Greville and National Disability Insurance Agency

[2024] AATA 977

Greville and National Disability Insurance Agency [2024] AATA 977 (7 May 2024)

Division:                  NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/6631

Re:Monica-Jayne Greville

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member L Proske

Date:7 May 2024

Place:Adelaide

Pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and decides in substitution that the Applicant meets the access criteria for the National Disability Insurance Scheme as set out in s 21 of the National Disability Insurance Scheme Act 2013 (Cth).

............[sgnd]............................................................

Member L Proske

Catchwords

NATIONAL DISABLITY INSURANCE SCHEME – access to the scheme – disability requirements – whether impairments result in substantially reduced functional capacity to undertake one or more of the six prescribed activities – decision under review set aside and substituted.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

Cases

National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC, 11.
Mulligan v National Disability Insurance Agency [2015] FCA 544.
Re Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Secondary Materials

National Disability Insurance Agency, NDIS Operational Guideline – Applying to the NDIS (Guidelines, 1 February 2024) < align="left">Revised Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth)

REASONS FOR DECISION

Member L Proske

INTRODUCTION

The Applicant has applied to the Tribunal for review of a decision made by the National Disability Insurance Agency (the Respondent) on 3 September 2021. That decision confirmed an earlier decision made by the Respondent that the Applicant did not meet the access criteria for the National Disability Insurance Scheme (the NDIS), as prescribed under the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).[1]

BACKGROUND AND JURISDICTION

[1] All sections referred to in these reasons for decision, including in the footnotes, are sections of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), unless otherwise stated.

1. On 26 April 2021, the Applicant made an access request to the Respondent to become a participant of the NDIS.[2] On 8 June 2021, a delegate of the Chief Executive Officer (the CEO) of the Respondent determined that the Applicant did not meet the access criteria for the NDIS (the original decision).[3] On 29 June 2021, the Applicant requested that the original decision be reviewed by a reviewer.[4] 

   [2] T1, 60-69.

   [3] T1, 22.

   [4] T1, 70. This request was made under s 100(2).

2. On 3 September 2021 a reviewer confirmed the original decision that the Applicant did not meet the access criteria for the NDIS (the internal review decision).[5] On 15 September 2021, the Applicant made an application to the Tribunal for review of the internal review decision.[6] The Tribunal has jurisdiction to review the internal review decision under s 103(1), in combination with s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

   [5] T1, 22-30. This decision was made under s 100(6).

   [6] T1, 4-9

   LEGISLATION AND POLICY

3. The Applicant must meet the access criteria in s 21(1) to become a participant of the NDIS. In summary, s 21(1) provides that a person meets the access criteria if they meet the age requirements in s 22; the residence requirements in s 23; and either the disability requirements in s 24 or the early intervention requirements in s 25.

4. There is no dispute between the parties, and the Tribunal is similarly satisfied on the evidence before it, that the Applicant meets the age and residence requirements in ss 22 and 23. The Applicant does not seek to rely upon the early intervention requirements in s 25.[7] The issue for determination by the Tribunal is therefore whether the Applicant meets the disability requirements in s 24.[8]

   [7] Applicant’s Statement of Issues, Facts and Contentions 15 Nov 2023 (A’s SIFC), [24]; Transcript of Proceedings (Transcript), 12 [40-44].

   [8] The Tribunal has determined that s 24 as amended by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) (Amending Act) applies to this access request: sch 2 item 54 of the Amending Act. This was not contentious at the hearing: Respondent’s Submissions on Amendments to the Act 24 Jan 2024, [5]. Transcript, 6 [23-34]; Applicant’s Outline of Closing Submissions 21 February 2024 (A’s Outline), [2].

5. Section 24 provides:

   24  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 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).

6. Under s 209(1) the Minister may make rules prescribing certain matters. Relevant to this application, the Minister has issued the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which forms part of the legislation.

7. Operational Guidelines published on the NDIS website contain information about what the Respondent considers when making decisions under the legislative framework. These are essentially policy documents. The Operational Guideline ‘Applying to the NDIS’ (the Access Guideline), most recently updated on 1 February 2024, is relevant to this application. The Tribunal will take this into account unless there are cogent reasons not to.[9]

   [9] Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420.

8. The Tribunal notes that the most recently updated Access Guideline was published after the first 2 days of the hearing, but before the hearing resumed for oral closing submissions. The Respondent brought this to the attention of the Tribunal and the Applicant on 4 March 2024. Having compared the current Access Guideline with the previous published version, it is clear there is no substantive difference between them as they relate to this application. Neither party took issue with this at the resumed hearing on 8 March 2024.

   EVIDENCE AND SUBMISSIONS

9. The parties filed with the Tribunal an agreed joint tender bundle. That included the T-Documents filed by the Respondent on 23 September 2021 under s 37 of the AAT Act; supplementary T-Documents filed by the Respondent on 29 January 2022; and evidence filed by the Applicant and the Respondent during the review. Exhibits contained in the joint tender bundle were received into evidence at the commencement of the hearing (marked T1, T2, A1 to A3 and R1 to R4).

10. Three further documents were received into evidence at the hearing. These included a letter from Pete Potgieter dated 14 April 2022 (marked A4), a letter from Dr Graeme Ah Kit dated 14 September 2022 (marked A5), and email communication between the parties’ legal representatives dated 13 and 19 December 2023 (marked A6).

11. The Applicant, Mr Dino Cipriani and Ms Annarie Hildebrand gave oral evidence at the hearing. Whilst giving oral evidence on 29 January 2024, the Applicant disclosed that she had taken medication at 2:00AM due to difficulties sleeping and was having one of her ‘bumpy’ days.[10] The Applicant was therefore given an opportunity to give further oral evidence on 30 January 2024.

    [10] Transcript, 18 [38-40], 24 [34-36], 30 [29].

12. A Statement of Issues, Facts and Contentions was filed by the Applicant and the Respondent on 16 December 2022 and 15 November 2023 respectively. An outline of closing submissions was filed by the Applicant and the Respondent on 26 February 2024 and 4 March 2024 respectively. Counsel for each of the parties made oral closing submissions at the resumed hearing on 8 March 2024.

13. On 8 March 2024 the Applicant filed with the Tribunal and the served on the Respondent a Supplementary Hearing Bundle. This comprised the written outline of closing submissions filed by each party and authorities referred to therein.

    CONSIDERATION

14. The issue for determination by the Tribunal is whether the Applicant meets the disability requirements in s 24(1). Central to the disability requirements in s 24(1) is the concept of ‘impairment’ which is generally understood as involving the loss or damage to a physical, sensory or mental function.[11]

    [11] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), [51].

15. The Tribunal cautioned on days 1 and 2 of the hearing that the disability requirements in s 24 operate on the concept of ‘impairment’, not ‘diagnosis’ or ‘condition’, and asked that the parties remain focused on the concept of ‘impairment’, particularly in closing submissions.[12]  

    [12] Transcript, 7 [31]-[47], 41 [1]-[10].

16. Whilst it is not in contest between the parties that the requirements in ss 24(1)(a) and 24(1)(b) are met, it is apparent from their respective closing submissions that the basis on which they each consider those requirements met differs. Because of this and given the conjunctive nature of the disability requirements in s 24(1), the Tribunal will first consider and make findings relevant to ss 24(1)(a) and 24(1)(b) respectively.

    Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or one or more impairments to which a psychosocial disability is attributable?

17. For the purposes of s 24(1)(a), the Tribunal must be satisfied that the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable.

18. In Mulligan v National Disability Insurance Agency (Mulligan), Mortimer J observed that the term ‘disability’ is used 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.[13] Consistent with that observation, the Access Guideline states:

    ‘When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment … 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’.[14]

    [13] Mulligan, [51].

    [14] National Disability Insurance Agency, NDIS Operational Guideline – Applying to the NDIS (Guidelines, 1 February 2024) (Access Guideline), 7.

19. The Applicant claims to have impairments to which psychosocial disabilities are attributable, arising from bipolar 1 disorder (bipolar), Post Traumatic Stress Disorder (PTSD), anxiety and depression.[15] Those impairments are characterised by the Applicant as a loss of mental function in the sense described by Mortimer J in Mulligan, specifically:

    ‘diminished abilities to regulate her mood, emotions, inhibitions and behaviours and her diminished ability to concentrate, which are particularly observed during acute manic or depressive episodes attributable to bipolar 1 disorder and during panic attacks attributed to PTSD’.[16]

    [15] A’s Outline, [4]; Applicant’s oral closing submissions, 8 March 2024 (A’s CS).

    [16] A’s Outline, [5].

20. The Respondent accepts that the Applicant has an impairment attributable to bipolar and PTSD.[17] However, in oral closing submissions the Respondent stated that they do not necessarily agree with the Applicant’s characterisation of those impairments, and expressed their view that:

    ‘… it is for the Applicant to make his [sic] case before the Tribunal. We say however the impairments which are attributable to those diagnosis the Respondent accepts are PTSD and bipolar and how those impairments are manifest are shown in different ways on the evidence … They are manifested in ways such as inappropriate social behaviour’.

    [17] Respondent’s Outline of Closing Submissions 4 March 2024 (R’s Outline), [3], [4].

