Jalaudin and National Disability Insurance Agency

Jalaudin and National Disability Insurance Agency [2023] AATA 448 (21 March 2023)
Division:National Disability Insurance Scheme Division
File Number: 2020/3452
Re:Melissa Jalaudin
APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision
Tribunal:The Honourable Pru Goward AO, Senior Member
Date:21 March 2023
Place:Sydney

The Tribunal affirms the reviewable decision to refuse the Applicant access to the National Disability Insurance Scheme.
........................[SGD]................................................
The Honourable Pru Goward AO, Senior Member
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME - Access criteria – Disability requirements – Crohn’s disease – Spondylarthritis – Whether the impairment or impairments result in substantially reduced functional capacity to undertake one or more activities specified in s 24(1)(c) of the National Disability Insurance Scheme Act 2013 (Cth) – Whether the Applicant is likely to require lifetime support under the National Disability Insurance Scheme – needs of a child with disability - Decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 103
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 18, 21, 22, 23, 24,
National Disability Insurance Scheme (Becoming and Participant) Rules 2016
Cases
JLZT and National Disability Insurance Agency [2022] AATA 541
Secondary Materials
National Disability insurance Scheme - Operational Guidelines- Applying to the NDIA
REASONS FOR DECISION
Senior Member P Goward
10 February 2023
Introduction

Ms Melissa Jalaudin (the Applicant) has a diagnosis of ankylosing spondylitis (AS) and Crohn’s Disease and, on this basis, applied for access to the National Disability Insurance Scheme (NDIS) on 26 November 2019.
The National Disability Insurance Agency (the Respondent) refused the Applicant’s application on 23 April 2020. That decision was internally reviewed and the original decision was confirmed by the Respondent on 11 May 2020 (the Reviewable Decision). The Respondent refused the Applicant’s application on the basis that the Applicant had not satisfied all of the criteria in paragraph 24(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). In particular, the criteria in paragraph 24(1)(c) and 24(1)(e) had not been met. The Respondent also decided that the early intervention criteria contained in section 25 of the NDIS Act were not met.
The Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the Reviewable Decision on 9 June 2020.
Issue
Although the Applicant had initially identified early intervention as relevant to her application, both the Applicant’s opening and closing submissions at the hearing excluded section 25 as grounds for admission. Accordingly, the Tribunal is required to determine whether the Applicant meets the access criteria outlined in subsection 24(1) of the NDIS Act. The Respondent contends that criteria (c) and (e) were not met. For completion, these criteria are:
(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
…….
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
Background
The Applicant is a thirty-year-old woman diagnosed with ankylosing spondylitis (AS) and Crohn’s disease. She has a daughter who was born in October 2014 and has become a NDIS participant. Following her daughter’s birth, the Applicant developed back pain and was diagnosed with AS in 2015. In May 2017, the Applicant was further diagnosed with Crohn’s Disease.
The Applicant lives with her husband and daughter in Coffs Harbour, with support from her mother-in-law. The Applicant was born in France and has no other family in Australia.
The Applicant describes the impairments which resulted from her conditions as varying in intensity “from day to day”. Further, the Applicant submits that she has frequent “bad days” on which her functioning is most severely impaired and severe flares “intermittently”, which can result in hospitalisation.
The Applicant says that she requires the assistance of her husband and mother-in-law to perform household tasks and care for her daughter. Her husband is their daughter’s primary carer and according to the report of Occupational Therapist (OT) Mr Byrnes, which was not disputed, receives a “carer’s pension”. The Respondent also refers to the Applicant’s husband receiving “a carer’s allowance for occupying that role, meanwhile the Applicant continues to work full time”.
The Applicant’s mobility impairment is considered by both her treating rheumatologist, Dr Wong, and her child’s occupational therapist, Ms Ann Crane, as well as by herself, to have an impact on her ability to care for her child, with specific relevance to her child’s disability. Her struggle with self-care also impacts upon her ability to care for her child.
Despite the Applicant’s impairments, she is employed as a full time apprentice chef and her employer has been able to accommodate her impairments. The Applicant relies on an extensive range of medications for pain and symptomatic relief in addition to physiotherapy for improved mobility and pain relief.
The advice of the Applicant’s treating medical specialists is that her conditions are permanent and, having tried several treatments, further or alternative treatment is unlikely to remedy her impairments.
The Applicant has applied under section 103 of the NDIS Act to the Tribunal for review of the internal review decision made under subsection 100(6) of the Act confirming the original decision to not to admit her to the NDIS made under section 20 of the Act.
The Tribunal held a hearing by video conference in this matter on 20 and 21 October 2022. Three witnesses gave evidence: the Applicant, her daughter’s therapist Ms Crane, and Mr Byrnes, the independent OT who conducted a formal assessment of the Applicant.
