 91 lines 33-39.
Taking into account the tasks which Ms Garcia Albiol can and cannot do, including the degree to which she can undertake various tasks that are in respect of her mobility, I am not satisfied that Ms Garcia Albiol has a substantially reduced functional capacity in respect of the activity of mobility for the purposes of subsection 24(1)(c).
I acknowledge that Ms Garcia Albiol’s impairments significantly affect her mobility and the degree to which she can mobilise. I further acknowledge that the impact of her impairments are amplified in the context of her circumstances which include of most significance her responsibilities as the mother of four children.
Subsection 24(1)(c) is not however a measure of Ms Garcia Albiol’s functional capacity to care for her children. Ms Garcia Albiol’s capacity to meet her responsibilities in caring for her children is not a relevant consideration in determining whether she has a substantially reduced functional capacity in her mobility or any other activity under subsection 24(1)(c) of the NDIS Act.[116]
[116] Jalaudin and National Disability Insurance Agency [2023] AATA 448 at [55].
I am satisfied that Ms Garcia Albiol is able to participate in a variety of tasks in relation to the activity of mobility to the extent and degree that she does not satisfy what is a relatively high threshold requirement. Ms Garcia Albiol’s functional capacity to participate in the tasks comprised of the activity of mobilisation is therefore not substantially reduced.
Other activities- Communication, social interaction, learning, self-care and self-management
In respect of the activities of communication, social interaction, learning, self-care and self-management, Ms Garcia Albiol submits that these domains are all affected in a ‘general sense’ as a consequence of the reduction in her functional capacity to mobilise.
Communication
The Operational Guidelines describe communication 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.
The communication threshold was considered in Madelaine to be of 'a fairly basic kind: telling a family member about something that has happened, explaining to a doctor in what part of the body pain is experienced, asking for help…’
Ms Garcia Albiol elected to attend the hearing by telephone. She was able to provide detailed evidence in relation to her impairments and symptoms. She was also able to answer questions during the hearing which included cross-examination.
Ms Garcia Albiol gave evidence that she communicated regularly with her father and Ms Hetherington using her phone.[117] Ms Garcia Albiol has no difficulties communicating with her partner or her children and does so on a daily basis.
[117] Transcript, page 61 lines 14-16.
Ms Garcia Albiol speaks both English and Spanish.
Ms Garcia Albiol is able to use a computer to send and receive emails and confirmed she was able to type up her own statement submitted in this review.[118] She is also able to engage with a doctor and other allied health professionals and provide the necessary information required in seeking help in relation to medical or other issues.[119]
[118] Transcript, page 95 lines 18-25.
[119] Transcript, page 95 lines 12-27.
Ms McKeogh stated in her report that Ms Garcia Albiol was able to speak and engage on her own behalf and ‘effectively engage in conversation and interactions as required’ during her assessment. Notwithstanding, Ms Garcia Albiol’s concentration and focus deteriorated over the course of a two-hour assessment.[120]
[120] S6, page 5.
I am satisfied based on the evidence that Ms Garcia Albiol’s functional capacity to participate in the tasks comprised of the activity of communication is not substantially reduced.
Social interaction
The Operational Guidelines describe social interaction as follows:
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.
In Madelaine the Tribunal held ‘The criteria referred to in the Guideline are directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills.’[121]
(Tribunal emphasis)
[121] Madelaine at [87].
In Kilgallin and NDIA the Tribunal observed the following in relation to the threshold requirements for social interaction:[122]
‘Social interaction as referred to in 24(1)(c)(ii) doesn’t, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community.’
[122] [2017] AATA 186 at [18].
Ms Garcia Albiol gave evidence that is unable to engage in social activities and that she does not invite friends over to her home on the basis that for her, more than ten minutes of socialising would be ‘exhausting’.[123] She explained that ‘the kids are as much as I can keep up with conversation’.[124] She stated that she rarely accesses the community, other than for essential visits to a doctor or dentist. She avoids any social interaction as ‘the mere fact of talking can make me exhausted and symptomatic’.[125]
[123] Transcript, page 62 lines 33-34; page 63 line 8.
[124] Transcript, page 62 lines 43-44.
[125] S9 at [5].
Mr Hetherington’s evidence was that Ms Garcia Albiol was socially and mentally withdrawn from talking to other people and he described her as reluctant to leave the house except to transport her children.
Notwithstanding her difficulties to socialise in her wider community the evidence supports that Ms Garcia Albiol interacts socially with her family and friends on a regular basis. Ms Garcia Albiol interacts with her children each day. Ms Keogh’s evidence is that Ms Garcia Albiol’s main social interaction is taking her children to and from school and any of their other activities.[126]
[126] S5, page 6.
Ms Garcia Albiol interacts also with her partner when he is not at work and calls him while he is away. She speaks with her father in Spain, Ms Hetherington and other friends on the phone and is able to exchange text messages. She has an active social media account.[127]
[127] Transcript, page 95 line 40.
Ms Garcia Albiol and Ms Hetherington both gave evidence of recently taking a family holiday with the children and Mr Hetherington’s extended family.[128] Ms Garcia Albiol will also on occasions attend the beach with Mr Hetherington.
[128] Transcript, page 23 lines 17-37; page 61 line 19 – page 62 line 11.
I am satisfied that Ms Garcia Albiol has the ability to participate with members of her immediate and inner community. I accept that she feels generally unable to interact socially outside her home and with non-family members however this level of socialisation extends beyond the threshold measure of a substantial reduction in her ability to participate in social interaction.
I am satisfied based on the evidence that Ms Garcia Albiol’s functional capacity to participate in the tasks comprised of the activity of social interaction is not substantially reduced.
Learning
The Operational Guidelines describe learning as follows:
Learning – how you learn, understand and remember new things, and practise and use new skills.