21. The Respondent does not accept that there has been a diagnosis of depression or anxiety; nor that depression and anxiety are ‘a part of the bundle of the Applicant’s 'impairments”’.[18] The Respondent expressed a view that Mr Cipriani is the only person whose expertise were established for the purpose of this proceeding; he did not diagnose the Applicant with depression or anxiety; and he gave oral evidence that during his assessment the Applicant did not present as depressed.[19] The Respondent submitted that to make a finding of fact about the nature, extent and duration of those conditions would require the Tribunal to have received some up-to-date expert evidence, of which there is none.

    [18] R’s Outline, [3], [3.3].

    [19] R’s Outline, [3.1-3.2].

22. The Tribunal considers that it would be a distraction to focus its fact finding for the purposes of s 24(1)(a) on what the Applicant has and has not been diagnosed with. As was noted by Mortimer J in National Disability Insurance Agency v Davis (Davis):

    ‘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’.[20]

    [20] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), [69].

23. With respect to the Respondent’s submission that only Mr Cipriani’s expertise were established for the purpose of this proceeding, the Tribunal does not consider that, in and of itself, means more weight should be given to his evidence. The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.[21] Separate to that, if material is capable of having any probative value with respect to a fact in issue, the weight to be given to that material is a matter for the Tribunal.[22] The Tribunal also notes that the Applicant informed the Respondent on 13 December 2023 that whilst they intended to rely on material from Dr McLean and Mr Potgieter, they did not intend calling them to give oral evidence; and asked that the Respondent advise whether they took any issue with that approach.[23] On 19 December 2023, the Respondent advised the Applicant they did not require Dr McLean or Mr Potgieter to attend the hearing to give evidence.[24]

    [21] s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

    [22] Heyward v Minister for Immigration and Citizenship [2009] FCA 1313, [64].

    [23] A6

    [24] A6

24. The Applicant provided a written statement dated 14 November 2023.[25] That statement provides the following details:

    [25] A2, 194-277 (including attachments).

    (a)The Applicant grew up with depression and anxiety amidst a history of trauma which extended into adulthood.[26] She saw a psychiatrist around 1990 who prescribed an anti-depressant to treat depression and sleeping difficulties.[27]

    (b)Following the birth of her son, the Applicant was diagnosed with post-natal depression by Dr Bernardi.[28] She remained under Dr Benardi’s regular care for 3 years, during which time she was prescribed anti-depressants.[29] In November 2001, Dr Sumner diagnosed the Applicant with depressive anxiety disorder.[30]

    (c)In March 2009, Dr Kharwardkar diagnosed the Applicant with depression with suicidal ideation and organised for her to be taken directly to hospital.[31]  This was not the first or last time the Applicant experienced suicidal ideation.[32] She feels she suffered constantly with depression from 2012 to 2017 and has very few memories of that time.[33]

    (d)The Applicant was diagnosed with bipolar around 2013 and was shortly thereafter hospitalised during a manic episode.[34] Since then she has had recurrent manic episodes, during which her mind goes blank and she can’t afterwards recall events.[35]

    (e)In 2017 the Applicant was assigned a mental health social worker, Mr Potgieter, following hospitalisation for a manic episode.[36] As at 14 November 2023, she had attended 87 treatment sessions with him.[37]

    (f)In 2017 she also began consulting with a consultant psychiatrist, Dr McLean, who has treated her for bipolar and severe depression.[38] Dr McLean has prescribed anti-depressants for depression and Seroquel for bipolar.[39] That medication appears to be assisting, however she continues to experience sleep issues and anxiety.[40] Currently Dr McLean also prescribes Valium and Temazepam to assist with sleep, which is a major issue for her.[41]

    (g)The Applicant often sinks into depressive moods, during which she has no energy and no interest in anything.[42] The highs of bipolar come out often as anger, aggressiveness, agitation and anxiety, which she finds distressing.[43] During manic episodes, the Applicant has abundant energy and ‘there are no limits on which I view as permissible’.[44] As at 14 November 2023, the Applicant reported she has moments of both hyperactivity and extremely low moods.[45]

    (h)The Applicant has experienced social anxiety for several years.[46]

    (i)With respect to her employment history, the Applicant describes having held numerous positions over the years in which her mental health negatively impacted her performance.[47] Specifically, she experienced poor concentration, low mood, panic attacks and manic episodes which resulted in poor performance and unacceptable behaviour.[48] The Applicant has not worked since 2012 because she fears she would have a manic episode or that it would trigger her anxiety, depression and lead to suicidal ideation.[49] 

    [26] A2, 195-198.

    [27] A2, 198.

    [28] A2, 198.

    [29] A2, 198-199.

    [30] A2, 199; A2, 210.

    [31] A2, 199-200; A2, 211, 221

    [32] A2, 196, 201, 211, 223, 224.

    [33] A2, 200.

    [34] A2, 200.

    [35] A2, 200.

    [36] A2, 201.

    [37] A2, 201.

    [38] A2, 201.

    [39] A2, 201.

    [40] A2, 201.

    [41] A2, 201-202.

    [42] A2, 202.

    [43] A2, 202.

    [44] A2, 202.

    [45] A2, 206.

    [46] A2, 206.

    [47] A2, 203-205.

    [48] A2, 203-205.

    [49] A2, 205.

25. The Applicant also filed a statement with the Tribunal on 18 November 2022, in which she states she has complex PTSD which hasn’t responded to treatment by Dr McLean and Mr Potgieter, that results in panic attacks, anxiety and depression.[50] She also states that the depression she suffered earlier in life developed into bipolar.[51]

    [50] A1, 189.

    [51] A1, 189.

1. In oral evidence, the Applicant stated she is unaware if she has a manic episode or severe depression.[52] She thinks she was severely depressed from 2012 until 2017, a period in which she describes having been in a complete fog and has little recollection.[53] Her low moods have improved since she has been consulting with Mr Potgieter.[54] During a manic episode she doesn’t sleep much, has lots of energy and the ‘brakes are off’.[55] When reflecting upon a manic episode that involved antisocial interactions with a neighbour, the Applicant stated ‘She deserved it. She deserved it’.[56] She described how she feels after a manic episode, such as worrying ‘Oh dear, what did I do?’; and ‘it effects other people, and also, yes, it’s a regret afterwards of you know … am I going to have enough to eat’.[57]

   [52] Transcript, 17 [9-10].

   [53] Transcript, 17 [10-11], 17 [30-31], 21 [35-36].

   [54] Transcript, 18 [12-13].

   [55] Transcript, 18 [20]; 22 [16-18].

   [56] Transcript, 22 [10]

   [57] Transcript, 17 [21-23]; 20 [5-8].

2. On a number occasions whilst giving oral evidence, the Applicant was asked if she could pinpoint when her last manic episode occurred.[58] The Applicant appeared unable to do so.[59] The Applicant gave evidence that her medication helps to prevent manic episodes, but that it doesn’t always work; and clarified that the main thing she feels Seroquel has helped with is her concentration.[60]

   [58] Transcript, 20 [36-37]; 22 [15]; 22 [20-21]; 22 [26-28]

   [59] Transcript, 22 [29-30]

   [60] Transcript, 21 [15-35].

3. When asked to clarify what she meant when she told Mr Cipriani she had had ‘thousands of manic episodes’, the Applicant explained that during the day her mood can really fluctuate, experiencing both highs and lows.[61] She gave evidence that separate to manic episodes she quite frequently experiences highs, the symptoms of which tend to be anger, aggressiveness, anxiety, aggravation and an inability to concentrate .[62]  

   [61] Transcript, 20 [43-46]

   [62] Transcript, 18 [18-26], 20 [16-29], 24 [2-9].

4. In oral evidence the Applicant said she has ‘bumpy’ days 2 or 3 times a week, which are different to a manic episode.[63] During these bumpy days, she sometimes feels like crying, has difficulty concentrating and finds it hard to complete her routine.[64] The Applicant gave evidence her ‘extremely low moods’ have significantly improved since she began consulting with Mr Potgieter in 2017.[65]

   [63] Transcript, 30 [38-39].

   [64] Transcript, 30 [41-44].

   [65] Transcript, 18 [11-13].

5. Dr Shubhada Kharwadkar has been the Applicant’s treating general practitioner since 2009.[66] A consultation note recorded by Dr Kharwadkar on 6 March 2009 records that the Applicant presented with problematic sleep, depression and suicidal ideation and was taken by ambulance to hospital.[67] On 25 March 2009, Dr Kharwadkar completed a medical report in support of the Applicant’s application for a Disability Support Pension (DSP), in which she records the Applicant’s diagnosis as depression with suicidal ideation, and states that the Applicant was hospitalised because of that condition for 12 days from 6 March 2009.[68]

   [66] A2, 199, 211, 270-277.

   [67] A2, 211-212; A2, 227.

   [68] A2, 214, 218.

6. A GP Management Plan signed by Dr Kharwadkar dated 9 July 2019 records the Applicant’s condition as bipolar, in relation to which the goal was to reduce severity and manage symptoms through medication and consultations with both Mr Potgieter and Dr McLean.[69]

   [69] T1, 31.

7. Dr Kharwadkar completed a BIOMHC Mental Health Assessment on 16 April 2021, at which time the Applicant’s diagnosis was recorded as bipolar; her problems were recorded as a manic phase occurring 6 months prior and managing mood; and her medication was recorded as including Endep and Seroquel.[70] Dr Kharwadkar’s mental status examination of the Applicant in that assessment recorded that her memory was poor, mood liable and sleep disrupted.[71]

   [70] T1, 56.

   [71] T1, 57.