The Applicant and the Respondent provided final written submissions to the Tribunal on 17 November 2022.
The Tribunal has considered all documents filed and taken into evidence in this proceeding and for the following reasons has affirmed the Reviewable Decision.
Relevant Legislation and Policy
The NDIS Act
The objects of the NDIS Act, as set out in Part 2 - Section 3, include to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability...
Subsection3(3) of the NDIS Act provides that, in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.
Part 2 - Section 4 of the Act sets out the general principles guiding actions under the legislation, including that:
(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2) People with disability should be supported to participate in and contribute to social and economic life.
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
Chapter 3 - Participants and their plans, section 21, stipulates that a person meets the access criteria if:
(a)the CEO is satisfied that the person meets the age requirements (see section 22); and
(b)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)the CEO is satisfied that, at the time of considering the request:
(i)the person meets the disability requirements (see section 24); or
(ii)the person meets the early intervention requirements (see section 25).
It is not disputed that the Applicant meets the age and residency requirements, nor is it disputed that the Applicant suffers from AS and Crohn’s disease and that these impose impairments on the Applicant’s functionality.
The Respondent disputes that the Applicant meets the disability requirements under section 24, in particular, subsections 24(c) and (e). For completion, the requirements of section 24 are stipulated as follows:
(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.
Relevantly in this case, subsections 24(2) and 24(3) expands upon the notion of permanency to account for variation of impairment viz:
(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 NDIS Becoming a Participant rules, 2016 (the Rules) paragraph 5.2 also expands upon the definition of variability to be applied:
an impairment that varies in intensity (for example because the impairment is of a chronic episodic nature) may be permanent, and the person is likely to require support under the NDIS for the person's lifetime, despite the variation.
The Respondent also referenced paragraph 5.8 of the Rules. For completion, this is as follows:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)     the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)     the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)     the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The NDIS Becoming a Participant Guidelines, while not having the legislative force of the Rules, provides policy direction to assist applicants. Relevant to this case, the Guidelines advises that:
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.
These disability-specific supports include:
·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
…
your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.
The Tribunal notes that the current Guidelines (1 July 2022) have been revised and provide guidance when assessing the impact of an episodic or fluctuating impairment. The guidelines state that:
You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity. Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.
Contentions and Considerations
The Applicant contends that her physical and sensory impairments arising from Crohn’s Disease and AS meet the requirements of subsection 24(1) of the NDIS Act since they:
·are likely to be permanent.
·despite their “fluctuating or episodic” nature, on an overall analysis significantly impair the Applicant’s functioning (JLZT and National Disability Insurance Agency [2022] AATA 541).
·result in the Applicant having substantially reduced functional capacity to undertake one or more of the areas given in section 24(1)(c), relevantly, social interaction, mobility and self-care.
·affect the Applicant’s capacity for social and economic participation.
·mean the Applicant is likely to require support under the NDIS for her lifetime.
The Respondent’s Statement of Facts, Issues and Contentions (SOFIC) does not take issue with the diagnosis of the Applicant’s conditions but contends that her impairments do not meet the terms of subsection 24(1)(c) because they do not result in substantially reduced functional capacity to undertake the activities identified at [27] (emphasis added).
The Respondent contends that the evidence also does not support the finding that the Applicant is likely to require support under the NDIS for her lifetime (see subsection 24(1)(e)).
The Respondent contends that the evidence does not support a finding that early intervention is likely to benefit the Applicant by reducing her future needs for support in relation to her disability (see subsections 25(1)(b) and 25(1)(c)).
Further, the Respondent contends that the Applicant does not meet the early intervention requirements of subsection 25(3), which states that:
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;
(b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The Applicant did not rely on contentions about early intervention supports at the hearing, nor in final submissions, and consequently subsections 25(1)(b), 25(1)(c) and 25(3) were not considered in this decision. This is not in dispute.
The Respondent’s SOFIC references Rule 5.8, as previously cited, and the Guidelines, Access, which provides at section 8.3.1 that:
Undertaking a task more slowly or different to others will not necessarily mean a person cannot participate effectively or completely in an activity” and “completing a task more slowly or in a modified way is not considered to result in a substantial reduction in functional capacity”.

Although the Applicant contends that her symptoms have significantly deteriorated since the completion of the original application in 2019, the Respondent submits that there is no medical evidence to support this contention in the last six months since the OT report of Mr Byrnes.
During the hearing and in final submissions, the parties referenced the episodic nature of the Applicant’s impairments, although the Respondent did not directly rely upon the episodic nature of the Applicant’s impairments to deny her access.
The Applicant noted subsection 24(2) of the NDIS Act that:
For the purpose 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.
