HKPN and National Disability Insurance Agency (NDIS) - [2024] ARTA 415

HKPN and National Disability Insurance Agency (NDIS) [2024] ARTA 415 (24 December 2024)
Applicant/s:  HKPN
Respondent:  National Disability Insurance Agency
Tribunal Number:                2021/6472

Tribunal:General Member K Dodd
Place:Perth
Date:24 December 2024

Decision:The Tribunal affirms the decision under review.

.................[SGD].......................................................
General Member K Dodd
Catchwords
NATIONAL DISABLITY INSURANCE SCHEME – access to the scheme – whether the applicant meets the disability or early intervention requirements – alcohol use disorder – attention deficit hyperactivity disorder – bipolar affective disorder – borderline personality disorder – complex post traumatic stress disorder – anxiety – ulnar collateral ligament damage – trochanteric bursitis – Osgood-Schlatter disease – sciatica – seizures – whether impairments are permanent – decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth) ss 23, 70(1), 70(2), 105(a)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 20, 21, 21(1), 22, 23, 24, 24(1), 24(1)(a), 24(1)(b), 24(1)(c), 24(1)(d), 24(2), 24(3), 25, 25(1), 27, 99, 100, 100(6), 209(1)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 ss 125, 126
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) rr 5.4, 5.5, 5.6, 5.7
Cases
Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11
DQKZ and National Disability Insurance Agency [2024] AATA 2276
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634
Schwass and National Disability Insurance Agency [2019] AATA 28
TAZU15 v Minister for Immigration and Border Protection (2016) 240 FCR 143
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-5) (Washington, DC, 5th ed, 2022)
Revised Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Guarantee and Other Measures) Bill 2022 (Cth)
Statement of Reasons

This application is about whether HKPN (the Applicant) should be granted access as a participant to the National Disability Insurance Scheme (the NDIS).
The Applicant is a 42-year-old woman who lives alone in a two-bedroom triplex in a suburb of an Australian capital city. She has a 13-year-old son who is in the care of the Applicant’s mother.[1] The Applicant has tertiary legal qualifications and has previously been employed in legal practice. She has not worked for some time and is in receipt of a Disability Support Pension.
[1] Exhibit R1 (R1), H3, page 32 at [86].
The Applicant seeks access to the NDIS on the basis of impairments arising from several medical conditions including:
(a)Alcohol Use Disorder;[2]
[2] R1, H4, page 139; H8, page 746.
(b)Complex Post-Traumatic Stress Disorder (C-PTSD);[3]
(c)Borderline Personality Disorder (BPD);[4]
(d)Bipolar Affective Disorder (BPAD);[5]
(e)Attention Deficit Hyperactivity Disorder (ADHD);[6]
(f)Generalised Anxiety Disorder (GAD);[7]
(g)Right Trochanteric Bursitis;[8]
(h)Right ulnar collateral ligament and thumb injury;[9]
(i)Osgood-Schlatter disease;[10]
(j)Sciatica;[11] and
(k)Seizures.[12]
[3] R1, H4, page 139; H8, page 746.
[4] R1, H4, page 139; H8, page 746.
[5] R1, H4, page 139; H8, page 746.
[6] R1, H4, page 139; H8, page 746.
[7] R1, H4, pages 99 and 139.
[8] R1, H4, page 69.
[9] R1, H4, pages 81 and 119.
[10] R1, H4, page 119.
[11] R1, H4, page 127.
[12] R1, H4, pages 99 and 111; H8, page 746.
On 12 July 2021, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA or Respondent) made a decision under section 20 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) to refuse the Applicant’s request to access the NDIS (the Original Decision) on the basis she did not meet the access criteria set out in the Act.[13]
[13] R1, H4, page 58.
On 14 July 2021, the Respondent received a request from the Applicant for internal review of the Original Decision under section 100 of the NDIS Act.
On 1 September 2021, a delegate of the CEO of the Respondent affirmed the Original Decision under subsection 100(6) of the NDIS Act.[14] The delegate found that the Applicant satisfied the age requirements (section 22 of the NDIS Act) and the residence requirements (section 23), but not the disability requirements (section 24) or the early intervention requirements (section 25). With regards to the section 24 criteria, the reviewer was satisfied that the Applicant met paragraph 24(1)(a) in that she had an impairment attributable to psychiatric conditions, namely C-PTSD, BPD, BPAD, Substance Abuse Disorder and ADHD.[15] They were also satisfied that the Applicant’s impairments affected her capacity for social and economic participation (s 24(1)(d)). The reviewer was not satisfied that s 24(1)(b), 24(1)(c), and 24(1)(e) had been met. This is the Reviewable Decision before the Tribunal.
[14] R1, H4, pages 58 to 66.
[15] R1, H4, page 62.
On 12 September 2021, the Applicant lodged an application to the then Administrative Appeals Tribunal (AAT), seeking review of the Reviewable Decision denying her access to the NDIS.[16]
[16] R1, H4, pages 42 to 48.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the ART Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Administrative Review Tribunal. The ART Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Pursuant to section 70(1) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) the Tribunal made an order on 19 November 2024 that prohibited the disclosure of information that may identify the Applicant. In accordance with those orders, the pseudonym, HKPN, is used instead of the Applicant’s name in this Decision. The Tribunal has used a further set of pseudonyms for the names of the Applicant’s medical professionals and health services to anonymise information that may lead to the identification of the Applicant.
LEGISLATION
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Amending Act) commenced on 3 October 2024. An issue arises in relation to the Applicant’s Tribunal application, being whether the Tribunal should apply provisions of the NDIS Act as they were in force prior to the commencement of the Amending Act on 3 October 2024, or whether the amended provisions in force as of 3 October 2024 should be applied instead.
The age (section 22) and residence (section 23) requirements remain unchanged in the NDIS Act. However, sections 21, 24 and 25 of the NDIS Act have been amended by the Amending Act.
Under section 125 of the Amending Act, the section 21 amendments apply to access requests that are made to the NDIA by a prospective participant on or after 3 October 2024.
Under section 126 of the Amending Act, the section 24 and section 25 amendments apply to access requests that are made to the NDIA by a prospective participant on or after 3 October 2024.
This means these amendments will only apply to access matters that are before the Tribunal when an original decision and an internal review decision have been made in accordance with the new Amending Act requirements.
Section 126 of the Amending Act also provides that the NDIS rules continue to apply (under section 27 of the NDIS Act as in force before 3 October 2024).
As the Applicant’s request for access to the NDIS was made before 3 October 2024, the Tribunal application should be determined in accordance with the NDIS Act and the NDIS rules as they existed before[17] the commencement of the Amending Act on 3 October 2024.
[17] The Reviewable Decision and application to the Tribunal were made prior to previous amendments to s24 and s25 that came into effect on 1 July 2022. As the application had not been finalised prior to the commencement of those 2022 amendments to the NDIS Act, under the provisions of the Revised Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Guarantee and Other Measures) Bill 2022 (Cth), the Tribunal must consider this matter under the NDIS Act as it existed after 1 July 2022.
The objects of the Act are set out in section 3 of the NDIS Act. These include giving effect to Australia’s obligations under the Convention of the Rights of Persons with Disabilities[18]; supporting the independence and social and economic participation of people with a disability; providing reasonable and necessary supports for participants; and enabling people with disability to exercise choice and control in pursuit of their goals. Section 4 sets out general principles guiding actions under the Act. These include that people with disability have the same right as other members of society to realise their potential and should be supported to participate in and contribute to social and economic life. They should also have certainty that they will receive the care and support that they need over their lifetime. The Tribunal has considered the objects and general principles of the Act in making its decision.
[18] Australian Treaty Series [2008] ATS 12.
To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:[19]
(1)A person meets the access criteria if:
(a)    the CEO is satisfied that the person meets the age requirements (see section 22); and
(b)    the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)    the CEO is satisfied that, at the time of considering the request:
(i)the person meets the disability requirements (see section 24); or
(ii)the person meets the early intervention requirements (see section 25).
[19] s 21(1) of the NDIS Act before the commencement of the Amending Act on 3 October 2024.
There is no dispute the Applicant satisfies the age and residence requirements. Accordingly, the matters in issue are whether the Applicant satisfies the access criteria in section 24 (the disability requirements) or section 25 (the early intervention requirements) of the NDIS Act.
Section 24 of the Act states:[20]
[20] s 24 of the NDIS Act before the commencement of the Amending Act on 3 October 2024.
(1)A person meets the disability requirements if:
(a)    the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)    the impairment or impairments are, or are likely to be, permanent; and
(c)    the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self care;
(vi)self management; and
(d)    the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)    the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
If the Applicant does not meet the disability requirements, the Tribunal will consider whether she meets the early intervention requirements set out in section 25 of the Act which state as follows:[21]
[21] s 25 of the NDIS Act before the commencement of the Amending Act on 3 October 2024.
(1)A person meets the early intervention requirements if:
(a)    the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)is a child who has developmentaldelay; and
(b)    the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)    the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note:        In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(1A)For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)    as part of a universal service obligation; or
(b)    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(Original emphasis.)
The Minister may, under section 27 and subsection 209(1) of the NDIS Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation. The Tribunal is bound to apply the legislation as enacted, including the Access Rules.
The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[22] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guideline).[23]
[22] Re Drake and Minister for Immigration and Ethnic Affairs(1979) 2 ALD 634.
[23] National Disability Insurance Agency, Our guidelines – becoming a participant – Applying to the NDIS – Pre-legislation changes, (14 October 2024).
ISSUES BEFORE THE TRIBUNAL
In their closing submissions, the Respondent raised issues regarding their view of the Applicant’s conflicting evidence and the limited weight that should be afforded to medical reports that have relied on the Applicant’s self-reporting. The Tribunal will address this issue separately in considerations to follow.
The Applicant’s position is that she meets the legislative criteria to be granted access to the NDIS.
With regards to s 24(1)(a) of the NDIS Act, the Respondent accepts that the Applicant ‘experiences disability attributable to psychiatric and psychosocial conditions flowing from alcohol dependence/ substance abuse disorder, PTSD, BPD, Bipolar Affective Disorder and ADHD, and that she experiences disability attributable to a physical impairment flowing from right ulnar collateral ligament injury’.[24] The Respondent view is that there is insufficient evidence to accept there is impairment arising from the Applicant’s conditions of sciatica, Osgood Schlatter disease or trochanteric bursitis.[25]
[24] R1, H1, page 2 at [13.1].
[25] R1, H4, page 3 at [20] and [21].
The Tribunal will need to consider with some precision the impairment or impairments experienced by the Applicant because the threshold questions on permanency and reduced functional capacity operate not on the concept of disability, but on the concept of impairment.[26] As such, the Tribunal will consider whether it is 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 attributed. The concept of impairment is generally understood as involving the loss of, or damage to, a physical, sensory or mental function.[27]
[26] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [51] (Mulligan).
[27] Mulligan at [51].
If the Tribunal is satisfied that s 24(1)(a) of the NDIS Act is met, the Tribunal will need to then consider if the Applicant’s impairment or impairments are, or are likely to be, permanent (s 24(1)(b) of the NDIS Act). The Respondent contends that this criterion is not met.[28]
[28] R1, H1, pages 3 to 7 at [22]-[49]; Respondents Written Closing Submission (R Closing), page 3 to 7 at [15]-[50].
If the Tribunal finds that s 24(1)(a) and s 24(1)(b) are satisfied, it will consider whether the Applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the six specified activities as stated in s 24(1)(c). The Respondent’s position is that the Applicant’s impairments do not result in a substantially reduced functional capacity in any of the specified activities.[29]
[29] R Closing, pages 8 to 12 at [51] – [98].
If the Tribunal is satisfied the s 24(1)(c) criteria has also been met, it will then need to consider whether the Applicant’s impairment or impairments affect her capacity for social or economic participation (s 24(1)(d)). The Respondent accepts that the Applicant meets this requirement of the NDIS Act.[30]
[30] R1, H1, page 2 at [13.2].
If the Tribunal is finds that s 24(1)(d) is met, it will need to consider whether the evidence establishes that the Applicant is likely to require support under the NDIS for her lifetime, pursuant to s 24(1)(e). The Respondent contends that that in circumstances where the Applicant's disability does not satisfy the substantially reduced functional capacity criteria in s24(1)(c) of the NDIS Act, that the Tribunal cannot be satisfied that the Applicant is likely to require support under the NDIS for her whole life.[31] Furthermore, the Respondent argues that because the evidence given by the Applicant at the Tribunal is that she only requires NDIS support for a brief period of time, it cannot be said the Applicant requires lifetime NDIS support.[32] The Respondent also contends that the Applicant’s impairments have not been treated optimally and that the support she requires is more appropriately provided by community based services and the healthcare system.[33]
[31] R1, H1, page 11 at [90].
[32] Respondents Written Closing Submission, page 13 at [100].
[33] R1, H1, page 11 at [91]; Respondents Written Closing Submission, page 13 at [101]-[102].