8. In referral letters to consultant psychiatrist Dr Greg McLean dated 22 December 2021 and 14 August 2023, Dr Kharwadkar detailed the Applicant’s medication which included Endep and Seroquel in 2021, and Amitriptyline, Seroquel, Diazepam and Temaze in 2023.[72] The referral letter dated 22 December 2021 refers to the Applicant having recently had a manic episode during which she bought 14 dresses.[73] The referral letter dated 14 August 2023 remains valid at the time of this decision.[74]

   [72] A2, 270-271, 277.

   [73] A2, 276.

   [74] A2, 271.

9. Dr McLean, consultant psychiatrist, has been treating the Applicant since July 2017.[75] The Applicant continues to consult with Dr McLean monthly.[76] In a letter dated 2 June 2021, Dr McLean stated that the Applicant reported having long suffered with recurrent episodes of depression, been treated with antidepressants since aged 32, been diagnosed with bipolar aged 50 and treated with anti-psychosis medications from that time.[77]  Dr McLean opined that the Applicant suffers from bipolar that has severely and significantly adversely affected all aspects of her life, relationships and impaired her ability to work since 2012; and that she is permanently unfit for paid employment.[78] Further, Dr McLean stated that the Applicant had attended regularly for therapy since July 2017 and her treatment has been optimum or maximum that can be reasonably undertaken with regard to her particular circumstances’.[79]

   [75] T1, 19.

   [76] A1, 192; R3, 373.

   [77] T1, 19.

   [78] T1, 19.

   [79] T1, 19.

10. The Applicant has been supported by Mr Pete Potgieter, an accredited clinical social worker, since February 2017.[80] The Applicant continues to consult with Mr Potgieter every 2 to 3 weeks.[81] On the Applicant’s Access Request form, Mr Potgieter stated the Applicant was under psychiatric care, compliant with taking prescribed medication, and has regular counselling and trauma informed interpersonal therapy with him.[82] He stated that both bipolar and PTSD severely impact the Applicant’s psychosocial functioning.[83]

    [80] T1, 54.

    [81] A2, 206; R3, 371.

    [82] T1, 49.

    [83] T1, 49.

11. In a letter dated 14 April 2021, Mr Potgieter stated that the Applicant presents with a DSM-V diagnosis of severe bipolar with her most recent episode being manic.[84] In a letter dated 2 July 2021, Mr Potgieter noted that the Applicant had in the past 6 months experienced 2 episodes of mania during which her behaviour was antisocial; and that the manic phase of bipolar repeats in her life again and again, months apart.[85]  He voiced concern that she lives alone and is socially isolated, so there is no-one to support her or to help her get medical treatment and to ensure her and her neighbour’s safety. Mr Potgieter described the Applicant’s behaviour when manic as follows:

    ‘When she becomes manic Monica acts impulsively and she shops compulsively online. She has more recently thrown bottles of passata and korma sauce at her neighbours, thrown eggs and a banana at a neighbour’s car and she has also put a whole fish on her neighbour’s car’s back window. She would write insulting letters to her neighbours. She would also think of ways to physically harm her neighbours when they trigger her. She becomes agitated and she acts illogically.’[86]

    [84] T1, 54.

    [85] T1, 20-21.

    [86] T1, 20.

12. Mr Potgieter provided a further letter dated 9 December 2021, in which he stated that the Applicant presents with ongoing symptoms of PTSD, and fluctuating symptoms of bipolar.[87] Mr Potgieter further stated that the Applicant has previously been hospitalised to recover and stabilise during manic phases of her bipolar, which vary in length and are stabilised within weeks.[88]  Mr Potgieter’s most recent letter noted that the Applicant scored 6/20 when she completed the Altman Self-Rating Mania Scale (ASRM) on 21 September 2023, a score which Mr Potgieter suggests likely indicates manic symptoms.[89] That letter also states that when manic, the Applicant acts impulsively in a dissociative state of agitation and provides examples of her behaviour.[90]

    [87] T2, 174.

    [88] T2, 174.

    [89] A2, 268.

    [90] A2, 268-269.

13. The Tribunal also has before it several assessments completed by the Applicant and scored by Mr Potgieter; as well as assessments completed by Mr Potgieter in relation to the Applicant.[91] These assessments capture the Applicant’s own experience and Mr Potgieter’s observations of her during discreet points in time.

    [91] T1, 32-41; T2, 181-188; A4.

14. The Tribunal also has before it a consultation record of Dr Angela Sumner dated 2 November 2001, which records a diagnosis of depressive anxiety disorder and having prescribed Cipramil;[92] and a Discharge Referral from a hospital dated 16 July 2015 which confirms she was admitted on 11 July 2015 due to suicidal ideation and was to be discharged on 13 July 2015.[93]  On that Discharge Referral, it also records that the Applicant reported having had anxiety attacks since childhood and described a number of panic symptoms.[94]

    [92] A2, 210.

    [93] A2, 231-232.

    [94] A2, 23.

15. During the review, the Respondent obtained an independent medical report from Mr Dino Cipriani, clinical psychologist. Mr Cipriani assessed the Applicant on 13 September 2022.[95] That assessment involved interviewing and testing conducted over 5 hours.[96]

    [95] R3, 358.

    [96] R3, 360.

16. In his report, Mr Cipriani states the Applicant was diagnosed by Dr McLean with bipolar, following a period of depression lasting 6 years.[97] Mr Cipriani also noted the documented history of manic episodes since being diagnosed with bipolar and euthymic periods between manic episodes.[98] He recorded the Applicant’s self-reported history, including her statement that ‘she has had “thousands” of manic episodes’ which varied in length from a few days to a few weeks.[99] When pressed to elaborate on what she meant by that statement, Mr Cipriani recorded that the Applicant said there is a difference between hypomania and hypermania, which is a constant cycle for her, and that hypermanic episodes occur several times a year.[100]

    [97] R3, 376.

    [98] R3, 362.

    [99] R3, 363.

    [100] R3, 363, 377.

17. Mr Cipriani noted that the Applicant’s PTSD was evident at examination when she had a panic attack triggered by memories.[101]

    [101] R3, 379

18. Mr Cipriani concluded that the Applicant’s functioning has been interrupted by manic-depressive episodes associated with bipolar and that she would require support with activities of daily living during manic or depressive episodes, which are intermittent.[102] Mr Cipriani recommended that Dr McLean review whether Seroquel remains an appropriate treatment for the Applicant’s bipolar; and clinical psychological trauma-based treatment to address traumatic memories which may trigger anxiety attacks.[103] He also suggested the Applicant may respond to behavioural activation for depression.[104] 

    [102] R3, 379.

    [103] R3, 379.

    [104] R3, 379.

19. In his oral evidence, Mr Cipriani stated that whilst he did not diagnose the Applicant with PTSD and could not diagnose PTSD on the basis of the PCL-5 he administered during the assessment, the PCL-5 did support the diagnosis and he wouldn’t dispute the diagnosis of PTSD.[105] Similarly, in oral evidence Mr Cipriani stated that whilst it was not him who diagnosed the Applicant with bipolar disorder, he accepted that diagnosis in his report and would agree with that diagnosis.[106]

    [105] Transcript, 61 [28], [31-32].

    [106] Transcript, 55 [11-14].

20. At the hearing, Mr Cipriani was asked to explain what he had meant when he reported that the periods between the Applicant’s manic episodes were ‘euthymic’.[107] Mr Cipriani explained that ‘‘euthymic’ would mean stable mood, not high, not low … just a normal mood’.[108]

    [107] Transcript, 52 [40-45].

    [108] Transcript, 52 [45-47].

21. Mr Cipriani accepted that the Applicant’s manic episodes fluctuate in intensity.[109] He elaborated further in relation to this, stating that bipolar 1 would be a true manic episode and bipolar 2 would involve a lesser degree of mania.[110] He stated the Applicant may have both.[111] He gave further evidence that episodes associated with the Applicant’s bipolar would involve a mixture of depressive and manic episodes.[112] He confirmed what was reported to him was that manic episodes occur 2 to 3 times a year, and their occurrence is unpredictable.[113]

    [109] Transcript, 53 [9].

    [110] Transcript, 53 [11-13].

    [111] Transcript, 53 [13-14].

    [112] Transcript, 53 [17-20].

    [113] Transcript, 62 [1-4].

22. With respect to the panic attack that the Applicant experienced during her assessment with Mr Cipriani, Mr Cipriani gave oral evidence that it lasted a few minutes, during which time he observed hyperventilation and anxiety.[114] He opined this seemed to by a typical panic attack.[115]  Mr Cipriani gave further oral evidence that:

    ‘PTSD would affect – for example, bringing up the past, which she is pretty sensitive to and that’s what caused the panic attack, and it would be something that she would avoid. Avoidance is part of PTSD and it could contribute to avoiding people, which she does do, but that’s also maybe part of her personality.’.[116]

    [114] Transcript, 61 [13-17].

    [115] Transcript, 61 [16].

    [116] Transcript, 64 [37-41].

23. During the review, the Respondent also obtained 2 independent medical reports from Annarie Hildebrand, occupational therapist. Ms Hildebrand assessed the Applicant on 28 January 2022.[117] That assessment involved interviewing, a functional assessment and standardised assessments conducted over 3 hours.[118]

    [117] R1, 292.

    [118] R1, 295-296.