Furthermore, the Applicant referenced recent changes (2 July 2022) to the guidelines which indicated a change in approach to the consideration of variability:
Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.
Accordingly, the Applicant proposes that the Tribunal takes an “wholistic” approach to assessment, accounting for good and bad days, since
the bad days must necessarily have a fundamental impact on her ability to plan her life and her overall functioning. Taken together, her functional capacity ought to be assessed considering her bad days.
The Respondent referenced the episodic nature of the Applicant’s impairment when considering the Applicant’s description of a recent “flare-up”, after Mr Byrnes had conducted his OT assessment, which the Applicant claimed “is like going in stages”. The Respondent did not disagree that “flare-ups” would contribute to the Applicant’s level of impairment.
In the Applicant’s written submissions, her decline over the past six months was considered to be consistent with the progressive nature of ankylosing spondylitis.
The Respondent’s written submissions contended that there is no medical evidence to support the Applicant’s claim of further deterioration since the assessment by Mr Byrnes six months earlier. The Respondent also contended in submissions that the Applicant’s claim of further decline since the OT’s assessment, given in her evidence and in cross-examination, was not corroborated by “lay evidence” from the Applicant’s husband or mother-in-law supporting the proposition that they had provided additional assistance in recent times. The Respondent also notes that a recent decline in functioning was not raised in the Applicant’s detailed opening, nor in the Applicant’s evidence-in-chief.

The Applicant further submitted that the decline since March 2022 is:
consistent with the progressive nature of ankylosing spondylitis and her previous evidence that her condition has declined over time. The Tribunal is to make its decision as at the present date, considering all the evidence before it.
The Tribunal proposes to consider the Applicant’s claims of more recent deterioration as part of considering evidence concerning each impairment and accepts the Applicant’s submissions that the episodic nature of the Applicant’s impairments is accounted for wholistically.
Regarding subsection 24(1)(c), the Respondent contends that the Applicant’s parental responsibilities are irrelevant to the consideration of the Applicant’s level of reduced impairment:
Section 24 directs attention at a person’s disabilities. It explicitly refers to self-care and self-management …The provision does not make any reference to a person’s functional capacity to care for others. To make such a finding would require the Tribunal to read into the legislation words which are not there.
Conversely, the Applicant’s written submissions contend that the Applicant’s parental responsibilities should be considered as part of determining the Applicant’s level of impairment:
In Ms Jalaudin’s case, the ordinary aspects of daily living include caring for her daughter. The Tribunal would consider Ms Jalaudin’s ability to care for her daughter in considering what she ‘can and cannot do’ in respect of the tasks of daily living. In doing so, it would consider what is in fact required in order to care for Ms Jalaudin’s daughter [in] particular, with her disabilities.”
The Applicant contends in closing submissions, relying on former Guideline 8.3.1, that her functional capacity should be considered relative to her age. The Applicant submitted that:
it is also important to note that the decision maker can, and in the Applicant’s submissions should, have regard to whether the need for assistance is “consistent with normal expectations of a person of a similar age: Former Guidelines 8.3.1.
The Respondent makes no contentions regarding the relevance of the Applicant’s age.
Overall, the Respondent contends that the Applicant’s impairments do not satisfy the requirements of subsection 24(1)(c) because they do not result in a substantial impairment in the Applicant’s functioning. The Applicant contends that, based on the Applicant’s parental responsibilities, her relatively young age, the episodic and advancing nature of the Applicant’s impairments and the wholistic impact they have on the Applicant’s overall functioning, they do result in substantial impairment.
The overall picture is of a young woman with significant limitations in her movement, as well as significant pain. The medical and functional assessment evidence is consistent with her own reporting and supportive of a finding of significantly reduced functional capacity. These impairments are serious in a young woman who, absent those impairment, would be expected to be entirely independent. These are not impairments either expected or tolerated for her age. They are fundamental impairments of her autonomy and dignity.
Regarding subsection 24(1)(e), the Respondent contends that where the Tribunal is persuaded that the Applicant’s mothering role is a relevant consideration, that transient state of affairs, that is, that period of the Applicant’s life where she is responsible for a child, may mean subsection 24(1)(e) is applicable. The Respondent anticipates that any determination with respect to subsection 24(1)(e), permanency, will:
turn on whether the Tribunal finds the Applicant satisfies the balance of the disability requirements.
Conversely, the Applicant contends that since there is evidence that Ms Jalaudin may benefit from supports not available through Medicare, such as handrails and extensive access to physiotherapy, there is therefore no dispute that she will require support from the NDIS for her lifetime.