If the Tribunal finds that the disability requirements in section 24 of the NDIS Act are not met, it will consider whether the Applicant meets the early intervention requirements set out in section 25. The Respondent contends that the Applicant’s impairments are not permanent and therefore the requirements of s 25(1)(a) are not met.[34]
[34] R1, H1, page 11 at [93]; Respondents Written Closing Submission, page 13 at [103].
THE HEARING AND THE EVIDENCE
The application was heard by the Tribunal on 6 and 7 November 2024 via MS teams. The Applicant was self-represented. The Respondent was represented by Mr Lipari of Counsel, instructed by Ms Dowell of the National Disability Insurance Agency.
The Respondent filed with the Tribunal a consolidated tender bundle of documents totalling 936 pages which was admitted into evidence (Exhibit R1). R1 included the T-documents filed by the Respondent on 28 September 2021 under section 37 of the then Administrative Appeals Tribunal Act 1975 (Cth), the Respondent’s Statement of Facts Issues and Contentions (RSFIC) dated 9 October 2024, the Applicant’s response to the RSFIC dated 20 October 2024, the Respondent’s submissions regarding the NDIS Act amendments dated 11 October 2024, the evidence previously filed by the Applicant and Respondent during the review process and documents obtained under summons from various health care providers.
The Applicant gave evidence at the hearing. The Respondent called as an independent expert witness Dr NP, clinical neuropsychologist.
The Tribunal has considered the relevant factual and expert evidence and will refer to evidence in the decision that was specifically relied upon by a party or that in the Tribunal’s view is directly relevant to the determination of this matter.
Procedural matters and initial considerations
There were challenges faced by the Tribunal with regards to the Applicant’s presentation at the hearing. She was at times emotionally dysregulated, interrupting during the hearing, using expletive language toward Counsel for the Respondent and disinhibited in her language toward the Tribunal. This required the Applicant, following repeated warning by the Tribunal, to be muted for periods of time during the hearing. This was to ensure not only that the Tribunal could adequately hear the evidence of the expert witness and submissions from Counsel, but so that the Applicant was afforded the opportunity to hear that evidence and cross examine the expert witness.
Such presentation of the Applicant was not dissimilar to that at previous directions hearings held by Tribunal, currently constituted, and in some of her email communications.
On the first day of the hearing the Tribunal made several attempts to contact the Applicant after she had not joined the hearing via the link provided in the notice of hearing. When eventually contacted, she explained that she thought the hearing commenced the following day. The matter was adjourned until the afternoon after she admitted that she had consumed one or two cans of an alcoholic beverage. The Tribunals concern was that she may be impaired in terms of being able to adequately participate in the hearing. She gave an assurance to the Tribunal that she would not consume anymore alcohol during the hearing.
Another issue arises regarding one of the Respondents independent expert witnesses. Ms OT was engaged by the Respondent to conduct an independent Functional Capacity Assessment (FCA) on the Applicant. The Assessment was conducted at the Applicant’s home on 1 March 2023 and a report provided dated 23 March 2023.[35] Following receipt of the FCA report, the Applicant emailed the Registry requesting an urgent hearing to apply for a confidentiality order on the FCA report which in her opinion contained [redacted] in addition to omissions, factual errors, contradictory statements and read as having been ‘cut and paste’.[36] The Tribunal, differently constituted at the time, made an order on 31 May 2023 prohibiting the publication of the FCA report. Any evidence from the FCA report included in this consideration will be redacted in the final published decision.
[35] R1, H9, pages 823 to 873.
[36] R1, H12, page 917.
In NDIS access application matters, the Tribunal is frequently assisted by the findings of a FCA by an independent expert, as is reflected in the guidance provided by Mortimer J in Mulligan, which held that the legislation requires ‘a relatively high degree of precision by decision-makers… in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted.’[37] Having reviewed the FCA report, I am satisfied that the substance of the report with respect to the assessment of functional capacity (paragraphs 12 to 15 of the FCA) is not inconsistent with the evidence provided by the Applicant at the hearing. The Respondent elected not to call Ms OT to give evidence at the hearing and so the Applicant was not given the opportunity to test Ms OT’s evidence under cross-examination. The Tribunal notes email communications on 31 October 2024 where in response to the Respondent asking, ‘can you please confirm that you do not intend to cross-examine Ms OT’, the Applicant has replied, ‘that won’t be necessary’.[38]
[37] Mulligan at [55].
[38] Email from HKPN, 31 October 2024.
Notwithstanding the aforementioned issues, the Tribunal is satisfied that Ms OT is suitably qualified[39] to provide expert evidence to the Tribunal and that she has provided a signed confirmation of her overriding duty to provide impartial assistance to the Tribunal.[40] As such the Tribunal does give weight to Ms OT’s evidence specifically relating to the assessment she conducted on the Applicant’s functional capacity.
[39] R1, H9, pages 870 to 873.
[40] R1, H9, page 864.
In making this finding, the Tribunal does not diminish the concerns raised by the Applicant, particularly regarding Ms OT’s record of the Applicant’s personal history in the FCA report. This information has not been afforded any significant weight by the Tribunal. The Tribunal considers this information as not germane to a decision makers task of determining what ‘a person can or cannot do’.
The Tribunal considers it prudent to comment on a further matter regarding the witnesses listed to appear before the Tribunal. On 22 October 2024, the Applicant, in an email response to the Respondent’s enquiry regarding the names and contact details of witnesses she intended to call at the hearing, stated that other than relying on their reports, she couldn’t manage such a task.[41] The offer was made by the Respondent to contact these witnesses to ascertain their availability and arrange for their attendance.[42] To this the Applicant was appreciative indicating that she had found the process challenging in the absence of any supports or legal representation. She indicated that she would like her treating general practitioner (Dr G) and consultant psychiatrist (Dr P1) to give evidence.[43] A joint witness schedule was filed with the Tribunal by the Respondent on 4 November 2024 indicating that Dr G and Dr P1 would be giving evidence. On 5 November 2024, one day before the hearing commencement, the Respondent informed the Applicant of Dr G’s appearance fee and requested confirmation from the Applicant of her acceptance of the fee.[44] On the day of the hearing the Applicant responded that she could not afford to pay her doctors appearance fees and that she had not previously been informed by the Respondent that she would be liable for these. She expressed concern regarding any late cancellation fee.[45] The Respondent’s email reply outlined that the Agencies offer was to ascertain the availability and arrange the attendance of the Applicant’s witnesses and not to accept liability for their fees.[46] Consequently, the appearances of Dr G and Dr P1 were cancelled.
[41] Email from HKPN to Ms Ms Dowell, 22 October 2024.
[42] Email from Ms Dowell to HKPN, 23 October 2024.
[43] Email from HKPN to Ms Dowell, 23 October 2024.
[44] Email from Ms Dowell to HKPN, 5 November 2024.
[45] Email from HKPN to Ms Dowell, 6 November 2024.
[46] Email from Ms Dowell to HKPN, 6 November 2024.
While the Tribunal acknowledges that there is no onus on the Respondent to organise the Applicant’s witnesses appearances or any associated costs, the Tribunal does take issue with the clarity of the Respondent’s communication with the Applicant. On the Tribunal’s reading of the correspondence between the parties, the Applicant is correct in her assertion that prior to 5 November 2024 she had not been given notice of her liability for these fees. It would have been apparent to the Respondent from previous directions hearings held during 2024, including most recently on 11 October 2024, that the Applicant was emotionally dysregulated. The Tribunal’s view is that the Respondent should have exercised a clearer line of communication and a more considered approach with the Applicant. The communication about the liability for fee payment the day before a hearing and the resulting course of events leading to the cancellation of witnesses on the day of the hearing was, in the Tribunal’s opinion, poorly timed and potentially distressing to the Applicant.
Furthermore, the Tribunal would likely have been assisted by the evidence of Dr G and Dr P1 and as such the Tribunal had invested time in its preparation by formulating lines of inquiry for these witnesses, particularly with regard to the permanency of the Applicant’s impairments.
Finally, the Respondent has submitted that the Tribunal treat with caution and give limited weight to the Applicant’s evidence and the evidence taken by her treating practitioners in their contemporaneous notes of her self-reported information, on the basis that she has provided conflicting evidence throughout the course of these proceedings.[47] The Respondent submits two types of evidence for which they argue relevant matters given orally at hearing and in the written material before the Tribunal is inherently unlikely and contradictory: [48]