24. In her report, Ms Hildebrand noted that the Applicant described a history of complex trauma, depression and insomnia;[119] episodic mania when she has lots of energy, feels agitated, and can’t sit still or fall asleep;[120] episodes of depression which were estimated to occur every 2 months;[121] and difficulty with concentration, irritability, aggressive behaviours and feeling easily overwhelmed.[122] In her supplementary report, Ms Hildebrand reported that:

    ‘As part of her psychiatric diagnosis or Bipolar Affective Disorder she experiences episodes of mood swings that can cause unpredictable changes in behaviour. Ms Greville advised that it causes her high levels of distress as she is unable to control her behaviours which are compounded by her lack of insight.’[123]

    [119] R1, 296-297.

    [120] R1, 298.

    [121] R1, 302.

    [122] R1, 297

    [123] R2, 336.

25. The Tribunal finds that the Applicant’s reported history to treaters, independent medical experts and the Tribunal has been relatively consistent over time. The Tribunal also finds that contemporaneous evidence before it, such as Dr Sumner’s consultation note, Dr Kharwadkar’s report, assessment and consultation notes; and discharge summaries from public hospitals; corroborate significant aspects of the Applicant’s self-reported history. Whilst at times during her oral evidence the Applicant appeared to struggle to answer questions put to her and to remain on point, this did not seem to be intentionally evasive nor contrived – indeed the Tribunal found the Applicant to be an honest witness who, despite finding the hearing process challenging, appeared to be doing her best to address questions put to her, without embellishment.  

26. Whilst Dr McLean did not provide oral evidence at the hearing, the Tribunal accepts that as a Fellow of the Royal Australian & New Zealand College of Psychiatrists, and a consulting psychiatrist at St Vincent’s Clinic, he is suitably qualified to have provided the opinion as outlined in his letter dated 2 June 2021. Further, the Tribunal notes that as at the date of that letter, Dr McLean had been regularly treating the Applicant for approximately 4 years, a not insignificant period.

27. Although Mr Potgieter did not provide oral evidence at the hearing, the Tribunal accepts that he has been regularly providing therapeutic support to the Applicant since 2017. As someone who has had regular contact with the Applicant over many years, the Tribunal considers he has been well placed to observe and report on the Applicant’s presentation and experience over time. To that extent, the Tribunal considers Mr Potgieter’s evidence to be of significant assistance. To the extent that Mr Potgieter opines on the Applicant’s ‘diagnosis’, the Tribunal has treated that evidence with caution in circumstances where he not a medical practitioner or clinical psychologist.

28. Having considered the evidence before it, and the weight that can be appropriately given to that evidence, the Tribunal finds as follows:

    a)    The Applicant has, for many years, suffered with depression and anxiety. At times the Applicant’s depression has been accompanied by suicidal ideation and required hospitalisation. For over 2 decades, the Applicant has been treated with anti-depressants. That treatment remains ongoing. Despite treatment, the Applicant continues to experience episodic depression and anxiety.

    b)    The Applicant lives with PTSD and bipolar. For the Applicant, these conditions manifest as a reduced ability to concentrate, and to regulate her emotions, mood and behaviour. These impairments fluctuate in intensity and reduce the Applicant’s functioning. The Applicant describes having ‘bumpy’ days, which the Tribunal finds are those days when these impairments are more intense, such as when she experiences highs. These bumpy days occur 2 to 3 times a week. In making these findings, the Tribunal has preferred evidence provided by the Applicant, and those treaters who have observed her over many years, to Mr Cipriani’s evidence that the periods between the Applicant’s manic-depressive episodes are euthymic.

    c)    The Applicant’s functioning has also been interrupted by intermittent manic-depressive episodes associated with bipolar, which fluctuate in intensity; and panic attacks associated with her PTSD.  

    d)    At their most acute, the Applicant’s manic episodes have required inpatient psychiatric treatment. In oral evidence the Applicant struggled to identify with any particularity when she last experienced an acute or severe manic episode. This is not entirely surprising in circumstances where the Applicant may not herself recognise when she is experiencing a manic episode, nor recall what occurred during such an episode. On the material before it, including Dr Kharwadkar’s letter to Dr McLean dated 22 December 2021, the Tribunal finds that the Applicant’s last recorded acute or severe manic episode occurred in late 2021. Despite this, the Tribunal does not accept the Respondent’s submission that the Applicant’s manic episodes are now ‘under control’.[124]

    e)    The Tribunal finds that the Applicant continues to experience manic episodes, albeit of less intensity than those which have resulted in hospitalisation or seen her, for example, throw passata at a neighbour’s balcony. In making this finding, the Tribunal has noted the Applicant’s lengthy history of intermittent manic episodes. These persisted, with an acute or severe manic episode having been recorded in late 2021, despite the Applicant having been routinely treated by Dr McLean and Mr Potgieter from 2017. Treatment provided by Dr McLean has consistently included anti-depressants and anti-psychosis medications. The Tribunal has given weight to Mr Cipriani’s acceptance in oral evidence that the Applicant’s manic episodes fluctuate in intensity; and the Applicant’s oral evidence that whilst Seroquel helps to prevent her manic episodes, it doesn’t always work.[125] The Tribunal has also given weight to Mr Potgieter’s observations of the Applicant’s presentation and behaviour over time; and in particular his most recent letter dated 21 September 2023 in which he makes no suggestion that the Applicant’s manic episodes have ceased, or that they are under control. On the contrary, in that letter Mr Potgieter suggests the Applicant’s Altman Self-Rating Mania Scale (ASRM) score on 29 September 2023 likely indicates manic symptoms and provides examples of how she behaves when manic. A number of those examples are not mentioned in any of the other material before the Tribunal, which suggests they may have occurred more recently.

    f)     With respect to the frequency with which the Applicant currently experiences manic episodes, the Applicant’s written and oral evidence lacked particularity. As has already been noted above, this is not entirely surprising in circumstances when she may not recognise when she is having a manic episode or recall what occurred during such an episode. In July 2021 Mr Potgieter reported that the Applicant’s manic phase of bipolar repeats in her life again and again, months apart.[126] In his written report, Mr Cipriani recorded that at the time of his assessment in September 2022, the Applicant reported that her manic episodes occur several times a year;[127] whilst in oral evidence, Mr Cipriani said that what was reported to him was that manic episodes occur 2 to 3 times a year.[128] The Applicant’s oral evidence is that as at January 2024, her medication helps to prevent her manic episodes, but doesn’t always work. Based on this evidence, the Tribunal finds that the Applicant currently experiences manic episodes approximately 2 times a year.

    g)    With respect to depressive episodes associated with her bipolar, Ms Hildebrand reported in February 2022 that the Applicant’s episodes of depression were estimated to occur every 2 months. The Applicant’s written evidence is that she often sinks into depressive moods. She did not clarify in oral evidence how frequently she experiences depressive episodes; however, she did state that her extremely low moods have significantly improved since 2017. The Tribunal has taken that statement within the context of the preceding 5 years, during which the Applicant has consistently described having been depressed most of the time.  On the material before it, the Tribunal finds that the Applicant’s depressive episodes associated with her bipolar occur at least 3 times a year.

    h)    Irrespective of whether the Applicant’s episodic depression and anxiety are a standalone diagnosis, or ways in which her bipolar and PTSD manifest, the Tribunal finds episodic depression and anxiety are impairments that the Applicant has; and that these affect her functioning.

    [124] R’s Outline, [10].

    [125] Transcript, 21 [21-

    [126] A2, 209.

    [127] R3, 363, 377.

    [128] Transcript, 62 [2-4].

1. The Applicant’s impairments have been identified as a reduced ability to concentrate and to regulate her emotions, mood and behaviour; episodic mania; episodic depression; anxiety and panic attacks. These psychosocial impairments reduce the Applicant’s capacity to function and participate in daily life, and therefore the Applicant has a disability within the meaning of s 24(1)(a). Accordingly, the Tribunal is satisfied that the Applicant has impairments to which a psychosocial disability is attributable and the requirement in s 24(1)(a) is met.

   Is the impairment or impairments likely to be permanent?

2. For the purposes of s 24(1)(b), the Tribunal must be satisfied that the impairment or impairments are, or are likely to be, permanent.

3. Paragraphs 5.4 to 5.7 of the Access Rules provide that:

   5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

   5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.

   5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

   5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

4. The Access Guideline states:

   We need evidence that you’ll likely have your impairment for your whole life.

   You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity. Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.

   Even when your condition or diagnosis is permanent, we’ll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, still being treated, or if there are remaining treatment options.

   Generally, we’ll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued. …

   … Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.

   Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments that are:

   ·known and available 

   ·appropriate for you and your impairment

   ·evidence-based – that is, there’s proof they are likely to be effective.

   The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle. So, for example, conditions such as obesity are unlikely to be found to be permanent.

   If you’re still undergoing or have recently had treatment, we’ll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent.

   In some situations, it may be clear your impairment is likely to be permanent while you’re still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it’s clear you’ll have a permanent impairment.

   You might still have a permanent impairment, even if its effects may change over time. For degenerative impairments, or those that get worse over time, we consider them permanent if treatment isn’t likely to help or improve the impairment’s effects.