The Tribunal considers that the critical issue in this case is whether the extent of the Applicant’s impairments results in substantially reduced functional capacity to undertake the activities outlined in subsection 24(1)(c) of the Act. The Tribunal accepts the Respondent’s submissions that whether the Applicant’s need for support from the NDIS will extend for her lifetime need only be considered should the Tribunal find that the Applicant has a substantially reduced functional capacity in one or more of the areas identified by the parties.
Evidence
Evidence of the Applicant’s functional capacity with mobility, self-care and social interaction was provided by the three witnesses: the Applicant herself, the OT Ms Crane (OT Crane) and the OT Mr Byrnes (OT Byrnes). Ms Crane provided an assessment report (Crane Report), as did Mr Byrnes (Byrnes Report) in addition to their oral evidence. The parties also referenced the reports of rheumatologist Dr Wong, who provided two reports, the first Wong Report and the second Wong Report respectively, and that of Dr Oliver, the Applicant’s treating General Practitioner at the time the original access request was made in 2019 (the Oliver Report), and the report of physiotherapists Simon Quinn and David Rose (the Physiotherapy Report).
The Applicant’s mothering role
Applicant’s Contentions
During the hearing, the Applicant submitted that the Applicant’s mothering role:
has a greater impact on Ms Jalaudin’s daily life and on her functional capacity because her needs to mobilise are much higher, she has a greater need to be able to, for example, run. It may not be necessary for most people in the community to run but without being able to run, she can’t independently take her child outside, or is restricted in her capacity to independent take her child outside.
OT Crane’s evidence was also inclined to consider the Applicant’s difficulty with household chores was related to her daughter’s demands:
she is an extremely unpredictable, chaotic little girl and cleaning and so forth is challenging and space is challenging. I believe Mel probably did the primary cleaning to the best of her ability.
Respondent’s Contentions
The Respondent’s written submissions relied on the drafting of subsection 24(1)(c) to contend that:
s 24(1)(c) explicitly refers to self-care and self-management … The provision does not make any reference to a person’s functional capacity to care for others…to make such a finding would require the Tribunal to read into the legislation words which are not there.
if it were accepted that an Applicant had substantially reduced functional capacity unless they were able to run after a child (or perhaps adult), and had sufficient strength to restrain them, where that person has mental health issues, a great number of people would satisfy the requirements of s 24 even if they were high functioning otherwise. Many able bodied people would have difficulty with this task. This cannot be what was intended by the legislature.
The Tribunal accepts that to define the extent of the Applicant’s reduction in mobility and self-care by including her caring responsibilities is not founded in the NDIS Act or Rules, which only identify the impact of an impairment on an Applicant’s self-care and self-management. This is despite the difficulties the Applicant may face in her everyday life with a child with disability. Accordingly, the Tribunal finds that evidence relating to the Applicant’s capacity to meet her caring responsibilities is irrelevant to determining whether there is a substantial reduction in her mobility or self-care. (The Tribunal also notes that the father is now the child’s primary carer, that the Applicant works full time and the Applicant’s daughter is also attending school, further reducing the significance of the Applicant’s mothering efforts).
The Applicant’s written submissions also contend that the Applicant’s level of independence should be considered relative to her age:
It is also important to note that the decision maker can, and in the Applicant’s submissions should, have regard to whether the need for assistance is “consistent with normal expectations of a person of a similar age”: Former Guidelines 8.3.1.
The Applicant’s SOFIC did not reference this consideration and the Respondent made no submissions about the relevance of the Applicant’s age. The Tribunal notes that the reference in the Former Guidelines 8.3.1 cited by the Applicant is not reflected in current guidelines. The Applicant failed to provide references to either relevant sections of the Act or the Rules which include, as a relevant consideration, her capacities relative to those of her age-group and the Tribunal is unaware of any sections of the Act which do so. Accordingly, the Tribunal does not consider it necessary to account for her impairment relative to the level of independence of her age-group.
Mobility
While the Applicant contends that her mobility, self-care, and social interactions are all substantially impaired by her conditions, it became clear during the hearing that mobility was central to her self-care and social impairments and that evidence related to mobility needed to also be considered in assessing those other identified impairment categories.
As evidence of the Applicant’s substantially reduced mobility, the Applicant, in written submissions, relies on the observations of Ms Crane, who identified that the Applicant “struggles to carry her daughter”, and cannot rise from the floor as “her hips often lock”. In her evidence to the Tribunal, Ms Crane reflected on the impact of the Applicant’s impairments on her ability to clean her house:
I think her inability to bend forward, her inability to go sideways, her inability to carry loads restricts her ability, and probably her inability to be resilient and responsive physically as well as the time engaged in cleanings, you know if you’ve got to continue to clean a home you’ve got to be consistent in that period, and I think she fatigues.