Ms Garcia Albiol evidence was that due to her ‘brain fog, mobility and other neurological symptoms’ she has difficulty understanding, remembering and learning new things.[129]
[129] S9 at [4].
In her oral evidence Ms Garcia Albiol referred to undertaking research in an effort to understand her illness.[130] She stated that she used social media ‘to search how to heal’ and ‘find solutions to my health’.[131] Mr Hetherington confirmed that Ms Garcia Albiol reads and researches into treatments to manage her physical and cognitive impairments arising from ME.[132]
[130] Transcript, page 53 lines 26-27; page 54 lines 9-10.
[131] Transcript, page 95 lines 32-41.
[132] S10 at [2].
Mr Hetherington’s evidence was that:[133]
‘She does attempt to read and research looking for answers, treatments to manage her symptoms and seeking support. She can devote a lot of time to this pursuit out of desperation for help.’
[133] S10 at [6].
Ms Garcia Albiol’s evidence was that she devotes time to this research activity. I am satisfied that Ms Garcia Albiol demonstrates a clear ability to utilise a smart phone and a computer for research and that she is able to absorb and process new information obtained during her research.
I am satisfied based on the evidence that Ms Garcia Albiol’s functional capacity to participate in the tasks comprised of the activity of social learning is not substantially reduced.
Self-care
The Operational Guidelines describe self-care as follows:
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.
Ms Garcia Albiol will only be considered to have a substantially reduced function capacity in the activity of self-care where there are ‘significant gaps’ in her capacity to maintain her personal health, safety and well-being.[134]
[134] Madelaine at [121].
Ms Garcia Albiol evidence was that she manages her own personal care, hygiene and grooming independently with modified assistance. In this regard she often showers three times a day, she can shampoo and brush her hair and she is also able to clean her teeth.
Ms Garcia Albiol prepares healthy meals and snacks for herself on a daily basis and manages her own health decisions including medical appointments.
I am not persuaded that there are significant gaps in Ms Garcia Albiol’s functional capacity to participate in the activity of self-care.
I am satisfied based on the evidence that Ms Garcia Albiol’s functional capacity to participate in the tasks comprised of the activity of self-care is not substantially reduced.
Self-management
The Operational Guidelines describe self-management as follows:
Self-management – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-today 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
Ms Garcia is able to make and attend medical and allied health appointments both in person and remotely via video.[135]
[135] Transcript, page 51 lines 18-19.
Ms Garcia Albiol is able to order items online including organising the purchase and delivery of groceries.[136] Ms Garcia Albiol gave oral evidence that she is able to make decisions for herself and confirmed that she would feel capable to make basic online payments in the content of using BPAY to manage bills.[137]
[136] Transcript, page 40 line 1.
[137] Transcript, page 93 lines 20-26.
Mr Hetherington stated that he manages ‘all the financials’ in relation to the mortgage, loans, expenses and bills. He describes Ms Garcia Albiol as having independence in her own day-to-day tasks, this including her own basic self-management.[138]
[138] S10, page 1; page 3.
Mr Hetherington’s evidence is that Ms Garcia Albiol struggles to remember things and has a lot of brain fog. He stated that ‘basic communication with day-to-day things is ok but making plans or remember dates or events for the kids schooling she cannot do well.’[139]
[139] S10, page 2.
The evidence of Ms McKeogh is that Ms Garcia Albiol is capable of making personal decisions and decisions on behalf of her family. Also that she is capable of managing her own affairs however is reliant on Mr Hetherington for their ‘joint parental responsibilities’ due to her fatigue.[140]
[140] S5, page 39.
I am satisfied based on the evidence that Ms Garcia Albiol’s functional capacity to participate in the tasks comprised of the activity of self-management is not substantially reduced.