5. Within the context of s 24(1)(b), a permanent impairment is an impairment which is of an enduring nature.[129] In National Disability Insurance Agency v Davis (Davis) Mortimer J considered the meaning of ‘known, appropriate and available’ within the context of Rule 5.4 and explained the word ‘known’ means a treatment which can be identified by an Australian medical professional as suitable for a person’s particular impairment;[130] the word ‘available’ means available to a particular individual;[131] and the word ‘appropriate’ means a treatment which has a capacity to ‘remedy’  the impairment and is suitable for the particular individual to undergo.[132] Mortimer J further explained that the word ‘remedy’ in Rule 5.4 means something approaching a removal or cure.[133]

   [129] Davis, [85], [130]

   [130] Davis, [137]

   [131] Davis, [138]

   [132] Davis, [137]

   [133] Davis, [136].

6. Having considered the material before it, the Tribunal accepts that the Applicant has experienced each of the impairments identified at paragraph [54] for many years. Whilst the nature of the Applicant’s impairments is such that they fluctuate or are episodic, they have nevertheless persisted. The Tribunal also accepts that the Applicant is compliant with her treatment regime.

7. Dr McLean’s evidence is that despite the Applicant having been treated with anti-depressants and anti-psychosis medication for many years, her bipolar 1 disorder has severely and significantly adversely affected all aspects of her life, relationships and impaired her ability to work since 2012.[134] Dr McLean opined that the Applicant’s treatment has been optimal or maximum that can be reasonably undertaken with regards to her particular circumstances.[135] In his letter dated 14 April 2021, Mr Potgieter states that the regular counselling and trauma informed interpersonal therapy he provides to the Applicant is to prevent her level of functioning from deteriorating any further and it is not expected to bring about improvement.[136]

   [134] T1, 19.

   [135] T1, 19.

   [136] T1, 54.

8. In oral evidence Mr Cipriani stated that bipolar is a condition for which there is no cure, but there are treatments.[137] Mr Cipriani recommended that Dr McLean review whether Seroquel remains an appropriate treatment for the Applicant’s bipolar; and clinical psychological trauma-based treatment to address traumatic memories which may trigger anxiety attacks.[138] Mr Cipriani also suggested the Applicant may respond to behavioural activation for depression.[139]  Mr Cipriani did not suggest any such treatment options would likely remedy any or all of the Applicant’s impairments.

   [137] Transcript, 56 [19-25].

   [138] R3, 379.

   [139] R3, 379.

9. The Tribunal finds that that the nature of the Applicant’s impairments is such that they are enduring. The Tribunal also finds there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy any or all of the Applicant’s impairments. Accordingly, the Tribunal is satisfied that the Applicant’s impairments are permanent and the requirement in s 24(1)(b) is met.

Do the Applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care, self-management?

1. The parties have each identified the requirement in s 24(1)(c) to be the requirement on which this application turns and the main issue for determination by the Tribunal.[140] Section 24(1)(c) requires that the Applicant’s impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care and/or self-management.

   [140] A’s SIFC, [25]; R’s Outline, [5], [5.3].

2. Paragraph 5.8 of the Access Rules provides that:

   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, 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. 

3. If the criteria in paragraph 5.8(a), (b) or (c) of the Access Rules is met, then a person is mandatorily included within the cohort of people with substantially reduced functional capacity for the purposes of s 24(1)(c).[141] However, as was noted by Mortimer J in Mulligan, the statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.[142] In this sense, the concept of ‘substantially reduced functional capacity’ is not exhaustively defined by paragraph 5.8 of the Access Rules.[143]

   [141] Mulligan, [76].

   [142] Mulligan, [76].

   [143] Mulligan, [76].

4. The Access Guideline states:

   Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks. 
   These disability-specific supports include:

   • a high level of support from other people, such as physical assistance, guidance, supervision or prompting. 
   • assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.[144] 

   To help us decide if you’re eligible, we need to know your capacity and where you need more help. We get this information from your NDIS application.

   If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.

   We consider how you’re involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day-to-day life.

   Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.

   [144] Access Guideline, 9.

5. When considering whether it is satisfied the Applicant meets the requirement in s 24(1)(c), the Tribunal must make a functional, practical assessment of what the Applicant can and cannot do.[145] That assessment involves consideration of the full range of tasks or actions that comprise each of the prescribed activities.[146] The Applicant need only have substantially reduced functional capacity in relation to one of the prescribed activities.[147]

   [145] Mulligan, [56].

   [146] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), [64].

   [147] Mulligan, [56].

6. Neither the Act, nor the Access Rules, define what comprises each of the activities referred to in s 24(1)(c). The Access Guideline however provide non-exclusive content to the range of tasks and actions that comprise each of the prescribed activities.[148]

   [148] Foster, [63].

7. The Applicant claims her impairments substantially reduce her functional capacity to undertake one or more of the activities prescribed in s 24(1)(c). It was suggested that this conclusion can be reached in one of two ways, both of which apply s 24(1)(c) directly rather than paragraph 5.8 of the Access Rules.[149] Firstly, it was submitted that given the severity of the impairments during acute periods, the Tribunal should consider their functional impact on the prescribed activities, particularly social interaction and self-management, to be substantial in all of the circumstances, even when the effect of these episodes is balanced against the Applicant’s less-diminished functioning when she is ‘well’.[150] In the alternative, it was submitted that viewed holistically and on the basis of a practical judgment, the Applicant’s episodic impairments substantially reduce the Applicant’s functional capacity to undertake the activity of social interaction.[151]

   [149] A’s Outline, [10].

   [150] A’s Outline, [11].

   [151] A’s Outline, [12].

8. The Respondent submits that the Applicant’s impairments attributable to her bipolar disorder and PTSD do not result in a substantial reduction in functional capacity; and that the evidence does not rise to this level, whether it be looked at through the Applicant’s ‘acute’ or ‘holistic’ approach.[152]

   [152] R’s Outline, [9].

9. The Tribunal has found that the Applicant’s impairments are episodic or fluctuating in intensity. It follows that the Applicant’s functional capacity in relation to activities of daily living may vary. In considering the extent to which the Applicant’s impairments impact her functional capacity to undertake activities of daily living, the Tribunal will consider the Applicant’s ability over time, taking into account her ups and downs.

10. In view of how the Applicant framed their claim to meet the requirement in s 24(1)(c), the Tribunal will firstly consider whether her impairments result in substantially reduced functional capacity to undertake the activity of social interaction. If the Tribunal finds the requisite threshold is not met in relation to that activity, it will proceed to consider whether the Applicant’s impairments result in substantially reduced functional capacity to undertake the activities of self-management, communication, learning, mobility or self-care.

    Social Interaction

11. The Access Guideline suggest that the activity of ‘social interaction’ is comprised of the following, non-exclusive, content:

    ‘Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.’[153]

    [153] Access Guideline, 9

12. The Applicant’s evidence is that she has two friends - a friend in Melbourne with whom she shares text messages and speaks on the phone monthly; and a friend in London with whom she speaks fortnightly via WhatsApp.[154] Those relationships have endured for 38 years and 55 years respectively.[155] She had no contact with her adult son since 2004.[156]

    [154] Transcript, 25 [23-46].

    [155] Transcript, 25 [23-46].

    [156] A2, 198.

13. The Applicant’s evidence is that she attends the gym every day and considers the people there to be acquaintances rather than friends.[157] She will have a brief conversation with people at the gym and these brief interactions are the extent of her socialising.[158] The Applicant gave oral evidence ‘socially – so it’s either just them and Pete [Potgieter], or otherwise I don’t socialise. I – it’s – that’s too dangerous’.[159]

    [157] Transcript, 24 [44], 25 [8-9].

    [158] Transcript, 25 [15-21].

    [159] Transcript, 25 [18-21].

14. The Applicant gave oral evidence that she previously attended art classes.[160] She thinks this was around 2015.[161] She said she was often late to those classes and whilst on some days she would produce something in class, on other days she didn’t manage to do anything other than attend.[162]

    [160] Transcript, 26 [3-13].

    [161] Transcript, 26 [3-5].

    [162] Transcript, 26 [6-24].

15. In a statement filed with the Tribunal on 18 November 2022, the Applicant states she is ‘wary of people and prefer[s] to avoid social situations unless they are time limited such as classes at the gym’.[163] In her statement dated 14 November 2023, the Applicant stated that she avoids people and feels safest on her own.[164]

    [163] A1, 189.

    [164] A2, 205.

16. The Applicant uses social media.[165] She gave evidence that she will sometimes interact on social media with people who have posted things of interest to her, such as the war in Palestine.[166] With respect to one such interaction, she gave evidence that ‘what happens is I’m very, very sensitive – like I had contact with a Palestinian woman and she’s – when the contact dropped … I got really depressed’.[167]

    [165] Transcript, 29 [7-19].

    [166] Transcript, 25 [5-30].

    [167] Transcript, 25 [7-9].

17. The Applicant gave oral evidence that she keeps a very strict daily routine and ‘[i]f that routine gets messed up, then I’m – yes, it’s – I sort of get – fall apart’.[168]

    [168] Transcript, 24 [32-34].

18. The Applicant’s statement dated 14 November 2023 details her employment history, which is replete with instances where her impairments resulted in incongruous behaviour, difficult relations with supervisors, poor performance and performance management.[169]  On numerous occasions her employment was terminated for inappropriate behaviour or poor performance.[170] She relies on a DSP, having not undertaken paid employment since 2012.[171] She hasn’t joined the workforce since 2012 because she fears she would have a manic episode and lose her job or that it would trigger her anxiety, depression which could lead to suicidal ideation.[172] The Applicant’s oral evidence was that she would be open to returning to paid employment, however that would need to be in a supportive environment, with clear instructions and positive feedback, and with a person she could turn to for support when she is not coping.[173]

    [169] A2, 203-205.