[47] R Closing, page 1 at [3].
[48] R Closing, page 1 at [4].
a. The genesis of the right thumb/wrist injury:
i. In the [Hospital A] Final v1 Separation Summary dated 3 March 2017 it is recorded that the Applicant had been drinking (BAL 0.175) and wanted to harm herself, which resulted in her mother calling an ambulance. The Applicant then got into an altercation with police whereby she had her thumb hyperextended.[49]
[49] R1, H7, page 450.
ii. In a written statement dated 10 May 2021 the Applicant states that the injury occurred during an extreme manic episode where she was detained under the Mental Health Act, no mention is made of an illegal search of her Chambers.[50]
[50] R1, H4, page 142.
iii. During the course of the Tribunal hearing on 7 November 2024 the Applicant gave evidence that her right thumb/wrist injury occurred as a result of a police assault. The evidence was to the effect that a police officer arrived at her Barristers’ Chambers to conduct an unauthorised search, and began looking at documents, and when the Applicant attempted to stop him from doing so, her thumb was injured.
b. The Applicant’s employment history:
i. On 22 February 2022 [recte 2023] the Applicant informed [Dr P1] that she had a job with the RSPCA as a lawyer/advocate.[51]
ii. On 30 May 2023 the Applicant informed [Dr P1] that she had a job “with [state] Prosecutor and in house counsel for the RSPCA”.[52]
iii. On 4 June 2024, the Applicant informed [Dr P1] that she was “trying to join the Army Reserves in their Legal Corp, has got through the first stage”.[53]
iv. During the course of the Tribunal hearing, the Applicant gave evidence that the last time she worked was during the Royal Commission into the Violence, Abuse, Neglect and Exploitation of People with Disability during 2019 and 2020.
(Respondent citations omitted. Tribunal citations added.)
[51] R1, H8, page 744.
[52] R1, H8, page 744.
[53] R1, H8, page 743.
Having considered the evidence, the Tribunal finds the Respondent’s outline of these facts to be accurate, excepting the date at b(i) of the preceding paragraph. The Tribunal does have concerns about the reliability of the Applicant’s evidence due to inconsistencies therein, such as in the examples outlined in the preceding paragraph. However, the Tribunal does not make a finding on the Applicant’s credibility but rather that, the available evidence and the Applicant’s presentation during the directions hearings and the substantive hearing suggest mental state and/or alcohol related factors are more likely contributory rather than the Applicant being consciously misleading. In the considerations to follow, the Tribunal will reason further if it considers less weight is to be given to any factual claim if there are cogent inconsistencies with that evidence. As identified by their Honours in TAZU15 v Minister for Immigration and Border Protection (2016) 240 FCR 143 (TAZU15), care needs to be taken by the Tribunal not to take a ‘blanket, reflex or exaggerated’[54] approach to adverse credit findings.
[54] TAZU15 at [11].
Similarly, the Tribunal does not take a ‘blanket’ approach to affording less weight to the evidence of the Applicant’s treating practitioners on the basis of the reliability of her self-reporting to them. With regards to the evidence of the Applicant’s consultant psychiatrist, the Tribunal is of the view that the particular training and skills of a psychiatrist is focused toward the analysis of self-reported information, including consideration of its reliability, in conjunction with examination of the mental state.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the Applicant have a disability attributable to one or more impairments? – s 24(1)(a)
The first task the Tribunal needs to consider is whether 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.
Applicant’s evidence
The Applicant has filed documentary evidence with the Tribunal consisting of an undated written statement contained within the T Documents[55], a written statement dated 10 May 2021[56], email responses regarding the FCA report[57] and an undated response to the RSFIC[58] filed on 20 October 2024. The Applicant gave oral evidence at the hearing via MS Teams.
[55] R1, H4, pages 111 to 116.
[56] R1, H4, pages 139 to 107.
[57] R1, H12, pages 898 to 927
[58] R1, H3, pages 17 to 36.
Psychosocial impairments
At the hearing the Applicant was asked to describe what impairments she experiences arising from her mental health conditions. She explained in general terms that ‘it’s like every day I wake up, and I don’t know who I am, as far as what mood I’m going to be in; what capabilities I have.’[59]
[59] Transcript, 6 November 2024 (Day 2 Transcript), page 5.
In her written statement contained within the T Documents, the Applicant described that she can be ‘highly strung and often misreads others’ and gets easily offended.[60] She can have ‘outbursts’ when upset. She stated that she suffers from social anxiety and relies on alcohol for confidence in social settings. The Applicant explained that she has always had interpersonal difficulties and difficulties in reading social cues. She stated that she is sometimes inappropriate and gave examples of swearing and the oversharing of information.[61] Such was evident at the hearing when the Tribunal had to warn the Applicant and place her on mute on several occasions when she interrupted proceedings with angry responses and inappropriate language, demonstrating her inability, at the time, to appropriately inhibit her responses.
[60] R1, H4, page 111.
[61] R1, H4, page 112.
At the hearing the Applicant explained some of her difficulties in interpersonal relationships. She described being very cautious in her trusting and dealing with other people.[62] She further explained that she tends to ‘fall in love with people’ at which stage her interpersonal boundaries ‘just vanish’.[63] With regards to the Applicant’s ability to interact with others, she explained:[64]
I don’t understand the quantity of people. I don’t understand what their aims are or what they want.
…
I have a very unique way of burning people off. I don’t know how or why, but – yes, no. Nobody really likes me…
…
I can become querulous and – and sometimes I just shut down on people who have invested in me.
[62] Day 2 Transcript, page 6.
[63] Day 2 Transcript, page 11.
[64] Day 2 Transcript, page 25.
She stated that she can spend money impulsively and has difficulty with the step-by-step process in decision making.[65] In the Applicant’s written evidence, reference is made to her difficulties with concentration, short term memory and organisational skills.[66]
[65] Day 2 Transcript, page 7.
[66] R1, H4, pages 112 and 141.
The Applicant described periods of tiredness secondary to medication effects, low self-esteem, depression, anxiety and anxious avoidance.[67] With regards to her sense of self, the Applicant explained at the hearing that she has trouble feeling worthwhile and therefore tends to neglect her personal care.[68] She stated that she always feels anxious[69] and is unable to catch public transport due to her generalised anxiety and PTSD.[70] The Applicant explained that she experiences manic episodes where ‘you feel like you can do anything, and you can do anything’.[71] When asked how often she experiences these episodes, the Applicant stated, ‘it ebbs and flows.’[72]
[67] R1, H4, page 113.
[68] Day 2 Transcript, page 27.
[69] Day 2 Transcript, page 45.
[70] R1, H4, page 113.
[71] Day 2 Transcript, page 9.
[72] Day 2 Transcript, page 10.
The Applicant stated that she has had numerous admissions to hospital, usually in the context of being a danger to herself or requiring alcohol detoxification.[73] She described impulsive suicidal thoughts, explaining ‘that’s a feature of the bipolar because I can feel great all day, and then all of a sudden … my mind’s just like …you’ve got to end this…’[74]
[73] Day 2 Transcript, pages 14 to 16.
[74] Day 2 Transcript, page 16.
Physical impairments
In her written statement the Applicant stated that she experiences chronic pain and that her mobility is impacted upon by her disabilities, including the effects of hip joint bursitis, Osgood Schlatter disease and the traumatic injury to her right hand.[75] She described difficulties with bending tasks due to pain and pushing tasks due to the damage to her hand and associated pain. The Applicant stated that twisting movements, such as when toileting, ‘causes shocking cramping and shooting pains in my hip and sciatic nerve that refers to my middle back and causes further cramping’.[76]
[75] R1, H4, pages 113 to 114.
[76] R1, H12, page 898.
At the hearing, the Applicant gave evidence that she experiences pain in the lower back and particularly in her hips.[77] She explained that at times her right hip ‘falls out from underneath me’ when trying to stand from a seated position, having resulted in her falling over in the past.[78] She stated that she experiences pain in her knees that impedes her knee function.[79]
[77] Day 2 Transcript, page 18.
[78] Day 2 Transcript, pages 18 and 31.
[79] Day 2 Transcript, page 19.
The Applicant stated that due to the injury to her right hand she now has arthritis that has ‘spread down to my wrist’[80], her hand is semiparalysed[81] and she is unable to use her hand for many essential tasks.[82] At the hearing she explained that she experiences pain and reduced sensation in her right hand and has difficulty keeping hold of things in that hand.[83]
[80] Day 2 Transcript, page 10.
[81] R1, H3, page 19.
[82] R1, H3, page 25.
[83] Day 2 Transcript, page 17.
The Applicant gave evidence that because she has previously had seizures, she is not allowed to have a bath.[84] She can shower herself but does so infrequently and usually only when prompted to.
[84] Day 2 Transcript, page 27.
Evidence of Dr G, general practitioner