Ms Crane also said that the Applicant could only clean her house “at a basic level” and “had observed her trying to get [her daughter] into the car, trying to assist to get [her daughter] off the floor, trying to keep [her daughter] safe and her movements were quite challenging”.
The Applicant conceded in written submissions that there were several limitations to Ms Crane’s evidence. In particular:
First, Ms Crane’s report was made in 2020 and her last observations were prior to May 2021 and to that extent must be weighed with the more recent evidence of Ms Jalaudin’s functional capacity. Second, the observations were made in the context of Ms Crane’s treatment of [the Applicant’s daughter], and a limited formal assessment. Ms Crane therefore cannot be expected to comment on all aspects of Ms Jalaudin’s functional capacity.
As the Applicant’s Counsel further observed in her submissions during the hearing:
we do not rely upon her as an independent expert. She was never put forward on that basis. She has never provided a statement in advance of these proceedings. What she did was provide a statement in support of the internal review application.
The Applicant, however, contends in their final written submissions that Ms Crane:
is an occupational therapist who has had the opportunity to observe Ms Jalaudin over a long period of time and is able to comment on those observations.
The Tribunal accepts that the evidence of Ms Crane is of some use, notwithstanding the limitations identified by the Applicant.
The Applicant’s Physiotherapy Report prepared by Mr Simon Quinn and Mr David Rose (the Physiotherapy Report) dated 18 March 2020 recorded that the Applicant has
issues with pain throughout her spine, and a reduction in her functional abilities” and that her “condition has caused difficulty with mobility and weight bearing, difficulties with lifting objects and getting up out of a chair”.
The Physiotherapy Report also observed that she can mobilise the “majority of the time without aid”, but “when her back flares up she has difficulty weight bearing and requires the use of crutches” and that her “mobility tolerance [is] 50m before resting”.
The Applicant relies upon the Wong Report, dated 5 April 2021, where the doctor describes the impact of “flares” in her condition, resulting in the Applicant being:
often unable to get out of bed unassisted due to severe pain. She is usually able to walk without any assistance, but only for periods of up to 20 mins at a time. Her partner does most home activities of daily living, such as hanging out the washing and caring for the children. Working full-time exhausts Melissa, so she usually goes to bed when she gets home.
The Second Wong Report also reported that on an “average day”, “she struggles with bending which often causes pain in her legs/feet. Melissa is only able to comfortably stand for 10 mins. She also suffers chest wall pain due to involvement of rib joints”. The Report advised that on a bad day, she is:
in bed for most of the day due to back pain and “her husband has to assist with getting out of bed, showering her and has to cook and clean…” and that a bad day is “once every 10 days or so”.
In the Second Wong Report, he opined that the Applicant suffers from “substantially reduced functional capacity in both mobility and self-care”.
The Tribunal notes that the Wong reports fail to state clearly whether the doctor’s conclusions were on the basis of his direct observations, or the Applicant’s self-reported account of her restrictions to the doctor.
The Applicant’s own evidence at the hearing is that she is able to sit up for about one and a half hours, able to drive for up to 45 minutes, walk about 80 metres with a back brace but otherwise unassisted, but is not well enough to travel to see family in France, can only carry light loads and perform limited housework. She cannot hang washing, wash her hair, tie shoelaces or other tasks moving up above shoulders or down below her hips. She suffers from chronic pain, is reliant on painkillers and finds it “really difficult” to be intimate with her husband.
The Respondent’s written submissions also accept the evidence of the Byrnes Report, that her mobility was limited to 80 metres and she “required assistance from another person with respect to stated mobility activities at home “on an intermittent basis”.
The Respondent submitted:
that in her Statement of Evidence dated 28 January 2021, at paragraph [61] the Applicant states that at that stage she could “usually shower without assistance”, although around once a month her lack of mobility and pain prevented her from showering.
The Respondent acknowledges that Mr Byrnes recommended assistive technology such as to assist with washing below the knee level, a shower stool, overt-toilet aid, long handled shoe-horn and other equipment. However, the Respondent submits that whilst they may improve the Applicant’s functioning in that regard, it cannot be said that the Applicant is unable to effectively participate in the activity of self-care in their absence. Furthermore, it cannot be said that the Applicant usually requires assistance from other people with respect to self-care.
Further, that despite her struggles with mobility, the Applicant reports working approximately 38 hours a week, although with special support provided by her employer.
The Respondent also submitted that the Applicant “is performing well at work and described no particular difficulty accessing, moving around or navigating the work environment”, including toileting. The Closing submissions cited this exchange between counsel and the Applicant:
What do you cook? What kind of things? --- All kinds of things. So we can finger food, we can do buffets, banquets, anything you want.