    [170] A2, 204-205.

    [171] A2, 205.

    [172] A2, 205.

    [173] Transcript, 46 [10-31].

19. Dr McLean, in his letter dated 2 June 2021, opined that the Applicant’s bipolar has severely and significantly adversely affected all aspects of her life, relationships and impaired her ability to work since 2012.[174] He further opined that the Applicant is permanently unfit for paid employment.[175]

    [174] T1, 19.

    [175] T1, 19.

20. In the Access Request – Supporting Evidence Form dated 14 April 2021, Mr Potgieter stated that the Applicant needs assistance from other persons in relation to the activity of social interaction.[176] He elaborated on this as follows:

    ‘Monica requires prompting and skills training by an allied health provider to be able to form friendships and to engage in social interaction and community events. She is socially isolated and she avoids socialising. She is at times overwhelmed with emotions and she requires treatment to be able to regulate her emotions.’[177]

    [176] T1, 52.

    [177] T1, 52.

21. In his letter dated 2 July 2021, Mr Potgieter states the Applicant had in the past 6 months had two manic episodes, during which she exhibited antisocial behaviour.[178] He suggests a behaviour management plan may protect her and her neighbours from harm.[179] He describes the Applicant’s behaviour when manic as follows:

    ‘She has more recently thrown bottles of passata and korma sauce at her neighbours, thrown eggs and a banana at a neighbour’s car and she has also put a whole fish on her neighbour’s car’s back window. She would write insulting letters to her neighbours. She would also think of ways to physically harm her neighbours when they trigger her. She becomes agitated and she acts illogically … and she isolates even more than usual’.[180]

    [178] T1, 20.

    [179] T1, 20.

    [180] T1, 20.

22. In his letter dated 9 December 2021, Mr Potgieter suggests the Applicant’s psychosocial functioning in the area of social interaction is severely impacted.[181] He elaborated on this as follows:

    a)    The Applicant’s functional capacity to interact socially is significantly impacted on a day-to-day basis between manic episodes.[182]

    b)    She doesn’t have family or friends that she sees regularly. She has phone contact with her mother every few weeks; and no contact with her adult son. The thought of seeing her mother is distressing. She will briefly greet neighbours in passing but does not invite them into her home and will not readily go to theirs. She left a birthday cake at a neighbour’s front door but did not knock as such contact would be distressing.[183]

    c)    She avoids social interaction and becomes emotionally dysregulated if invited to social events. Any activity outside her routine is distressing, and she has no routine for socialising.[184]

    d)    She has not had an intimate relationship for over a decade, and the thought of someone living with her and making emotional demands on her is distressing.[185]

    e)    She does not participate in any social activities other than gym classes. She finds the exercise helpful and the social interaction stressful. She does not utilise the gym as an opportunity to socialise or to make acquaintances. She can be rigid in her use of floor space and can injure other people in her class if they move into her space as she does not move away.[186]

    f)     She has no support to engage in social activities. She requires prompting and support from another skilled person to be able to engage in social interaction.[187]

    [181] T2, 173.

    [182] T2, 174.

    [183] T2, 175.

    [184] T2, 175.

    [185] T2, 175.

    [186] T2, 175.

    [187] T2, 175.

1. In the above letter Mr Potgieter states he completed the Abbreviated Life Skills Profile on 29 November 2021 and the Health of the National Outcome Scale on 6 December 2021.[188] The former test related to the preceding 3 months, and the Applicant returned a score of 10/12 for the social withdrawal subsection and 9/12 for the anti-social subsection. A score of 0 represents good functioning and a score of 12 represents greater dysfunction.[189] The latter test related to the preceding 2 weeks, and the Applicant presented with moderately severe problems related to being overactive, aggressive, disruptive and agitated; severe problems related to stressful events and traumas where she became emotionally dysregulate when faced with social interaction that reminded her of past traumatic events, severe problems related to relationships where she isolated herself from social interaction; and substantial problems with occupation and activities.[190] Mr Potgieter also scored the World Health Organisation Disability Assessment Schedule 2.0 that the Applicant completed on 29 November 2021, in which her answers related to the preceding 30 days.[191] She scored 21/25 in relation to getting along with people and 36/40  in relation to participation in society, indicative of severe difficulties.

   [188] T2, 176.

   [189] T2, 176.

   [190] T2, 176-177.

   [191] T2, 177.

2. In his letter 14 April 2022, Mr Potgieter states that the Applicant experiences significant barriers to participating socially and economically in society on an ongoing basis.[192] On the basis a Craig Hospital Inventory of Environmental Factors Version 3.0 April 2001 (CHIEF) assessment, he opined the Applicant’s functional capacity is continuously limited by her disability and is not only impacted during the manic phases of bipolar.[193] In his letter dated 21 September 2023, Mr Potgieter details how the Applicant behaves when manic, which includes walking around a hospital ward naked, banging on the wall of her unit with a saucepan when she hears noises from another unit, writing letters to neighbours which include foul language and carrying a knife for protection.[194]

   [192] A4, 1.

   [193] A4, 1.

   [194] A2, 268-268.

3. In her report dated 21 February 2022, Ms Hildebrand recorded the following:

   a)    The Applicant reported difficulty with forming and maintaining friends describing being oversensitive towards comments from people and then withdrawing to avoid further contact. She also reported difficulty with concentration, irritability, aggressive behaviour and feeling easily overwhelmed which resulted in difficulties with maintaining employment and close relationships.[195]

   b)    The Applicant provided a history of failed relationships, including having no contact with her adult son. She described difficulty making friends and maintaining friendships due to others not understanding her choices. She indicated feeling stressed and anxious when people interfered in her planned activities; and that she won’t answer the phone or open her front door if people called at the ‘wrong time’.[196]

   c)    The Applicant described avoiding people, not knowing when people will upset her and that she feels more relaxed on her own.[197] She described incidences of conflict with neighbours.[198]

   d)    The Applicant also described incidences where she can become aggressive on buses such as feeling angry when people place their bags on a seat or sit across 2 seats, in relation to which the Applicant stated ‘I will step on toes or throw the bags over’.[199]

   e)    The Applicant reported feeling very depressed at times, and that Mr Potgieter is sometimes the only person she speaks to for 2 weeks.[200]

   f)     She has a friend in Melbourne that she phones 1-2 times a month and remains in contact with her mother and brother in the UK by phone.[201]  ;

   g)    The Applicant stated that ‘everything goes to pieces if I don’t stick to my routine’ and described feeling stressed and anxious if people interfered in her planned routine and will therefore avoid them.[202]

   [195] R1, 297.

   [196] R1, 299.

   [197] R1, 299, 300.

   [198] R1, 300.

   [199] R1, 300.

   [200] R1, 304.

   [201] R1, 300.

   [202] R1, 300, 304.

4. In her report, Ms Hildebrand expressed a view that the Applicant lacks insight with regards to her description of anti-social behaviour, noting that with regards to her description of her aggressive behaviour on the bus towards other passengers she indicated that she was in the right.[203] This was similarly observed by the Tribunal when a particular incident where the Applicant had behaved unacceptably towards a neighbour was raised at the hearing, in response to which the Applicant gave oral evidence ‘She deserved it. She deserved it’.[204] Ms Hildebrand concluded that the Applicant requires support for emotional regulation and to modify her aggressive anti-social behaviours, to engage in social and creative activities, and to moderate her routine.[205] Ms Hildebrand recommended:

   ‘Intermittent to high assistance required for daily emotional assistance and support during episodes of mania and depression. During times when Ms Greville is stable weekly support is required to problem solve situations and develop skills for emotional regulation. Provision of a behaviour support plan and treatment is recommended to enable Ms Greville to develop social skills, manage her behaviours and engage in a balanced lifestyle and manage anti-social behaviour’.[206]

   [203] R1, 304.

   [204] Transcript, 20 [10]..

   [205] R1, 300.

   [206] R1, 300.

5. With respect to occupational activities, Ms Hildebrand reported that the Applicant has been unemployed since 2013 and in receipt of a DSP.[207] Ms Hildebrand’s report states that the Applicant reported to her that she would like to return to work however ‘described difficulties with concentration, organisation, following instructions, participating and contributing to meetings and feeling easily overwhelmed’.[208] Ms Hildebrand noted Dr McLean’s opinion that the Applicant was permanently unfit for work; and made no recommendation in relation to any support that would help her to foster her functional capacity with respect to occupational activities.[209] In her supplementary report, Ms Hildebrand opined that the Applicant is unable to work and remain in employment.[210]

   [207] R1, 304.

   [208] R1, 304.

   [209] R1, 304.

   [210] R2, 336.

6. In oral evidence Ms Hildebrand explained that with social interaction:

   ‘she’s very isolated and … very rigid in the way she engages with the community, and that will involve getting on a bus, going to, for example, to the gym and coming back home, but there’s no opportunity for socialising with other people, there’s no reasonable interaction with other people. It’s very much strictly following a routine, and anything that comes in the way may cause some behavioural outbursts. So, yes, it’s not just social; it’s also community access, it’s also getting – accessing – forming friendships, maintaining friendships and so forth’.[211]

   [211] Transcript, 71 [37-46].