In her capacity as the Applicant’s general practitioner, Dr G completed the NDIS request supporting evidence form dated 23 August 2019 (the 2019 Supporting Evidence). Dr G identifies the following impairments:[85]
[85] R1, H4, page 69.
Primary impairment: ‘Right thumb pain and stiffness, MCP joint pain’
Other impairment having significant impact: ‘Trochanteric bursitis’
Other impairments: ‘Knee pain – R knee MRI shows chondral loss over medial patella facet
‘ADHD’
‘Anxiety/PTSD/depression’
‘Past admissions for mania’
In a subsequent supporting evidence form dated 17 June 2020, Dr G documents the following disabilities:[86]
ADHD
Seizures, Bipolar affective disorder, PTSD, generalised anxiety. R trochanteric bursitis, Osgood Schlatters, alcohol dependency
[86] R1, H4, page 99.
In a further supporting evidence form dated 15 September 2020 (the 2020 Supporting Evidence), Dr G documents the following impairments:[87]
[87] R1, H4, page 119.
Primary impairment: ‘Bipolar Affective Disorder’
Other impairment having significant impact:
‘Right Trochanteric Bursitis’
Other impairments: ‘Ulnar collateral ligament tear R thumb
Osgood-Schlatter
Seizure
Anxiety
PTSD
Alcohol Dependence’
In a further supporting evidence form dated 28 June 2021 (the 2021 Supporting Evidence), Dr G documents the following impairments:[88]
[88] R1, H4, page 127.
Primary impairment: ‘Alcohol Dependence’
Other impairment having significant impact:
‘Complex Post Traumatic Stress Disorder’
Other impairments: ‘Borderline Personality Disorder
Bipolar Affective Disorder
Right Ulnar Collateral Ligament Injury
ADHD
Sciatica
Osgood-Schlatters
Trochanteric Bursitis’
In the 2021 Supporting Evidence, Dr G further identifies functional aspects of the Applicant’s impairments, summarised as follows:[89]
[89] R1, H4, pages 129 to 131.
(a)Sciatica and Osgood Schlatter disease affecting her mobility.
(b)Difficulty balancing on a bus with a hand injury.
(c)Panic attacks and anxiety affecting her ability to go out into the community.
(d)Mental health conditions affecting her ability to concentrate and interact. If hypomanic her speech is affected.
(e)Difficulty making and maintaining friendships. Prone to misinterpreting verbal and non-verbal cues.
(f)Difficulty coping with emotion.
(g)Attention seeking, offends and is easily offended.
(h)Alcohol use escalates to unsocial and dangerous levels.
(i)Difficulty with concentration, staying on task and retaining new information.
(j)When depressed, anxious and consuming alcohol her self-care and ability to self-manage becomes impaired.
In a letter addressed to Centrelink dated 26 April 2019 in support of the Applicant’s application for a disability support pension, Dr G gives the following information regarding the Applicant’s symptoms:[90]
Her current symptoms include inability to concentrate, panic episodes, social anxiety, avoidance, difficulty sleeping, mood swings, labile mood including depressive moods. She has had multiple presentations to hospital for treatment.
Physically she has right knee pain from chondral damage, and a right thumb injury which Is still being investigated by a plastic surgeon. She also has right trochanteric bursitis which causes pain.
[90] R1, H4, page 105.
Evidence from X Medical Centre
In December 2021, documents consisting of consultation notes, referrals, reports, correspondence and other documents were lodged following the issuing of a summons to the Applicant’s attending general practice. The documents included consultation notes between the period of 14 December 2018 to 10 November 2021 from various general practitioners at the practice, the majority from attendances with Dr G.
Relevantly to this application, the Tribunal notes the following with regard to general practitioner (GP) consultations and referrals:
(a)GP notes form a consultation on 14 December 2018 indicate the Applicant’s reason for the visit being ‘ADHD and Bipolar 1 disorder’ and notes a medication regimen consisting of lithium carbonate and mirtazapine. [91] The Applicant reported being quite stable on these medications, albeit recently not as compliant due to financial difficulties. Problematic alcohol consumption is recorded with daily use approximating three bottles of wine per day.
[91] R1, H7, page 381.
(b)In a GP consultation on 7 January 2019, it is recorded that the Applicant has Osgood Schlatter and patellar tendonitis with pain greater in the left knee and a subjective sense of instability in the right knee.[92] Hip pain is recorded. Examination findings were tenderness over the right knee patella, medial and lateral joint lines, a positive McMurray test[93] and a small joint effusion. There was a good range of movement of the right hip and tenderness over the greater tuberosity. Physiotherapy was suggested. The results of radiological investigations ordered revealed:
[92] R1, H7, pages 381 to 382.
[93] McMurray test – if the test is positive the patient will feel pain and the clinician will feel and/or hear meniscal movement when the meniscus is compressed between the tibia and femur.
(i)Mild to moderate thickening of the right trochanteric bursa on right hip ultrasound with some pain to lateral hip probe pressure, suggesting a component of trochanteric bursitis. It is noted that if conservative management measures were not effective, consideration could be given to steroid injection into the bursa.[94]
[94] R1, H7, page 415.
(ii)On an MRI of the right knee there was no evidence of a meniscal tear. There was a small region of partial thickness chondral loss over the medial patellar facet.[95]
[95] R1, H7, page 416.
(c)On 25 March 2019 Dr G records a history of the Applicant returning to university studies and consuming less alcohol.[96] Antabuse was prescribed noting previous trials of naltrexone and Campral.
[96] R1, H7, page 384.
(d)On 26 April 2019 the Applicant reported to Dr G that she had stopped drinking alcohol completely and was hoping to be abstinent for at least a year.[97] She described ‘on and off’ pains in her hips and Dr G notes a discussion with the Applicant regarding trochanteric bursitis and the option of cortisone if getting worse.[98]
[97] R1, H7, page 385
[98] R1, H7, page 386.
(e)Dr G wrote a report on 26 April 2019 in support of the Applicant’s application for a Disability Support Pension:[99]
[99] R1, H7, page 475.
Her diagnoses include Bipolar Disorder, ADHD, Generalised Anxiety Disorder, PTSD and depression. The ADHD was diagnosed around the age of 15 years, and the Bipolar Disorder diagnosed a few years ago.
…
Her current symptoms include inability to concentrate, panic episodes, social anxiety, avoidance, difficulty sleeping, mood swings, labile mood including depressive moods. She has hod multiple presentations to hospital for treatment.
Physically she has right knee pain from chondral damage, and a right thumb injury which is still being investigated by a plastic surgeon. She also has right trochanteric bursitis which causes pain. Therefore she physically is not capable of performing labouring duties either.
…
Her treatment has changed over the years. She has had psychiatric care with [Dr P2] but can no longer afford this, She does see [Dr P1] for management of the ADHD. She is also receiving treatment from Community Mental Health Services.
The prognosis for [HKPN] is that she is unlikely to be able to return to her usual profession and with her mental health concerns I do not think she has the capacity to concentrate to retrain.
As far as the mental health concerns, these are fully treated and stable…
(f)On 6 June 2019 Dr G notes a conversation with a doctor from an inpatient mental health unit on the day the Applicant was to be discharged following an admission.[100] Dexamphetamine had been ceased due to the Applicant’s vulnerability to substance use. She was diagnosed with generalised anxiety. Recommendations included restarting mirtazapine and for psychology in the community. It is noted that the Applicant was not keen on the options of support from the Drug and Alcohol Service or commencing treatment with Campral or naltrexone. At a subsequent consultation with Dr G on 11 June 2016, the Applicant indicated she was already seeing a psychologist through Uniting Care. Treatment with sertraline was commenced.
[100] R1, H7, page 388.
(g)On 31 July 2019 it is noted from a conversation with a staff member at a hospital emergency department that the Applicant had been linked in with the Drug and Alcohol Service for a planned inpatient detoxification admission.[101]
[101] R1, H7, page 389.
(h)On 5 August 2019, Dr G notes that the Applicant had presented to a hospital emergency department with ‘? alcohol withdrawal seizure’.[102]
[102] R1, H7, page 390.
(i)On 23 August 2019, Dr G records that the Applicant has commenced taking Antabuse again on alternate days.[103] She had been going to the gym and aqua classes which had been helping her knees and hips. Referral for Dialectical Behavioural Therapy (DBT) was discussed.[104]
[103] R1, H7, page 391.
[104] R1, H7, page 392.
(j)On 19 November 2019, the Applicant informed Dr G that she had applied for the Disability Support Pension but required more documentation to support her application.[105] Her NDIS application was rejected. Dr G records that the Applicant saw Dr S (plastic surgeon) a few times regarding her right thumb injury, and he had referred her for hand physiotherapy but that the Applicant could not afford this. Dr G notes that the Applicant had not been drinking and was stable.[106] The Applicant was requesting a Mental Health Care Plan (MHCP) to see a psychologist. Dr G asked the Applicant to comeback for a further appointment to complete the MHCP.
[105] R1, H7, page 393.
[106] R1, H7, page 394.
(k)On 26 November 2019 the Applicant reported that her mobility was severely affected and that she was having difficulties walking due to issues with her hips and knees.[107] She stated it was painful to walk, especially with a shopping trolley. Dr G completed a parking permit form but emphasised the importance to keep active.