So you are personally hands-on with the cooking, correct?---Yes, that’s my job.
The Applicant, in evidence, outlined her limitations very differently. The Applicant stated that:
I don’t clean the fridge, because I can’t because it’s too low. So someone else - sometimes my boss does it, which should be my job as an apprentice, not his. Like there’s a lot of things that I don’t do that should be my responsibility. Like I can’t carry pots, if there’s pasta to be cooked I tell someone to put a pot on the fire.
The Applicant and Respondent both referenced the Operational Guidelines description of mobility being “how easily you move around your home and community, and how you get in and out of a bed or chair…”
The Respondent considered that Mr Byrnes confirmed the Applicant’s independent mobility, albeit noting that she often moved slowly, as anticipated by the Guidelines at 8.3.1 “completing a task more slowly or in a modified way is not considered to result in a substantial reduction in functional capacity.”
The Applicant cited the evidence of OT Byrnes, who reported that the Applicant moved “in a slow and cautious manner”, holding onto furniture for support”. The Applicant relied on the Byrnes Report to state that:
She requires physical assistance to mobilise including “hands on” assistance on a weekly, or near weekly basis with bed and chair transfers, general household mobility and toilet transfers.
In closing submissions, the Applicant also relied on the evidence of OT Byrnes and concluded that:
the Applicant has a reasonable need for aids and equipment, and such equipment “will improve the applicant’s level of independence”. My Byrnes gave careful and detailed evidence of the benefits of the aids he recommended.
The Applicant, in cross-examination of OT Byrnes, challenged his assertion that she was observed to be independent in her transfers. Working from photographs in the Byrnes Report, he agreed that the Applicant used the assistance of “things”, notably the door handle and wall, to rise from the toilet. The Applicant suggested that photographs showed the Applicant relied on furniture for support when rising from her bed:
“you also refer to transferring while holding onto furniture for support?---Yes, correct, yes.”.
The Applicant proposed to OT Byrnes that:
you don’t, by that, mean that she has no limitations in her capacity to undertake those movements?---No, that she was observed to require using the furniture as an aid, if you will, yes.
In re-examination, the Respondent took OT Byrnes to the same photographs and explored the Applicant’s movements in rising from her bed. There is no photograph of the Applicant putting her hand onto the bedside chest of drawers and the following clarification was sought and obtained:
Can you remember what stage between those two photographs her hand goes on the chest of drawers?--- I - my memory is not that precise for me to be able to say exactly, with certainty, at what point. It - obviously, it was between leaving the bed and me taking the photograph at that point.
Yes?---That she used the furniture, if you will, as an aid as well.
And from a - - -?---As your colleague has put it to me.
And from a seated position, from your examination of her, would it have been difficult for her to reach up to wear the chest of drawers is? --- I - yes, because as I said previously, she does have some limitations with reaching above, sort of, shoulder height, particularly with loading.
And I take it that would - well, to your loading point, if she had managed to get her arm up there, then there’d have to be a utility of doing that in terms of loading of partial body weight at least, is that right?---Yes, if she was going to use it as a, like, a point of lever on a force, yes.
And if you do assume that she did need to use that at some point in the process, would you accept that something like a walking stick could have taken its place?---At least a different type of aid, yes.”
The Tribunal considers that OT Byrnes is a professional and honest witness who sometimes struggled to interpret photographs and a report written several months earlier but finds, considering the evidence provided, that the Applicant had only minor use of furniture when rising from her bed and of the toilet door handle and wall when rising from the toilet.

The Tribunal therefore accepts the Respondent’s contention that the furniture relied upon for transfers by the Applicant could be replaced by items such as “bathroom grab rails” which “are commonly used items”.
The Applicant’s final submissions rely upon OT Byrnes’ observations about the Applicant’s mobility and self-care, which confirmed the Applicant’s impairments, including a “loss of capacity to perform more than light lifting and carrying”, requiring additional assistance when her symptoms are aggravated, a limited capacity to perform tasks above shoulder height or in awkward positions, physical assistance with transfers and moderate assistance with self-care tasks. OT Byrnes also reported a level of pain “with regular postural changes”. He supported the need for disability specific aids to assist her.
On the day of the OT Byrnes assessment, while the Applicant was able to mobilise independently, the Byrnes Report included the Applicant’s self-reported restrictions in mobility as not independent for: toilet transfers three times per month, bed transfers one or twice a week and chair transfers once or twice per week. He observed her being “able to independently reach overhead on two consecutive occasions”, “able to independently reach forward on two consecutive occasions, able to independently bend to fingertips to knee level on three consecutive occasions” and independently able to lift and carry a series of light weights. She was also “able to hold onto light items”. These observations were accepted by the parties.