7. Ms Hildebrand further stated in oral evidence that she concluded the Applicant lacked insight into her behaviour; didn’t recognise when she is becoming manic; and has difficulty problem solving and putting things in place to reduce conflict.[212]  She suggested that in between manic episodes, weekly support would help manage the Applicant’s behaviour; skill-building in relation to forming and maintaining a relationship with somebody, monitoring her behaviours and mood and problem solving.[213]  During manic episodes, Ms Hildebrand suggested the Applicant’s ability to have social interactions would depend on how the manic episode presents; and that support may help manage relationships when the Applicant is manic so that there is more sympathy towards her.[214]

   [212] Transcript, 72 [7-11].

   [213] Transcript, 72 [5-16].

   [214] Transcript, 72 [37-44].

8. In his report dated 5 October 2022, Mr Cipriani recorded that the Applicant reported having a friend in Melbourne with whom she remains in contact from time to time and that she interacts briefly with people at the gym.[215] He also recorded that the Applicant avoids people; if she sees a neighbour walking towards her, she may walk the other way and backtrack; and she has banged on a neighbour’s door and wall with a frypan because he was inconsiderate.[216] The Applicant told Mr Cipriani she had previously attended art classes at which she would at times arrive an hour late and have poor concentration.[217] She reported that her leisure and recreational activities include knitting and watching television.[218] Mr Cipriani concluded that the Applicant’s social interaction is limited due to a combination of pre-existing introversion/avoidant personality and depressive episodes.[219]

   [215] R3, 370.

   [216] R3, 368-369.

   [217] R3, 365

   [218] R3, 370.

   [219] R3, 379.

9. Mr Cipriani had the Applicant complete the Depression Anxiety Stress Scales (DASS-21), noting the Applicant reported a moderate level of depression, severe anxiety and moderate stress during the previous week.[220] Relevant to the range of tasks that comprise the activity of social interaction, and noting DASS-21 captures a very brief snapshot in time, the Applicant reported worrying about situations in which she might panic ‘often’ referring to social situations; being intolerant of anything that keeps her from getting on with what she is doing ‘almost always’; a tendency to overreact to situations ‘almost always’, commenting that if someone leaves a message, she panics and is afraid to call back; and she feels irritable ‘almost always’ when people interrupt her or make demands on her.[221]

   [220] R3, 373.

   [221] R3, 373.

10. In oral evidence Mr Cipriani stated that during a manic episode, the Applicant’s capacity to engage in recreational and social activities and employability would be affected.[222] With respect to employability during a manic episode, Mr Cipriani elaborated:

    ‘… there would be behavioural problems. She’d be doing maybe inappropriate things. Concentration would be impaired, communication. She wouldn’t be ale to perform her duties during a manic episode’.[223]

    [222] Transcript, 52, [15-19], [24-26]; 55 [36-37].

    [223] Transcript, 52 [28-31].

11. At the hearing, counsel for the Applicant explained to Mr Cipriani the types of tasks which comprise the activity of social interaction – as described in the Access Guideline – and asked Mr Cipriani whether the Applicant would be able to participate in social interaction during a manic episode.[224] Mr Cipriani responded that she could interact, but it would be abnormal and disorganised with inappropriate behaviour.[225] He agreed with the suggestion that during a manic episode the Applicant couldn’t behave within limits accepted by others, nor cope with feelings and emotions in a social context.[226]

    [224] Transcript, 52 [12-17].

    [225] Transcript, 59 [17-20].

    [226] Transcript, 59 [22-26].

12. Mr Cipriani gave oral evidence that the Applicant would likely need to be hospitalised during a severe manic episode and he could not see support from a lay person being of assistance to her during such an episode, other than to assist her to be hospitalised.[227] He gave further evidence to the effect that it is difficult to say what support the Applicant may need during a manic or depressive episode, as that would really depend on the level of mania.[228] His evidence was to the effect that the extent to which the Applicant’s functioning is affected by a manic episode would depend upon the severity of the manic episode.[229] 

    [227] Transcript, 60 [13-17].

    [228] Transcript, 60 [5-20].

    [229] Transcript, 63 [23-27].

13. In concluding his oral evidence, Mr Cipriani confirmed that if he were to presume that the last manic episode that could be pinpointed occurred in 2021, and that the Applicant’s medication is assisting the potential onset of her manic episodes, his opinion as expressed in his written report under ‘Functional Review’ for periods in between manic episodes does not change.[230]

    [230] Transcript, 64 [9-20].

14. The Applicant does not claim to fall within the deeming provisions in paragraph 5.8 of the Access Rules.[231] With respect to the activity of social interaction, there is no evidence to suggest that the Applicant requires assistive technology, equipment or home modifications so that she can perform tasks or actions required to undertake or participate effectively or completely in the activity. There is insufficient evidence for the Tribunal to find that the Applicant usually requires assistance from other people to perform tasks or actions required to undertake or participate in the activity. Nor does the evidence support a finding that the Applicant 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. Accordingly, the Applicant’s impairments are not deemed to result in substantially reduced functional capacity to undertake the activity of social interaction by operation of paragraph 5.8 of the Access Rules. 

    [231] A’s Outline, [10].

15. Having considered the evidence before it, and the weight that can be appropriately given to that evidence, the Tribunal finds as follows:

    a)    The Applicant has a history of fractured relationships. She has 2 friends. One of those friends lives in Melbourne, the other lives in London. These friendships were formed decades ago. The Applicant does not see these friends in person. She has maintained these friendships by phone and text message. These are enduring friendships by any measure. These friendships demonstrate that at a previous point in time, many years before now, the Applicant was able to make friends. They also demonstrate that the Applicant can maintain friendships, albeit only in circumstances where she has known the person for decades; their communication routine is well established and predictable; and having known the Applicant for many years, the person is likely more sympathetic towards her.

    b)    The Applicant has not made or maintained any new friends for many years. Despite attending the gym daily, for years, she isn’t friends with anyone there. She will occasionally have brief exchanges with people at the gym, however at best these people are acquaintances. Her daily gym attendance is driven by her compulsion to exercise and rigid adherence to a daily routine; and does not give her any sense of belonging to a community.

    c)    Despite having lived at the same address for many years, the Applicant does not socialise with her neighbours and will sometimes go out of her way to avoid them. The Applicant has a history of volatile relations with her neighbours because of how she behaves during manic episodes. Her behaviour during manic episodes is socially unacceptable and has at times placed her and her neighbours at risk.  The Applicant is left distressed after a manic episode, because of its potential consequences for her and others.

    d)    The only person that the Applicant spends time with, other than those who happen to be at the gym when she attends, is Mr Potgieter. Mr Potgieter is sometimes the only person she speaks to for weeks. Whilst the Applicant will sometimes engage with people who post on social media in relation to things of interest to her, these interactions can cause her to become dysregulated.

    e)    The Tribunal is satisfied that at the time of this decision, the Applicant is unable to make friends, and she can only maintain friends in extremely specific circumstances. This is so even during those periods between manic or depressive episodes. It is because of the Applicant’s fluctuating impairments, and the consequences of her episodic impairments, that she is unable to undertake these tasks. It follows that the Tribunal is satisfied that the Applicant cannot make and keep friends during manic and depressive episodes. In making these findings, the Tribunal found the Applicant’s evidence, Mr Potgieter’s reported observations of the Applicant; and Ms Hildebrand’s conclusions in relation to the Applicant’s support needs, persuasive.

    f)     The Applicant’s impairments have historically rendered her unable to undertake employment-related tasks or to effectively manage relationships with colleagues and supervisors. They also resulted in her behaving inappropriately at work and were the reason for her employment being terminated on many occasions. She has been unable to find and keep a job since 2012. The Tribunal is satisfied that the Applicant’s ability to engage in gainful employment has been, and continues to be, completely nullified by her impairments. Whilst the Applicant gave oral evidence that she would like to return to gainful employment and thinks she could do so in very specific circumstances, the Tribunal was not convinced that this was realistic in light of Dr McLean’s evidence that the Applicant is permanently unfit for paid employment; and the fact that Ms Hildebrand made no recommendation in relation to any support that would build the Applicant’s capacity to undertake occupational activities.[232]  The Applicant’s inability to get and keep gainful employment has, and continues to, drastically restrict how the Applicant can interact with the community.

    g)    The Tribunal accepts evidence provided by Mr Potgieter, Ms Hildebrand and Mr Cipriani that the Applicant’s daily routine is extremely rigid. The Tribunal is satisfied that her rigid daily routine makes no allowance for socialising or interacting with the community other than as is essential to facilitate her routine. The Tribunal accepts the Applicant’s evidence, as corroborated by Mr Potgieter’s and Ms Hildebrand’s evidence, that any actual or proposed interruption to the Applicant’s routine causes her to become emotionally dysregulated and will sometimes result in behavioural outbursts, including during those periods when she is not experiencing a manic or depressive episode.  The Tribunal does not agree with the Respondent’s submission that the Applicant has established a good routine to structure her day to prevent manic episodes.[233] On the contrary, the Tribunal finds that the Applicant has had to restrict what she does, and in particular as that relates to her relationships with people and how she interacts with the community, because of her impairments.

    h)    The Tribunal is satisfied that during a manic or depressive episode, the Applicant cannot behave in ways that are socially acceptable and does not recognise she is unwell. The Tribunal is also satisfied that during those periods between manic or depressive episodes, the Applicant’s fluctuating impairments cause her to become irritable and overwhelmed in social situations and to behave aggressively or in otherwise inappropriate ways. This is particularly so on the Applicant’s bumpy days, which the Tribunal has found occur 2 to 3 times a week. With respect to this, the Tribunal found Ms Hildebrand’s evidence in relation to the Applicant’s support needs when she is not experiencing a manic or depressive mood to be persuasive. This was consistent with Mr Potgieter’s evidence, who has had the opportunity to regularly observe the Applicant’s behaviour and presentation over many years.