Conclusion

Based on the evidence I am not satisfied that Ms Garcia Albiol’s functional capacity to participate in any of the activities of subsection 24(1)(c) of the NDIS Act is substantially reduced.
Subsection 24(1)(c) of the NDIS Act is not satisfied.

Subsection 24(1)(e): Is Ms Garcia Albiol likely to require support under the National Disability Insurance Scheme for her lifetime?

Having determined that subsection 24(1)(c) of the NDIS Act is not met I am not required to consider the remaining criterion under subsection 24(1)(e) of the NDIS Act. Notwithstanding I make the following observations.
The correct approach in relation to whether Ms Garcia Albiol is likely to require support under the National Disability Insurance Scheme for her lifetime was recently considered in Foster with the following observation:[141]
‘The focus of s24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems.’
[141] [2023] FCAFC 11 at [93].
Ms Garcia Albiol currently receives two hours of gratituous assistance from the QCSS. The evidence is that ordinarily eligibility to access the QCSS is only for persons ‘who do not meet the NDIS criteria’.[142] Having determined that Ms Garcia Albiol does not currently meet the disability requirements for the NDIS Act it is open for her to revisit with QCSS the supports that they may be willing to provide to her. Whilst Ms Garcia Albiol’s impairments do not met the high threshold required to satisfy a substantial reduction in functional capacity for the purposes of the NDIS she is nevertheless impaired to the extent of a ‘significant’ reduction in her functional capacity. The impact of this significant reduction is understandably compounded by her parental responsibilities.
[142] QCSS Practical Manual at subparagraph 2.1.3.
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 200 (two hundred) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins
……………………[SGD]…………………..
21 March 2024
Associate

Dates of hearing:

26 and 27 February 2024

Advocate for the Applicant:

Ms Suzanne Hetherington

Solicitors for the Respondent:

Mr Christopher Kam

(HWL Ebsworth)

Counsel for the Respondent:

Mr Philip Nolan

Dates of hearing:	26 and 27 February 2024
Advocate for the Applicant:	Ms Suzanne Hetherington
Solicitors for the Respondent:	Mr Christopher Kam (HWL Ebsworth)
Counsel for the Respondent:	Mr Philip Nolan