The conclusion of the Byrnes Report, that the Applicant is not substantially impaired in mobility, self-care and social interactions, were contended to be incorrect by the Applicant. Under cross examination, OT Byrnes confirmed that he had excluded “acute episodes” and, the Applicant submitted, “unfairly limited the assessment to times where she did not require hands-on assistance”. The Applicant submitted that OT Byrnes did not take “the correct approach…in applying r 5.2, which, for completion, addresses variability in the level of impairment as an impairment that varies in intensity (for example because the impairment is of a chronic episodic nature) may be permanent, and the person is likely to require support under the NDIS for the person’s lifetime, despite the variation”, and “excluded acute episodes”, and “as a result…he has approached the formation of these conclusions incorrectly”.
The Applicant also contends that OT Byrnes did not correctly apply r 5.8 in reaching his conclusion. This rule, for completion, states that :
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)     the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)     the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)     the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The Applicant’s closing submissions describe OT Byrnes’ incorrect application of r 5.8 as follows:
His comments on capacity to independently mobilise appear to be limited to considering whether she can, to the extent identified in the report, move around her home and outside, and perform chair, bed and toilet transfers without the assistance of another person – it did not take account of her use of furniture. It is accordingly not determinative of whether she has substantially reduced functional capacity.
The Tribunal accepts that OT Byrnes, under cross-examination, made several concessions about the limitations of his conclusions, such as the exclusion of bad days, and acknowledged that the Applicant required the assistance of the wall, doorknob and, to a minor degree, a chest of drawers when standing. OT Byrnes acknowledged that his report could have been clearer:
So, I could have said, she reported needing help with transfers, sit, or stand, certain frequency, or off the bed certain frequency. I think that would have been clearer for the report and for the tribunal.
The Tribunal accepts the Applicant’s contention that OT Byrnes “approached the formation of his conclusions incorrectly. The Tribunal must disregard those portions of his report”. The Tribunal also accepts the Applicant’s contention that OT Byrnes’ other evidence can be accepted.
The Tribunal, in formulating its decision, has relied upon the assessments provided in the Byrnes Report, but not upon its conclusions regarding reduction in functionality.
The Tribunal notes that OT Byrnes did not directly assess the Applicant’s mobility or other functional capacities in the workplace, where she is employed for 38 hours a week as an apprentice chef with additional managerial responsibilities.
Regarding the Applicant’s workplace mobility, the Respondent contends that “aside from equipment being placed more readily in reach, the Applicant did not describe receiving assistance from other people in the workplace”…nor “describe an particular difficulty on account of digestive and gastrointestinal symptoms due to Crohn’s disease”. Further, “the Applicant gave evidence that she cooks, goes to the functions and manages a team of people” and “her work hours were typically from around midday until the restaurant’s close”.
The Applicant gave evidence that she was responsible for her own workstation and would “wipe [her] bench”. The Applicant’s written submissions described her workplace limitations as:
In performing her work, there are a number of aspects of the work she can do because they fit within her impairments or, importantly, because accommodations have been made for her. At functions, she can delegate the work she is not physically able to do. She is given “more responsibility than an apprentice and with that gives me a team and then that team does the work that I can’t do. I can allocate everything which I can’t physically do, which is kind of an advantage for me otherwise I wouldn’t be able to do it…
She has tasks adjusted to suit what she can do, for example others in her team prepare and carry dough, move pizza trays from their usual space down to her workspace where she is able to reach them and if she needs to change her ‘fridge’ or bring something heavy over then other team members will do that for her.
The Applicant has submitted that in the workplace she is not “simply doing tasks in a different way. It requires express accommodations from her employer…”
In the First Wong Report, Dr Wong stated that: “Her condition has caused Melissa to miss approximately 2-3 days of work per month…Working full-time exhausts Melissa, so she usually goes to bed when she gets home.”
The Tribunal notes that no corroboration of the Applicant’s sick days was provided.
The Applicant’s evidence before the hearing was that she was keen to finalise her apprenticeship and set up her own catering company, despite the unpredictable “flares” of the Applicant’s conditions as described, and the limitations to her activities described by Dr Wong.
During the hearing and in closing submissions, the Respondent challenged the circumstances of the signing of the access form by Dr Oliver. The Respondent submits “that if there were inaccuracies in the form these would have been addressed by the Respondent (sic) [Applicant]”. While the Oliver Report might support the Respondent’s position that the Applicant does not have substantially reduced functional capacity, (although this was not relied upon in the Respondent’s final submission) the Tribunal agrees with the Applicant that the report was nonetheless in 2019 and of less relevance to an Applicant claiming to have a worsening condition, than the more contemporaneous reports available. Further, the Tribunal notes that it is unusual practice for patients to correct their doctors, as proposed by the Respondent.