    [232] R1, 304.

    [233] R’s SIFC, [27.6].

16. Having considered the Applicant’s ability over time to complete the range of tasks and actions that comprise the activity of social interaction, taking into account her ups and downs, the Tribunal is satisfied that the Applicant’s impairments result in substantially reduced functional capacity to undertake the activity of social interaction. Accordingly, the requirement in s 24(1)(c) is met.

    Do the impairments affect the Applicant’s capacity for social or economic participation?

17. Section 24(1)(d) requires that the impairment or impairments affect the person’s capacity for social or economic participation.

18. In oral closing submissions, counsel for the Applicant submitted that if the Tribunal is satisfied the Applicant’s impairments result in substantially reduced functional capacity to undertake the activity of social interaction for the purposes of s 24(1)(c), it would follow that because of the loss of ability in relation to social interaction, there is also a loss of ability for social participation. It was further submitted that where there is evidence of a diminished capacity to engage in social interaction because of the ability to find or keep gainful employment, that is directly relevant to the question of economic participation.

1. The Respondent has submitted that if the Tribunal were to accept their submission that the Applicant does not satisfy the criteria in s 24(1)(c), it follows that they do not meet s 24(1)(d).[234]

   [234] R’s Outline, [4.2].

2. The Tribunal has found that the Applicant’s impairments result in substantially reduced functional capacity to undertake the activity of social interaction for the purposes of s 24(1)(c). Whilst the requirements in ss 24(1)(c) and (d) are distinctly different, to the Tribunal’s mind, there is some interconnect between the Applicant’s functional capacity to undertake the activity of social interaction and her capacity for social participation.

3. The Tribunal accepts that the Applicant maintains a rigid routine, which involves extremely limited social participation.[235] She attends the gym daily, to which she catches a bus.[236] She attends the supermarket to buy groceries. The Applicant is otherwise not involved within her community. She actively limits or avoids interactions with her neighbours; she is avoidant of social interactions generally; she is not a member of any community group; nor does she participate in any leisure activities outside of her home.[237] The Applicant is socially isolated. On the evidence before it, as outlined earlier in these reasons, the Tribunal finds that the Applicant is socially isolated and disengaged from the community because of her impairments. Accordingly, the Tribunal is satisfied that the Applicant’s impairments affect her capacity for social participation.

   [235] A2, 203; R1, 300;

   [236]

   [237] A1, 189; R1, 299; 306

4. The Applicant has not been in paid employment since 2012 and receives a Disability Support Pension.[238] Her employment history prior to 2012 is replete with instances of poor performance and inappropriate behaviour which resulted in numerous terminations.[239] On the evidence before it, as outlined earlier in these reasons, the Tribunal finds those circumstances were directly attributable to her impairments, as has been her ongoing unemployment since 2012. Accordingly, the Tribunal is satisfied that the Applicant’s impairments affect her capacity for economic participation.

   [238] A2, 205.

   [239] A2, 203-205.

5. As the Tribunal is satisfied that the Applicant’s impairments affect her capacity for social and economic participation, the requirement in s 24(1)(d) is met.

   Is the Applicant likely to require support under the NDIS for her lifetime?

6. Section 24(1)(e) requires that the Applicant is likely to require support under the NDIS for their lifetime. Sections 24(2) and 24(3) provide that impairments that vary in intensity, or are episodic or fluctuating may be permanent, and the person is likely to require support under the NDIS for their lifetime, despite the variation, or episodic or fluctuating nature of the impairments. This is echoed by paragraph 5.2 of the Access Rules.

7. The Access Guideline provides as follows:

   You must be likely to need support under the NDIS for your whole life.

   NDIS supports are investments that help you build or maintain your functional capacity and independence, and help you work, study or take part in social life.

   Even if your needs go up and down over time, or happen episodically we may still consider it’s likely you’ll need lifetime support under the NDIS.

   We consider your overall situation to answer this question. When we decide if you’ll likely need support under the NDIS for your whole life, we consider:

   ·your life circumstances

   ·the nature of your long-term support needs

   ·whether your needs could be best met by the NDIS, or by other government and community services.

   For example, you may have an impairment which is caused by a chronic health condition. Many chronic health conditions are most effectively managed or remedied through medical management through the health system. If this is the case, we may decide that you don’t have a lifetime need for support under the NDIS.

8. In National Disability Insurance Agency v Foster (Foster), the Full Court of the Federal Court confirmed that:

   ‘The focus of s 24(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’.[240]

   [240] Foster, [93].

9. The Full Court of the Federal Court also confirmed that it would be wrong for the Tribunal to ask itself whether supports available under other systems would be comparable to what would be available under the NDIS;[241] and that there is no scope for a support to be partially funded under the NDIS.[242]

   [241] Foster, [95].

   [242] Foster, [98].

10. The Applicant claims she is likely to require support for her lifetime, as her impairments are permanent, and that her support needs are not more appropriately met by systems other than the NDIS.[243] The Respondent submits that if the Tribunal were to accept their submission that the Applicant does not satisfy the criteria in s 24(1)(c), it follows that they do not meet s 24(1)(e).[244]

    [243] A’s Outline, [8].

    [244] R’s Outline, [4.2].

11. The evidence before the Tribunal confirms that the Applicant has lived with her impairments for years. She has since 2017 been under the care and support of Dr McLean and Mr Potgieter. Dr McLean’s evidence is that her bipolar disorder has severely and significantly adversely affected all aspects of her life, relationships and impaired her ability to work since 2012; and that her treatment has been optimum or maximum that can be reasonably undertaken with regard to her particular circumstances.[245] Mr Potgieter’s evidence is that the treatment he provides the Applicant is to prevent her level of functioning from deteriorating any further and is not expected to bring about improvement;[246] and that she experiences significant barriers to participating socially and economically in society on an ongoing basis.[247]

    [245] T1, 19.

    [246] A2, 266.

    [247] A4, 1.

12. On the evidence before it, the Tribunal is satisfied that despite compliance with her treatment regime, the Applicant’s functional capacity to undertake daily activities, and to participate socially and economically, continues to be impacted by her impairments. The Tribunal is further satisfied that treatment will not remedy the Applicant’s impairments; in which case they will persist to impact the Applicant’s functional capacity for her lifetime.

13. Mr Potgieter opines that the Applicant requires support to be able to live independently and to participate socially and economically;[248] and that she will require assistance from the NDIS for her lifetime.[249] Ms Hildebrand concluded that the Applicant has psychosocial disabilities due to her diagnosis of PTSD and bipolar that significantly reduce her functional capacity in the areas of social interaction, selfcare, home management and community participation; and that she will rely on support to participate completely and effectively in activities of self-care and social participation for her lifetime.[250] Mr Cipriani concluded that the Applicant would require support in activities of daily living during manic and depressive episodes, which are intermittent.[251] The Tribunal is satisfied that the Applicant will require supports for her lifetime.

    [248] A3, 2.

    [249] T1, 54.

    [250] R1, 310; R2, 336.

    [251] R3, 379.

14. The Applicant’s evidence is that her treatment by Mr Potgieter has recently been funded by NSW Victims Support, but that funding will soon run out.[252] The Applicant submitted that Medicare’s Mental Health Treatment Plan scheme offers insufficient support.[253] Ms Hildebrand concluded that the Applicant’s support needs cannot be met by the health system and mainstream services; and that she has no informal supports to provide her with assistance.[254] In her supplementary report, Ms Hildebrand considered supports available from Community Living Support (CLS), Safe and Supported at Home (SASH) and the Disability Gateway; and concluded that that consideration did not change her view that the Applicant’s support needs are not more appropriately met by systems other than the NDIS.[255] The Tribunal finds that the Applicant’s support needs are not most appropriately met by systems other than the NDIS.

    [252] A2, 206; A’s Outline, [8].

    [253] A’s Outline, [8].

    [254] R1, 310.

    [255] R2, 335-337.

15. The Tribunal finds that the Applicant is likely to require support under the NDIS for her lifetime, and that those support needs would not be most appropriately met by other systems. Accordingly, the Tribunal is satisfied that the Applicant is likely to require support under the NDIS for her lifetime, and the requirement in s 24(1)(e) is met.

    Conclusion

16. For the reasons outlined above, the Tribunal is satisfied that the Applicant meets the disability requirements in s 24.

17. The Tribunal has found that the Applicant meets the age requirements in s 22, the residence requirements in s 23, and the disability requirements in s 24. Accordingly, the Tribunal finds that the Applicant meets the access criteria in s 21(1).

    Decision

    Pursuant to s 43(1) of the AAT Act, the Tribunal sets aside the decision under review and decides in substitution that the Applicant meets the access criteria for the NDIS as set out in s 21 of the NDIS Act.

    I certify that the preceding one hundred and

    nineteen (119) paragraphs are a true copy

    of the reasons for the decision herein of

    Member Proske

    …[sgnd]…………………………..
    Associate

    Dated: 7 May 2024

    Date of hearing:  29, 30 January and 8 March 2024

    Advocate for the Applicant:      Stephen Thomson

    7 Wentworth Selborne

    Advocate for the Respondent:  Paul d’Assumpcao

    Howard Zelling Chambers