[107] R1, H7, page 394.
(l)On 16 January 2020, Dr G wrote a referral letter to a community mental health service for the assessment and management of anxiety and alcohol dependence:[108]
[108] R1, H7, page 483.
Thank you for seeing [HKPN], aged 37 yrs for assessment and hopefully treatment to help manage her Anxiety and Alcohol Dependence. She did have on appointment booked for 6/11/19 which she has missed unfortunately. She is keen to be re-referred as she does need help.
[HKPN] had been known to the [redacted] Community Team, but moved to your area 7 months ago.
She has had Dexamphetamine previously from [Dr P2] for ADHD. She is not taking this currently.
She goes on and off Antabuse. She is taking this currently.
[HKPN] has worked previously as a barrister, but not for about 3 years.
She is doing a floristry course.
She has a son [redacted] who lives with her.
In the last few weeks she was drinking again and admitted to [Hospital A] with Atrial Fibrillation.
She was well presented, sober, no thought disorder and good insight.
(m)On 25 February 2020, Dr G wrote to the Applicant’s pharmacy regarding her concerns about the dispensing of over-the-counter Travacalm medication given that ‘she has had a seizure and there may be some correlation with her taking Travacalm…’.[109]
[109] R1, H7, pages 486 and 624 to 625.
(n)On 17 June 2020 Dr G records that the Applicant has had three seizures and had a neurology outpatient booked the following month.[110] The Applicant reported that she had spent three weeks at an alcohol and drug residential therapeutic community. She had been seeing Dr P1 and had restarted treatment with lithium. She was not taking dexamphetamine and was now prescribed Ritalin.
[110] R1, H7, page 399.
(o)On 20 August 2020, Dr G records that the Applicant has had no further seizures and is eligible to apply for her driver’s licence back.[111] She had been due to have an appointment at the first seizure clinic but stated this had been cancelled due to COVID. She had recommenced Antabuse and was drinking alcohol 3 days per week, only in social settings. Dr G notes that the Applicant is taking Ritalin, sertraline and olanzapine. Lithium had been ceased.
[111] R1, H7, page 401.
(p)On 15 September 2020, Dr G saw the Applicant for completion of NDIS paperwork.[112] Dr G notes that the Applicant is back at work. She had reopened her rooms and was enjoying working again. She did not have concerns regarding her alcohol intake and was not taking Antabuse. She was not currently interested in treatment with naltrexone. Dr G records that the Applicant presents as quiet, calm and euthymic.
[112] R1, H7, page 403.
(q)On 23 November 2020, during a telephone consultation, the Applicant reported to Dr G that she had been on a ‘bender’ for four to five days.[113] She reported an incident of sexual assault. Dr G recommended she attend hospital, but the Applicant refused. She had a supportive friend staying who was willing to dispense her medications and monitor home detoxification. Dr G commenced medications for alcohol detoxification and noted the Applicant had not been taking sertraline regularly. The Applicant stated that she had not had any further seizures and had not told hospital medical staff in February that she had been taking Travacalm.
[113] R1, H7, page 404.
(r)On 6 January 2021 Dr G records that the Applicant was doing well following home alcohol detoxification in November.[114] Dr G notes the Applicant presenting as reactive and with better insight. She had recommenced Antabuse and had not been drinking alcohol. She was still taking sertraline and olanzapine. She had been doing some work assisting a magistrate. She reported back pain when having to clean the house. The Applicant requested a referral to another hand specialist due to ongoing right thumb pain.
[114] R1, H7, page 405.
(s)On 28 June 2021 Dr G records that the Applicant is ‘looking again at NDIS’.[115] She is attending Alcoholics Anonymous and taking Antabuse ‘on and off’. The Applicant described her mood as pretty good but had been experiencing a lot of anxiety, social anxiety and PTSD symptoms. Dr G notes that she was ‘presenting well today’.
[115] R1, H7, page 406.
(t)On 9 July 2021, Dr G prescribed naltrexone.[116] The Applicant requested to recommence Antabuse stating that she preferred to have the ‘insurance’ of being on this medication.
[116] R1, H7, page 407.
(u)On 22 July 2021, following a consultation with the Applicant, Dr G wrote a referral to a community mental health service stating:[117]
[117] R1, H7, page 492.
Dear Doctor,
Thank you for seeing [HKPN], aged 39 yrs for assessment for community support ongoing and psychiatrist appointment. [HKPN] is known to your service and in the last month or so has been doing very well.
She is toking Antabuse and Naltrexone and going to AA every day.
Her outlook is much more positive.
In the past she has been diagnosed with complex PTSD, (previous sexual assault and DV), Bipolar affective disorder, alcohol abuse, ADHD, anxiety and depression.
She needs ongoing support in the community and is ready to engage.
She has applied for NDIS and now has the DSP.
She presents well today, Low risk.
(v)On 29 July 2021, Dr G notes that the Applicant is not drinking alcohol and reporting naltrexone to be helping.[118] She stated her NDIS application was rejected because she has not had physiotherapy. Dr G completed a referral for physiotherapy under a GP Management Plan and Care Team Arrangements.[119]
(w)On 10 November 2021, the attending GP recorded that the Applicant was working as a disability advocate but had relapsed into alcohol use over the last three to four weeks.[120] Medications were prescribed for home detoxification.
[118] R1, H7, page 409.
[119] R1, H7, pages 493 to 494.
[120] R1, H7, page 411.
Evidence from Dr P1, consultant psychiatrist
In a letter dated 15 January 2020 to Centrelink, Dr P1 writes:[121]
This is to confirm that I have been treating [HKPN] since 27 January 2012 for Adult Attention Deficit Hyperactivity Disorder, intermittent bouts of depression and anxiety. She is on long term medication and has been treated by a number of psychiatrists and medical specialists since the age of 16 years for these conditions.
ADHD in her case has persisted into adulthood and caused impairment of concentration, distractibility, difficulty remaining focussed on tasks until completion, disorganisation, restlessness/fidgeting and impairment of short term memory. Her depression can also contribute to impairment of concentration as well as to issues of motivation and energy.
[121] R1, H4, page 107.
Dr P1 has provided two reports dated 4 May 2021[122] and 4 June 2024[123], in respect of the Applicant’s current application before the Tribunal. The Tribunal notes several psychosocial impairments identified in these reports, including:
[122] R1, H8, pages 755 to 762.
[123] R1, H8, pages 747 to 753.
(a)Impairments in communication and social interaction including a tendency to talk incessantly and rapidly, sometimes with tangential thought process.[124] She can talk over other people causing others to perceive her as being annoying, rude or even overly aggressive at times. She also tends to share inappropriate and sensitive, confidential information about herself or family members. Dr P1 opines that these impairments are contributed to by executive functioning deficits of ADHD, BPAD and C-PTSD, all of which cause emotional dysregulation and impairment of self-regulation generally.[125]
[124] R1, H8, page 747.
[125] R1, H8, page 748.
(b)She is often depressed with reduced motivation and has negative self esteem causing her to neglect her personal hygiene and self-care.[126]
(c)She is generally disorganised in her ability to manage her activities of daily living and finances.[127]
(d)She has deficits in her planning abilities and a tendency to make impulsive and poorly thought-out decisions.[128]
(e)She experiences anxiety and frequently socially isolates herself.[129]
(f)BPD causes interpersonal conflicts that have a destructive impact on close relationships. She has trouble maintaining trusted friendships.[130]
(g)She is prone to episodes of socially abnormal behaviour and lacks the ability to maintain healthy interpersonal boundaries.[131]
(h)Impairments in concentration, attention and short term memory.[132]
(i)She has difficulty problem solving, planning and in following complex instructions.[133]
(j)Impaired visuo-spatial function and often gets lost trying to find her way to places where she has an appointment.[134]
(k)She is prone to major mood swings, emotional lability and histrionic behaviour which can be triggered by her interaction with others.[135]
[126] R1, H8, page 750.
[127] R1, H8, page 749.
[128] R1, H8, page 751.
[129] R1, H8, page 750.
[130] R1, H8, page 750.
[131] R1, H8, page 751.
[132] R1, H8, page 747.
[133] R1, H8, pages 752 to 753.
[134] R1, H8, page 753.
[135] R1, H8, page 753.
Dr P1 also described physical impairments relating to the Applicant’s physical health conditions. He opines that she has difficulty walking long distances and standing for prolonged periods.[136] Dr P1 notes the Applicant tends to drop things when attempting to cook and doing activities that aggravate her hand pain.
[136] R1, H8, page 748.
Evidence of Dr S, surgeon
Following a referral from Dr G, the Applicant was assessed by Dr S, plastic surgeon regarding her right thumb injury. In a letter dated 6 May 2019, Dr S documents that the metacarpophalangeal joint is now stiff in the right thumb with an active range of motion of about 30 degrees compared to the left side.[137] He notes that it is stable and there was no tenderness in the first dorsal compartment. The Applicant had reduced grip and pinch strength on the right and he commented that it was difficult to be certain that a maximal effort was being undertaken on that testing.
[137] R1, H4, page 81.
Evidence of Ms OT, occupational therapist

At the request of the Respondent, Ms OT undertook a FCA at the Applicant’s home on 1 March 2023. The FCA included asking questions of the Applicant, completing some standardised assessment measures and observation of her demonstrating or simulating activities. Ms OT provided a FCA report dated 23 March 2023. She did not give evidence at the hearing.[138]
[138] R1, H9, pages 823 to 873.
As mentioned previously, although the Applicant has objected to the contents of the FCA report, the Tribunal will consider the relevant evidence contained within the report.
Ms OT documents reporting from the Applicant that she experiences:
(a)[(a)-(i) redacted].
With regards to the physical impairments arising from the Applicant’s musculoskeletal conditions, Ms OT noted the following:
[redacted].
Evidence of Dr NP, clinical neuropsychologist
At the Respondent’s request, Dr NP conducted a neuropsychological assessment of the Applicant at his consulting rooms on 6 June 2023. Dr NP administered a battery of standardised neurocognitive tests and provided an analysis of the results in a report dated 20 June 2023.[139] An assessment of premorbid cognitive functioning, intellectual functioning, verbal functioning, visual/special functioning, working memory, processing rate, memory and executive functioning was made.[140] Included in Dr NP’s testing were measures of performance validity which were considered to be within acceptable limits, indicative of the cognitive testing results being representative of the Applicant’s level of functioning at the time.[141]
[139] R1, H10, pages 874 to 895.
[140] R1, H10, pages 880 to 881.
[141] R1, H10, pages 882 to 883.
Dr NP’s evaluation of the Applicant’s cognitive impairments and functioning are summarised as follows:
(a)Premorbidly the Applicant was probably functioning at a high average ability.[142] She was functioning within the lower part of the average range at the time of the assessment.[143] At the hearing Dr NP explained that his assessment suggested she should be functioning intellectually in at least the top 10 per cent.[144]
(b)‘Her verbal skills are intact and there is no evidence to indicate that her ability to read and process information has been adversely affected’.[145] Dr NP concluded that there was no evidence from the testing of any impairment relating to her learning and memory for verbal information.[146]
(c)The Applicant’s ability to solve visual/spatial problems was below the level expected.[147] Dr NP opined that her memory for visual information was markedly impaired.[148]
(d)Her ability to process information rapidly was significantly impaired.[149] In his evidence at the hearing, Dr NP suggested that depression and the cognitive cost that has occurred as a result of alcohol consumption may be factors affecting her rate of processing information.[150]
(e)The Applicant’s ‘working memory (attention and concentration) was within the average range, although mildly lower than expected, given her high average premorbid level of functioning’.[151]
(f)She ‘had considerable difficulty in copying a complex visual design, raising the possibility of frontal lobe involvement’.[152] Dr NP considered this finding to be consistent with the presence of the Applicant’s psychiatric diagnoses. Recall of the visual design was also markedly compromised.
(g)In the evaluation of cognitive processes mediated by the frontal lobes (executive functioning) the Applicant had difficulties with regard to dual tracking and especially with regard to cognitive flexibility.[153] Dr NP explained that these cognitive processes are important in planning, judgement and in regulating behaviour. In his oral evidence Dr NP stated that ‘when it comes to measures of cognitive flexibility then there was a limited performance on her ability to inhibit what are called unwanted responses, which would be consistent in daily life with some mild difficulty in impulsive control.’[154] Her phonemic fluency was ‘outstanding’ and semantic fluency was average.[155]
(h)The Applicant’s ability to do mental arithmetic was lower than expected from a person of her intelligence.[156]
(i)Her subjective experience of forgetfulness and difficulty with planning and organisation were consistent with the assessment findings in relation to executive functioning and depressed speed of processing information.[157] In Dr NP’s opinion, poor memory is commonly associated with the presence of depression and PTSD.
[142] R1, H10, page 880.
[143] R1, H10, page 882.
[144] Transcript, 6 November 2024 (Day 1 transcript), page 2.
[145] R1, H10, page 882.
[146] R1, H10, page 889.
[147] R1, H10, page 882.
[148] R1, H10, page 889.
[149] R1, H10, page 882.
[150] Day 1 transcript, page 5.
[151] R1, H10, page 882.
[152] R1, H10, page 882.
[153] R1, H10, page 882.
[154] Day 1 transcript, page 4.
[155] R1, H10, page 882.
[156] Day 1 transcript, page 10.
[157] R1, H10, page 891.
Dr NP also administered a standardised measure of mood and anxiety, the Depression Anxiety Stress Scale. The Applicant’s responses indicated extreme levels of depression and anxiety and a moderate level of stress.[158]
[158] R1, H10, page 881.
Consideration – s 24(1)(a)
The Act does not define the term impairment, but it is generally understood as involving a loss of, or damage to, a physical, sensory or mental function.[159] Relevantly, the NDIS Operational Guideline state as follows:
[159] Mulligan at [51].
An impairment is a loss or significant change in at least one of:
·your body’s functions
·your body structure
·how you think and learn.
To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below:
•intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information
•cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention
•          neurological – such as how your body functions
•          sensory – such as how you see or hear
•          physical – such as the ability to move parts of your body.
You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and tasks due to your mental health.
As mentioned above, the Respondent accepts that the Applicant has impairments to which a psychosocial disability is attributable.[160] The Respondent has expressed the Applicants disability attributable to psychiatric and psychosocial conditions flowing from alcohol dependence/ substance abuse disorder, PTSD, BPD, BPAD and ADHD. However, the legislation requires the decision maker to consider the concept of impairment rather than conditions or diagnoses.[161]
[160] R1, H1, page 2 at [13.1]
[161] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [69].
Having considered the evidence above, the Tribunal is satisfied that the Applicant experiences the following impairments to which a psychosocial disability is attributable:
(a)Impairments in personal and interpersonal skills;
(b)Impairments in temperament and personality function;
(c)Impairments related to energy and drive;
(d)Cognitive impairments; and
(e)Impairments in the regulation of emotion and the range of emotion.
While the Tribunal does have some concerns relating to the reliability of the Applicant’s self-reported information, as discussed previously, the Tribunal is satisfied that there is clear evidence of the Applicant’s psychosocial impairments that have been documented from a variety of sources, based not only on self-reporting, but also from direct clinical observations of her mental state.
Accordingly, the Tribunal is satisfied that the Applicant has impairments to which a psychosocial disability is attributable and that she satisfies s 24(1)(a) of the NDIS Act.
The Respondent also accepts that the Applicant experiences disability attributable to a physical impairment arising from right ulnar collateral ligament injury.[162] On the basis of the evidence provided by Dr G and Dr S, the Tribunal is satisfied that the Applicant has a disability attributable to an impairment in the mobility functioning of her right hand related to first metacarpophalangeal joint degenerative changes, associated pain and muscle weakness.[163] Although the Applicant describes reduced sensation in her right hand, there was insufficient medical evidence to support the presence of a sensory impairment caused by damage to the sensory function of her right hand.
[162] R1, H1, page 2 at [13.1].
[163] R1, H4 page 69; H4, pages 147 to 148; H4 page 81.
With respect to the impairments arising from the conditions of sciatica, Osgood Schlatter disease and trochanteric bursitis, the Respondent contends that the Tribunal cannot be positively satisfied that these conditions have caused loss of or damage to a physical, sensory or mental function.[164] The Respondent relies on the evidence of Ms OT who reported that the Applicant demonstrated ‘intermittent pain avoidant behaviours’. The Respondent contends that fear of pain, or pain itself is not an impairment. The Respondent accepts that if the result of pain ‘limits particular bodily functions’, it will likely constitute an impairment. Ms OT suggests the Applicant’s pain avoidant behaviours are in ‘the anticipation of pain and the fear-avoidance’, and that she ‘has higher functional tolerances and abilities than those which she demonstrates and utilises’ and therefore, the Respondent argues, there is insufficient evidence to identify with a degree of specificity any impairments arising from these conditions.[165]
[164] R1, H1, page 3 at [21].
[165] R1, H1, page 3 at [20].
The Tribunal accepts that pain is not an impairment in of itself, but pain might be such that it limits particular bodily functions and therefore constitutes an impairment.[166] The Tribunal considers it reasonable that the anticipation of pain and fear-avoidance can equally limit a particular body function and therefore constitute an impairment, albeit due to psychological factors rather than the immediate effect of pain sensation.
[166] Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 at [47]-[48].
The Applicant provided evidence that she experiences difficulties with knee movements due to pain. She also experiences back and hip pain and describes intermittently experiencing hip instability that has previously resulted in her falling. The Tribunal accepts that there is radiological evidence of pathology affecting her right hip and right knee.[167] The Tribunal also accepts the medical evidence that the Applicant has been diagnosed with Osgood-Schlatter disease, trochanteric bursitis and sciatica. However, the medical evidence does not specifically identify and elaborate upon what impairments the Applicant experiences because of her musculoskeletal conditions. Dr G identifies that the Applicant conditions affect her mobility in a broad sense[168], that she experiences knee pain[169] and that it is painful to walk[170] due to issues with her hips and knees. [redacted].
[167] R1, H7, pages 415 to 416.
[168] R1, H4, page 129.
[169] R1, H4, page 69.
[170] R1, H7, page 394.
Considered overall, and despite the limited evidence presented, the Tribunal is satisfied that the Applicant has an impairment in musculoskeletal function caused by the effects of pain, or the anticipation of pain, and physical deconditioning leading to a reduction in the speed of task completion, restricted physical functioning and a reduced ability to complete some activities of daily living. The Tribunal accepts that this impairment causes some disability.
Accordingly, the Tribunal is satisfied that the Applicant has a disability that is attributable to physical impairments and that she satisfies s 24(1)(a) of the NDIS Act.
The Tribunal accepts the medical evidence that the Applicant has suffered seizures possibly related to alcohol withdrawal and/or the use of hyoscine containing medication. It is also accepted that in 2020 the Applicant did not attend an assessment at the first seizure clinic because she said the appointment had been cancelled because of COVID restrictions. However, there is no evidence of further follow-up by this clinic or the outcome of an assessment by a neurologist. While the Tribunal is satisfied that because of having had seizures the Applicant is not permitted to drive and should avoid taking baths due to the risk of drowning were she to have a seizure, no evidence has been presented that she is experiencing impairments from having had seizures. There is insufficient medical evidence available to the Tribunal to be satisfied that the Applicant has a disability attributable to impairments arising from her history of seizures.
Is the impairment permanent, or likely to be, permanent? – s 24(1)(b)
The second task is for the Tribunal to consider whether the Applicants impairment or impairments are, or are likely to be, permanent.
Applicant’s evidence
Psychosocial impairments
With regards to treatments with medications, the Applicant stated at the hearing that she is prescribed olanzapine for BPAD.[171] She explained that while olanzapine had the positive effect of keeping her ‘even’ it also has the effect of making her ‘dull’ and like a ‘vegetable’. When asked by the Tribunal whether she takes olanzapine regularly, the Applicant stated, ‘I do, and I don’t…I’ll go through phases where I take it a lot…it does work for me, but it also makes me just – not me’.[172] She further explained that she also sometimes goes without her medication if she is anxious to contact her GP when she needs a repeat script or forgets to pick up a script.[173] The Applicant stated that she still doesn’t always remember her medications even though they are now Webster packed for her.[174]
[171] Day 2 Transcript, page 9.
[172] Day 2 Transcript, pages 10 to 11.
[173] Day 2 Transcript, page 43.
[174] Day 2 Transcript, page 32.
The Applicant has been taking sertraline each morning for around 4 years.[175] She is prescribed Campral for her alcohol use disorder. She stated that she is currently prescribed dexamphetamine for her ADHD which she takes on an ‘as needed’ basis.[176] The Applicant said that her psychiatrist (Dr P1) was aware of her taking this medication when she felt she needed it. The Tribunal asked the Applicant what Dr P1’s advice was regarding her using dexamphetamine in this way rather than daily, to which she responded, ‘well, I cannot speak for him, but he’s been my psychiatrist for a very long time’.[177] The Applicant stated she has an appointment with her psychiatrist every three to six months and that, in her view, he was comfortable with her current treatment.[178] She estimates that she consults her GP about every 2 months.[179]
[175] Day 2 Transcript, page 11.
[176] Day 2 Transcript, page 12.
[177] Day 2 Transcript, page 12.
[178] Day 2 Transcript, page 13.
[179] Day 2 Transcript, page 14.
At the hearing the Tribunal made enquiries of the Applicant with regards to her having had counselling or psychological treatment. The Applicant stated she had seen psychologists in the past but found the process of having to explain everything exhausting.[180] Further enquiry was made as to whether the Applicant has sought treatment from a psychologist on a regular basis or over a period of time. The Applicant responded that she had not and saw no point to it stating, ‘there’s nothing more exhausting than telling somebody who has no skills and no life experience and doesn’t know … like – where I come from…’[181] She explained that she had been receiving counselling from a sexual assault counselling service but that she hadn’t been for a while because she can’t get there.
[180] Day 2 Transcript, page 12.
[181] Day 2 Transcript, page 13.
The Tribunal asked the Applicant about Dr G’s recent statement that she was commencing DBT soon. The Applicant explained that she had been told that DBT is a therapy that has a high success rate for people with BPD.[182] She stated that none of her treating practitioners had ever recommended DBT for her and that it was something she found out for herself.[183] She stated that she had not accessed DBT as she did not have the finances. Following the hearing, the Tribunal received a series of emails from the Applicant dated 19 November 2024. The Applicant stated she had heard back from a BPD service and was pleased about this because she had been on the waitlist for their program for at least 12 months.[184]
[182] Day 2 Transcript, page 48.
[183] Day 2 Transcript, page 49.
[184] Emails dated 19 November 2024.
The Applicant gave evidence that she has regular admissions to hospitals A and B for both psychiatric and alcohol withdrawal issues.[185] She estimates that she may have an admission once per month. She stated that she had a recent admission to the inpatient drug and alcohol service for ‘detox’. The Applicant has recently been attending Alcoholics Anonymous. In response to being asked how often she attends, she stated, ‘it ebbs and flows, but … I’m starting to warm to people in AA…’[186]
[185] Day 2 Transcript, pages 14 to 16.
[186] Day 2 Transcript, page 20.
In the Applicant’s email in response to the FCA report, she provides the following with regards to her accessing mental health treatment options, particularly from engagement with community mental health services:[187]
In particular I take umbrage at the quote of the OT that I had complained that mental health treatment options that I have been offered in the past, that I had rejected out of hand as not of a high enough calibre to my mind.
… I explained clearly and sussinctly [sic] my challenges since my ex cut my much needed private health and having religiously attended at the [redacted] community mental health clinic to see a psychiatrist every week – even when I couldn’t afford the fuel to get there, I did and after about six months my psychiatrist was rotated and another temporary rotational registrar replaced him and then after raking over every awful, damaging humiliation since birth, he was then swapped out again and I felt that I was just being used for a test case and not getting far in enough to any real therapeutic benefits from the situation. I told your OT that it made me feel like more of a frightened, agoraphobic, isolated social misfit.
I was referred to [another] community mental health service last year and I was so hopeful and when I arrived to meet the psychiatrist that I was assured was permanent at the service, I was met by two psych nurses who told me that they had assessed me as not acute enough to meet their criteria and to get a mental health plan from my go [sic] for 8 sessions of psychology.
[187] Email from HKPN to Ms Dowell and the Tribunal, 19 November 2024.
In terms of accessing her formal supports such as her psychiatrist and her GP, the Applicant stated that she has utilised telehealth and will use an Uber for transport to face to face appointments.[188] She explained that when she gets paid, she purchases a prepaid Uber gift card if she has an upcoming appointment.
[188] Day 2 Transcript, pages 36 to 37; and page 40.
Physical impairments
The Applicant gave evidence at the hearing that she has been seeing a physiotherapist for her hip and knee conditions.[189] With regards to physiotherapy, she stated, ‘he’s actually really done some work, like, with my knees…he’s been absolutely amazing … and he’s given me exercises’.[190]
[189] Day 2 Transcript, pages 18 and 48.
[190] Day 2 Transcript, page 48.
When asked whether she had been assessed by any medical specialists with regards to her hip and knee conditions, the Applicant stated she had not because she could not afford the cost.[191] She explained that she had seen a hand specialist, Dr S, who is now deceased. She has not had any further assessment from another hand specialist regarding her right-hand injury.
[191] Day 2 Transcript, pages 18 to 19.
Evidence of Dr G, general practitioner

On 1 July 2024, Ms Dowell, on behalf of the Respondent, requested Dr P1 complete a report addressing several targeted questions to assist the Tribunal and the NDIA with regards to the Applicants impairments, treatment and functional capacity. Regarding impairments and treatments, the Respondent sought the following further evidence including:
…
3. With respect to the Applicant's impairments. please provide details of:
(a) Any past treatments/interventions that the Applicant has engaged in or undertaken (including provider, duration, frequency, [HKPN’s] compliance and the outcome).
(b) Any current treatments/interventions that the Applicant has engaged in or undertaken (including provider, duration. frequency, [HKPN’s] compliance and the expected outcomes).
4. Are there any other known, available and appropriate evidence-based clinical, medical or other treatments and interventions available in respect of [HKPN’s] diagnosed conditions (where appropriate please reference the relevant clinical guidelines and broader medical literature regarding the available treatment options).
(a) If so, please describe the treatments or interventions and the expected or likely outcomes.
(b) If there are any evidence based treatments or interventions recommended, please outline the expected timeframe required to establish the efficacy of the treatment/intervention.
5. Do you consider further engagement in treatments and intervention may remedy (i.e. cure) [HKPN’s] impairments?
6. How many times has [HKPN] attended appointments with you since December 2021?
7. Have you provided [HKPN]with any of the following since December 2021:
(a) Chronic Disease GP Management Plan;
(b) Team Care Arrangement; and/ or
(c) Mental Health Treatment Plan;
If so, please provide details of when you have provided these plans and evidence of their implementation and [HKPN’s] progress.
8. Have you provided [HKPN] with any referrals to specialists, psychologists, counsellors or other allied health professionals in the past 12 months? If so, please provide details of when the referrals were made and to whom.
No response to these targeted questions was received by the Respondent or Tribunal.
Evidence of Dr P2, consultant psychiatrist
The Applicant was referred to Dr P2, consultant psychiatrist, in 2014 by her general practitioner. In a letter dated 9 September 2014, Dr P2 outlines the Applicant’s history of excessive alcohol consumption with sequelae including blackouts which she opined was a poor prognostic indicator of future brain function.[242] Dr P2 noted that she tended to minimise the impact of her alcohol use. The Applicant described symptoms of generalised anxiety which Dr P2 considered to be one of the factors driving excessive alcohol consumption. The Applicant had seen psychiatrists in the past and had been prescribed Ritalin for adolescent ADHD. Dr P2 documents that the Applicant was recently seeing a psychologist but she did not find this helpful and ended this treatment when the psychologist threatened to make a mandatory child safety report because of the risks her drinking posed to her young son. She did not wish to see another psychologist for anxiety management. Dr P2 opined that acamprosate or naltrexone may be useful but that Ritalin, Duromine and antidepressants would be unlikely to be helpful.
[242] R1, H4, pages 74 to 75
In another letter from Dr P2 dated 22 October 2014, Dr P2 outlines ongoing alcohol use problems and noted the Applicant’s observation that when she had been abstinent from alcohol during her pregnancy and when her son was younger, she had functioned much better.[243]
[243] R1, H4, page 76.
In a letter from Dr P2 dated 13 April 2017, the Applicant is said to be making ‘excellent progress’, had been able to stop drinking and was pleased at the overall improvement in her wellbeing.[244] She is reported to have had an admission to Hospital D with a manic episode and was discharged on lithium, Seroquel (quetiapine), disulfiram (Antabuse), thiamine, paracetamol and oxycodone. The Applicant had gradually self-ceased quetiapine due to feeling over-sedated. She had some side-effects from lithium and reduced this before increasing it back again to the prescribed dose. The Applicant was not using disulfiram regularly, but rather taking an occasional quarter tablet when she felt there was a risk she may drink alcohol. Dr P2 concludes that there is an ‘obvious improvement in her mood and her ability to cope with day to day life’.
[244] R1, H4, page 79.
Evidence of Dr S, surgeon
In a letter to general practitioner Dr G dated 6 May 2019, Dr S (plastic surgeon) wrote, with regards to the Applicants right thumb injury and associated stiffness and weakness, of his advice that ‘gym and exercise to improve her deconditioning would be sensible’.[245] Dr S mentions that a nerve conduction study could be considered to exclude carpal tunnel syndrome, but he did not consider that to be a major factor in her current disability.
[245] R1, H4, page 81.
Evidence of Ms OT, occupational therapist
[redacted].
[redacted].
Evidence of Dr NP, clinical neuropsychologist
In the neuropsychological assessment report, Dr NP explained that because of the Applicant’s multiple comorbidities, it would be difficult to identify which has resulted in the specific cognitive deficits.[246] He further explained that alcohol dependence may affect learning and memory, the ability to deal with abstract concepts and reasoning.[247] Dr NP stated that ADHD is known to impact on executive functioning and that the effects of BPD can affect visual/special problem solving. Furthermore, the cognitive impact of BPAD may depend upon the phase of the disorder.
[246] R1, H10, page 883.
[247] R1, H10, page 883.
In response to a targeted question with respect to the Applicant’s compliance with treatment, Dr NP stated:[248]
There are grounds for some concern about compliance in that the client reported slipping back to consuming substantial amounts of alcohol. Her general practitioner would be able to advise on her patient’s compliance with medication.
[248] R1, H10, page 885.
With regards to whether supports could mitigate or alleviate the impact of the Applicant’s impairments, Dr NP stated in his neuropsychological assessment report:[249]
The client’s condition has been present for a number of years and is currently at the
level of resulting in her being functionally disabled. A combination of psychiatric
input, input from a case manager and resolving her specific difficulties and needs
may alleviate her situation to a degree.
…
The degree to which the client can regain a level of functional independence is
uncertain at best.
[249] R1, H10, page 891.
At the hearing, Dr NP was asked whether an impairment in executive functioning is potentially reversible. In his evidence he explained that alcohol can affect frontal lobe and executive functioning and it is possible for this to improve.[250] He stated further that in people with brain injury from contusions to the frontal lobe, over a period of time and with assistance, there can be executive function improvement.
[250] Day 1 transcript, page 7.
Consideration – s 24(1)(b)
For the purposes of s 24(1)(b) of the NDIS Act, the Tribunal must be satisfied that the impairment or impairments are, or are likely to be, permanent. Sections 24(2) and 24(3) further note that an impairment that varies in intensity or is episodic or fluctuating may be permanent.
In National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), Mortimer J considered the phrase ‘permanent impairment’ and stated:[251]
‘The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis.’
(Emphasis added)
[251] Davis at [130].
As explained in Davis, permanent does not mean ‘irreversible’, ‘untreatable’ or ‘long-term’.[252]
[252] Davis at [77] to [81].
Relevantly, the Access Rules provide the following guidance in considering when an impairment is, or is likely to be permanent:
5.4An 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.
5.5An 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.
5.6An 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).
5.7If 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.
In Davis, Mortimer J considered the meaning of ‘known, available and appropriate’ within the context of Rule 5.4 and explained the word ‘known’ connotes a treatment which can be identified by an Australian medical professional as suitable for a person’s particular impairment;[253] the word ‘appropriate’ means a treatment which has a capacity to ‘remedy’ the impairment and is suitable for the particular individual to undergo;[254] and the word ‘available’ should be understood as directed at what treatments an individual can, in reality, access.[255] Mortimer J further explained that the word ‘remedy’ means something approaching a removal or cure of the impairment.[256]
[253] Davis at [137].
[254] Davis at [137].
[255] Davis at [139].
[256] Davis at [136].
Are the Applicant’s psychosocial impairments permanent?
The Respondent contends that with regards to the Applicants psychosocial impairments, there is insufficient evidence for the Tribunal to be satisfied that the Applicant’s impairments arising from her psychiatric and psychosocial conditions are permanent.[257] The Respondent argues that the Tribunal cannot be satisfied that Access Rule 5.4 and 5.6 are met.
[257] R Closing, page 3 at [16].
The Tribunal accepts the evidence as to the Applicant’s diagnosis of alcohol use disorder, BPD, BPAD, ADHD, C-PTSD. The Tribunal does not dispute that the psychosocial impairments relating to these conditions have been long-standing. Nevertheless, as stated earlier, the test as to whether an impairment is permanent under the provisions of the NDIS Act does not rest solely on the impairments having been long-standing in their duration.
The Tribunal was faced with documentary medical evidence that did not adequately address the statutory requirements to establish the permanency of the Applicant’s psychosocial impairments. The material sought under summons by the Respondent to assist the Tribunal was also not conclusive in this regard. In proceedings before the Tribunal, there is no formal onus of proof upon the Applicant. However, a decision is not likely to be made in the Applicant’s favour unless evidence and information sufficient to meet the statutory requirements is provided.[258] It is the Applicant who bears the practical onus of putting before the Respondent, and the Tribunal, the evidence that will establish her eligibility for the NDIS.[259]
[258] Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11 at [68].
[259] DQKZ and National Disability Insurance Agency [2024] AATA 2276 at [40].
For the reasons to follow, the Tribunal is not satisfied that the Applicant’s psychosocial impairments would be enduring if she were to engage in consistent treatment and management of her psychiatric conditions. This is not to suggest that the Applicant’s mental illnesses can be cured, or that she does not experience considerable impairment, but rather that the impairments arising from these conditions could be significantly improved with regular adherence to prescribed medication, consistent support and follow-up from a mental health service and alcohol service, and engagement in evidence based psychological treatments.
At the hearing the Applicant gave evidence that she continued to be prescribed olanzapine, sertraline, dexamphetamine and acamprosate. She stated that olanzapine worked for her and helped keep her ‘even’, consistent with her self-reporting to Dr P1.[260] The Tribunal understands olanzapine to be an antipsychotic and mood stabilising medication approved for use in Australia in preventing the recurrence of manic, mixed or depressive episodes in BPAD type 1 and in the treatment of psychoses and acute manic episodes.[261] The Applicant also gave evidence that olanzapine had negative effects of making her ‘dull’ and like a ‘vegetable’. Dr P1 did not record any side effects other than of her concerns that she had been gaining weight since being on sertraline and olanzapine.[262] The evidence from Dr P1 is that the Applicant has not been consistently taking olanzapine[263], this being confirmed by the Applicant in her evidence at the hearing.[264]
[260] R1, H5, page 272.
[261] Australian Product Information – Olanzapine, 19 June 2023, page 2 // R1, H5, page 272.
[263] R1, H5, pages 272 and 273; H8, pages 743 and 745.
[264] Day 2 Transcript, pages 10 to 11.
Previously the Applicant was prescribed the mood stabilising medication lithium following an admission to hospital with a manic episode. The evidence is that her mental state improved whilst on this medication.[265] The Applicant later ceased this medication as she was concerned about side effects.[266] There is no evidence before the Tribunal that she undertook that process under the supervision of a psychiatrist or medical practitioner. The evidence is that the Applicant’s adherence to prescribed lithium was inconsistent and included a period of non-compliance for five months.[267]
[265] R1, H7, page 381; H5, pages 271 and 274.
[266] R1, H5, page 271.
[267] R1, H7, pages 381 and 541.
The Applicant is prescribed dexamphetamine for treatment of her ADHD. Her evidence is that she does not take this medication regularly but rather uses it as required.[268] The Tribunal notes medical evidence of periods when the Applicant has not been taking medication for the treatment of her ADHD.[269]
[268] Day 2 Transcript, page 12
[269] R1, H7, page 483; H8, page 743.
With regards to medication compliance more broadly, the Applicant acknowledged at the hearing that there are times when she goes without her medication when she runs out of scripts.[270] She also stated she forgets doses even though her medications are now Webster packed.[271] The Applicant argues that it is the support she would receive under the NDIS that would assist her with these medication issues.[272]
[270] Day 2 Transcript, page 43.
[271] Day 2 Transcript, page 32.
[272] R1, H3, page 23 at [30].
In the evidence from the Applicant’s most recent assessment by Dr P1 on 4 June 2024, the Tribunal notes that her mental state was improved and that she had completed the first stage of joining the Army Reserves in their legal section.[273] She was being prescribed olanzapine, sertraline and dexamphetamine. Acamprosate had been recently commenced at the Drug and Alcohol Service. She was benefiting from the use of Webster packs and was reported to have been abstinent from alcohol and was attending Alcoholics Anonymous.
[273] R1, H8, page 743.
The Applicant has previously had psychotherapeutic treatments recommended to her, such as cognitive behavioural therapy and DBT. The evidence establishes that the Applicant views engagement with a psychologist to be ‘pointless’. She has previously not been interested in a referral for DBT[274] or when this had been available, she had not been able to attend because she was unable to drive there or take public transport.[275] At the hearing the Applicant stated that she was unable to afford DBT. The Tribunal does not accept that DBT has not been ‘available’ to the Applicant due to accessibility issues relating to transport or cost. The Applicant gave evidence that she is good at ensuring she allocates funds toward a prepaid uber card for transport to appointments with her treatment providers. No evidence has been provided to the Tribunal regarding the cost of DBT that the Applicant would incur, nor has any evidence been provided that she is not able to access DBT or psychotherapy under the public health system. The Chronic Disease Management Plan prepared by Dr G on 23 August 2024 indicates that the Applicant will be starting DBT at the NMH. [276] As mentioned previously, Dr G was withdrawn as a witness on the first day of the hearing and so the Tribunal could not clarify with her the nature of the services provided at NMH. Nevertheless, the Tribunals understanding is that NMH is a public community mental health clinic and therefore the Tribunal considers it unlikely that clients would be charged a fee to access services at this clinic. While Dr G has provided supporting evidence that the Applicant has engaged in psychotherapy for BPAD and C-PTSD, no further detail has been provided on the type of psychotherapy and the outcome for the Applicant. Furthermore, the Applicant’s evidence is of not having received any ongoing therapy from a psychologist.[277] The Applicant has also recently informed the Tribunal that she has been contacted by a BPD service that she was referred to over a year ago.[278]
[274] R1, H7, page 641.
[275] R1, H8, page 743.
[276] R1, H8, pages 764 to 767.
[277] Day 2 Transcript, page 13
[278] Email from HKPN to Ms Dowell and the Tribunal, 19 November 2024.
The Tribunal has considered the diagnostic criteria with regards to General Personality Disorder (GPD) and BPD described in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR).[279] After the hearing the parties were invited to make submissions regarding the DSM-5-TR criteria, particularly with regard to the enduring nature of personality disorders. The Respondent contends that pursuant to the NDIS Act, the enduring nature of the condition is a separate matter to the enduring nature of the impairment caused by the condition.[280] The Respondent further argues that the condition can stabilise and that the enduring pattern of inner experience and behaviour that the Applicant experiences could be explained by way of an exclusionary criteria for that of GPD in the DSM-5-TR, namely that the enduring pattern could be attributable to the physiological effects of alcohol.[281]
[279] American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2022.
[280] R Closing, page 2 at [11].
[281] R Closing, page 3 at [12b] and [14].
In her email responses, the Applicant did not make specific submissions regarding the DSM-5-TR personality disorder criteria.
The Tribunal notes the DSM-5-TR criteria for a GPD includes an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual’s culture and, among other things, that the enduring pattern leads to clinically significant distress or impairment. The Tribunal understands that despite the enduring nature of BPD, evidence-based treatments, particularly psychotherapeutic based treatments, are available and can achieve significant improvements in the impairment resulting from the condition, such that they may remedy the impairment or impairments to the degree contemplated in Davis as ‘something approaching a removal or cure of the impairment’.[282]
[282] Davis at [136].

The Tribunal accepts the conclusion reached by Dr NP that because of the Applicant’s multiple comorbidities, it is difficult to identify which has resulted in the specific cognitive deficits evident from his assessment.[283] Dr NP was unable to comment on the effectiveness of the Applicant’s psychiatric treatment or whether at some point in the future a full or partial cure could be achieved.[284] Dr NP considered that a psychiatrist was best placed to provide such an opinion. Dr P1 identifies that the Applicant has several cognitive deficits related to her ADHD and other psychiatric disorders, however to what degree, if any, these cognitive impairments could be remedied with treatment is not discussed.[285] The Tribunal accepts Dr P1’s opinion that the Applicant’s impairment in concentration is partially alleviated by stimulant medication, but Dr P1 has not provided evidence as to whether this impairment may further improve were the Applicant to take these medications on a regular daily basis as prescribed.
[283] R1, H10, page 883 at [2].
[284] R1, H10, page 886 at [5.2.vi]
[285] R1, H8, pages 752 to 753.
With regards to evidence-based treatments, the Tribunal is not satisfied that the Applicant has fully engaged in these treatments. Due to the Applicant’s inconsistent compliance with medications, for which there is evidence of efficacy with regards to her psychosocial impairments, the Tribunal is unable to form a view that there are ‘no known, available and appropriate’ medical treatments that would likely remedy her impairments (Access Rule 5.4). The Tribunal’s view is that it is only after the Applicant’s impairments have been assessed following a period of regular adherence to recommended treatment, and that evidence provided to the decision maker, that an accurate determination could be made on whether her impairments are permanent within the meaning of the NDIS Act. Similarly, the Tribunal finds that DBT and psychological therapies are known, available and appropriate treatments that the Applicant has not yet undertaken. Furthermore, the outcome of what treatment may be available to her following her referral to a BPD service is yet to be established.
While Dr P1 has been assessing the Applicant over the past several years, generally twice per year[286], the evidence is that he has been reviewing her primarily for the management of her ADHD. There is insufficient evidence before the Tribunal that Dr P1, in his capacity as a psychiatrist, has been providing ongoing assessment and treatment of the Applicant’s other psychiatric disorders for which she experiences psychosocial impairment. It would appear that the management of these conditions has been primarily undertaken by the Applicant’s general practitioner. The Tribunal considers that Access Rule 5.6 is enlivened in this situation in that her psychosocial impairments ‘may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent’. Given the nature of her impairments, the Tribunal considers that such a review would be most appropriately undertaken by a psychiatrist and/or a multidisciplinary community mental health team.
[286] The Tribunal notes that between 2012 and June 2024 the Applicant was reviewed (by telephone or in person) once per year in 2014, 2015, 2016 and 2024; twice per year in 2012, 2020, 2021 and four times in 2023.
The Tribunal acknowledges that the Applicant engages with Alcoholics Anonymous for support and that she is currently being prescribed acamprosate. The Tribunal accepts that she has had repeated short stay inpatient admissions to the Drug and Alcohol Service for alcohol withdrawal over the years, including in recent weeks.[287] However, there is insufficient evidence before the Tribunal of her engagement with such a service in the community for ongoing support and counselling with regards to her alcohol use disorder. Dr G indicated that the Applicant has engaged in ‘[r]ehab programmes’[288] and Dr P1 stated that the Applicant has spent time in long term rehabilitation at an alcohol and drug residential therapeutic community a few years ago.[289] The Applicant had reported to Dr P1 in 2020 that she had been abstinent from alcohol for almost a year after attending a residential rehabilitation facility six years previously. There is also evidence that she had self-discharged herself from the alcohol and drug residential therapeutic community because she stated, ‘it did not help’.[290] Nevertheless, the evidence establishes that during periods of abstinence from alcohol the Applicant’s mental state and functioning improves.[291] Considered overall, the Tribunal cannot be satisfied that the Applicant has consistently engaged in available evidence based treatments for impairments arising from her alcohol use disorder.
[287] Transcript Day 2, page 14.
[288] R1, H7, page 127; H7, page 401.
[289] R1, H8, page 747
[290] R1, H4, page 146.
[291] R1 H7 pages 384, 403, 405, 492 and 639 to 642; H8, page 743.
The Tribunal is mindful of Access Rule 5.5 in reaching its decision, whereby 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. However, until such time that there is information relating to the Applicant’s response to adhering consistently to recommended treatment and determining whether or not psychotherapeutic interventions have remedied her impairments, the Tribunal is not satisfied that making a finding of permanency under the provisions of Access Rule 5.5 is possible.
Considered overall, in the absence of evidence that there are no known, appropriate and available treatments that could remedy the Applicant’s psychosocial impairments, and without an understanding of how the Applicant’s conditions may respond to such treatments or of her clinical response to current treatments being consistently adhered to, the Tribunal is not satisfied that those impairments are permanent as that word is to be understood in s 24(1)(b) of the NDIS Act.
Are the Applicant’s physical impairments permanent?
The Tribunal has found that the Applicant has physical impairments caused by right ulnar collateral ligament injury, Osgood-Schlatter disease, trochanteric bursitis and sciatica. The Tribunal accepts that the Applicant has been obtaining physiotherapy which has been of some assistance to her with regards to managing her hip and knee pain.
With regards to the impairments arising from right ulnar collateral ligament injury, the evidence establishes that the Applicant was assessed in 2019 by a surgeon, Dr S, who recommended gym and exercise to improve her deconditioning and that nerve conduction studies could be considered to exclude carpel tunnel syndrome.[292] Dr G recorded that the Applicant said Dr S had referred her for hand physiotherapy but that she could not afford this.[293] The Tribunal notes that the Applicant has been accessing a physiotherapist under a GP initiated chronic disease management plan. The Applicant’s evidence is that this condition has now deteriorated. At the hearing the Applicant stated that she has not had any further assessment from a hand specialist and could not afford this.
[292] R1, H4, page 81.
[293] R1, H7, page 393.
The Respondent contends that the Applicant has not availed herself to all available and appropriate evidence-based treatments that would likely remedy her impairments and therefore her physical impairments arising from her right hand condition cannot be considered permanent for the purposes of the NDIS Act.[294] The Respondent further contends that where nerve conduction studies have been recommended but not undertaken, the Tribunal cannot be satisfied that the impairments do not require further medical treatment or review for permanency to be established, pursuant to Access Rule 5.6.[295]
[294] R Closing, page 6 at [37].
[295] R Closing, page 6 at [38].
The Applicant submitted the following with regards to the recommendations of Dr S:[296]
Who is going to be paying the cost of said gym? Also, i do not have to subject myself to invasive surgery to line the pockets of a doctor that cannot even say with any certainty what surgery if any would bear on my mangled hand, unable to even commit to any actual diagnosis but insisting that he operate.
(Text capitalisation removed)
[296] Applicant’s submissions in response to RSFIC, R1, H3, page 25 at [41].
With regards to the Respondent’s contention that recommended nerve conduction studies have not been undertaken, the Tribunal does not agree that this would enliven Access Rule 5.6. The Tribunal’s reading of Dr S’s letter is not that a nerve conduction study was recommended but rather that this could be considered to exclude early carpal tunnel syndrome.[297] Dr S believed carpal tunnel syndrome was not evident as a major factor in the Applicant’s disability.
[297] R1, H4, page 81.
Although the Applicant has made submissions that surgery to her hand was insisted upon, there is no evidence before the Tribunal that Dr S has made such a recommendation. It would appear to the Tribunal that no further specialist review of her hand condition has been undertaken since the assessment of Dr S in 2019, although the Tribunal notes the Applicant requested a referral from Dr G to see a new hand specialist in 2021.[298] The Applicant submits that she cannot afford the cost of further specialist review and treatment. In the absence of evidence that she cannot access such specialist review and treatment through the public health system, the Tribunal cannot be satisfied that evidence-based treatment is not available to the Applicant on account of her financial position.
[298] R1, H7, page 405.
Regarding her impairment related to trochanteric bursitis, the Tribunal notes that Dr G has discussed with the Applicant the option of a steroid injection into the right trochanteric bursa if her condition worsens.[299] The Respondent contends that there is no evidence that the Applicant has undergone such treatment and therefore submitted that she had not undertaken all available and appropriate treatment to remedy her impairment.[300] Dr G indicated in the 2020 Supporting Evidence that the Applicant has had treatment with a steroid injection for right trochanteric bursitis,[301] although documentation of such treatment cannot be found in the summons material provided to the Tribunal.
[299] R1, H7, page 386.
[300] R Closing, page 7 at [44] – [45].
[301] R1, H4, page 119.
With regards to steroid injection treatment, the Applicant submitted the following:[302]
I am not putting that crap in my body and the tribunal can neither require me to do so, nor may the tribunal penalise me for my decisions regarding the introduction of synthetic steroids and material in my body.
(Text capitalisation removed)
[302] Applicant’s submissions in response to RSFIC, R1, H3, page 25 at [39].
The Tribunal agrees that it cannot require the Applicant to undertake steroid injection treatment that she does not consent to, nor would it seek to do so, nevertheless steroid injection into the trochanteric bursa is an evidence-based treatment that has been recommended should the Applicant’s condition not respond to conservative management measures.[303] The Tribunal finds that this is a known, available and appropriate clinical treatment for the impairment arising from trochanteric bursitis. Whether this treatment is likely to remedy her impairment cannot be determined by the Tribunal on the available medical evidence.
[303] R1, H7, page 415.
There is no documentary evidence of the Applicant having been referred to a medical specialist regarding the assessment and treatment recommendations for her hip, knee and back conditions. At the hearing the Applicant gave evidence that she had not done so and cited that she could not afford the cost involved for specialist review. As mentioned previously, the evidence has not established that the Applicant would be ineligible to access such specialist review and treatment under the public health system and so it cannot be concluded that this is unavailable to the Applicant on the basis of her financial situation. In Schwass and National Disability Insurance Agency [2019] AATA 28 (Schwass), the Deputy President considered the issue of the affordability of a treatment in the private sector as not being available to Mr Schwass, pursuant to Access Rule 5.4. The Deputy President’s view was that available in this context has the meaning of accessible or within reach and considered that had the legislation intended it to mean affordable it would have been a simple matter for the drafter to indicate that.[304] In Davis, her honour did not make a finding on this issue but accepted ‘that there may be some potential disconformity in introducing considerations of affordability into a determination of the criteria in s 24(1)(b)’ and that ‘the same potential disconformity might exist if the phrase “known available and appropriate” is understood to refer to practical accessibility’.[305]
[304] Schwass at [47].
[305] Davis at [133].
Considered overall, the Tribunal finds that the Applicant’s physical impairments may require further medical treatment or review before a determination can be made that permanency or likely permanency has been demonstrated (Access Rule 5.6). Furthermore, based on the evidence set out above, the Tribunal is not satisfied that the Applicant is accessing all known available and accessible treatments that would likely remedy her physical impairments (Access Rule 5.4).
Conclusion on s 24(1)(b)
The Tribunal must be positively satisfied on the evidence that the disability requirement of the Applicant’s impairments being permanent is met.[306] For the reasons provided, based on the available evidence, the Tribunal is not able to form a view that the Applicant’s impairments are permanent within the meaning of s 24(1)(b) of the NDIS Act.
[306] Schwass at [25] and [45].
As the s 24(1) criteria are cumulative and the s 24(1)(b) criteria has not been met, the Applicant does not meet the disability requirements for access to the NDIS.
Does the Applicant satisfy the early intervention requirements of Section 25?
As the Applicant has not met the disability requirements under section 24, the Tribunal will next consider whether she meets the early intervention requirements.
Rule 2.5(b) of the Access Rules outlines the rationale for early intervention as an alternative pathway to access the NDIS:
alternatively, a person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity. …
Section 25(1)(a) of the NDIS Act requires that the Applicant has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent. Section 25(1)(a)(iii) is not relevant in this case as the Applicant is not a child.
The Access Rules with regards to determining whether an impairment is permanent, or likely to be permanent, for the purposes of the early intervention requirements (Rules 6.4 to 6.7) are essentially a duplicate of the Access Rules 5.4 to 5.7. Therefore, as the Tribunal has determined that the Applicant’s impairments are not permanent within the meaning of the NDIS Act, it follows that she does not meet the permanency requirements within s 25(1). As the s 25(1) criteria are cumulative, the Applicant does not meet the early intervention requirements for access to the NDIS.
CONCLUSION
The Tribunal has found, on the totality of the evidence, that the Applicant’s impairments are not permanent pursuant to s 24(1)(b) of the NDIS Act. Furthermore, the Tribunal has found that the Applicant does not meet the early intervention requirements required under s 25(1)(a) of the NDIS Act.
The Tribunal understands that this will be a difficult decision for the Applicant to receive. The Tribunal acknowledges that the Applicant suffers from severe impairments and has done so for many years. This decision does not seek to diminish the impact of the Applicant's impairments and the impact they have on her life. The Tribunals finding is based on the requisite legislative criteria having not been met on the available evidence at this time.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

177. I certify that the preceding one hundred and seventy-six (176) paragraphs are a true copy of the reasons for the decision herein of General Member Dodd.

........[SGD]..................................................
Associate
Dated: 24 December 2024

Date of hearing: 6 and 7 November 2024

Applicant:
Self-represented

Counsel for the Respondent: Mr Lipari

Solicitor for the Respondent: Ms Dowell, National Disability Insurance Agency

Date of hearing:	6 and 7 November 2024
Applicant:	Self-represented
Counsel for the Respondent:	Mr Lipari
Solicitor for the Respondent:	Ms Dowell, National Disability Insurance Agency