The Respondent’s submissions also addressed the Applicant’s contention that she has suffered from further decline in mobility and her self-care capacity since the Byrnes Report in March 2022. For example,
she required hands on assistance around on house on average once or twice a month at the time of his assessment in March 2022, the Applicant gave evidence that this had changed in the months which followed, and at the time of the hearing she required help every week. The Applicant suggested that she needed increased help from May or June 2022.
The Respondent contends that the decline in functioning described by the Applicant since May or June 2022 was “a significant decline…” but there is “no medical evidence supporting a significant decline in function. Furthermore, no lay evidence was called…”.
The Applicant considers the Applicant’s description of her decline in the months following the assessment by OT Byrnes to be consistent with the degenerative nature of her medical conditions. The Applicant also references Dr Wong’s evidence on this point, that the Applicant “will continue to have repeated flares of inflammatory arthritis and colitis”.
The Applicant’s written submissions identify that:
she had a flare in May or June and that as a result her ‘baseline’ had changed. That is an inherently probable and plausible situation. It was put to her that since 2019, her symptoms “had not changed a great deal”, and she confirmed her evidence that they had changed ‘a lot’. When asked if that was only since May or June this year, she confirmed her evidence that it had changed gradually over time. He[r] evidence throughout, both written and oral, was consistent that there had been change over time…
Overall, Ms Jalaudin presented as an ultimately honest witness. She did her best to answer all questions put to her, and readily made reasonable concessions. Her evidence was internally consistent.
The Applicant’s claim of a further reduction in her mobility (and self-care) since Mr Byrne conducted his assessment isalso not supported by contemporaneous corroborating evidence. The Applicant contended in written submissions that this was consistent with degenerative disease, whilst the Respondent contended that it was a rapid decline in a six month period and could have been verified by other witnesses. Despite her description that “when you flare up it attacks your body. That is like going into stages and then you go up,up,up,up up and then you flare up again, big flare”, the Applicant failed to provide the Tribunal with a thorough explanation of the physiological impact flares had on her body and her functionalities.
The Tribunal, considering the evidence of further decline in the six months since the OT assessment, accepts the Respondent’s submission that the Applicant’s claim of further decline lacks corroboration. The Tribunal considers that the Applicant tended to underestimate her functionality . Accordingly, the Tribunal has discounted the Applicant’s evidence of her current level of capacity and its decline since the Byrnes Report, despite not disputing the fact that the Applicant’s conditions may decline over time.
The Applicant provided extensive evidence to the Tribunal of the benefits to physiotherapy to the Applicant’s mobility, particularly reports from physiotherapists and a 2019 research paper, “Ankylosing Spondylitis: Aetiology, Pathogens, and treatments”. The Applicant noted that Medicare funded a limited number of physiotherapy sessions each year, but that more sessions would “manage the impact” of the Applicant’s impairments on her life and symptoms. The Respondent did not address these claims in closing submissions, although in the SOFIC observed that recommendations for physiotherapy did not feature in the medical reports (pp. 18-20) other than that of her GP and notably not of her rheumatologist, Dr Wong. Furthermore, that the research paper had not advocated for physiotherapy as “militating [es] the way forward toward a reduction in disability or maintenance with respect to the same”. Consequently, the Tribunal finds there is insufficient evidence that physiotherapy would assist the Applicant’s management of impairments or would result in a substantial future reduction in the need for continuing support under the Scheme. While the effects of additional physiotherapy might be of relevance in consideration of section 25 of the NDIS Act, which deals with early intervention, the parties have agreed that early intervention is not an issue in this decision. Accordingly, I find evidence of the benefits of physiotherapy is not relevant to this decision.
The Tribunal notes that the decision to fund ongoing physiotherapy would be more appropriately addressed if access to the NDIS is accepted.
Having considered all the evidence, the Tribunal finds, taking a wholistic approach to the Applicant’s life experience, that the Applicant suffers from substantially reduced mobility on her bad days, with consequences as well for her self-care and ability to drive herself to social engagements.
The Tribunal finds that on other days, it is apparent that although the Applicant experiences some reduction in mobility and self-care, sometimes requiring the assistance of others and of aids, there is insufficient evidence of a substantial reduction in functional mobility or self-care. The functional limits to the Applicant’s mobility (and therefore much of her self-care) established by OT Byrnes in his assessment do not represent a substantial reduction in functionality, considering that the Applicant was able to bend forward, raise her arms above her head and transfer from bed, chair and toilet without specialised support prescribed by a medical or allied health professional, as required by r 5.8, (although better assistance than a door knob or walking stick was preferrable).The Applicant can also walk for up to 80 metres with a back brace, sit for 45 minutes, and stand for 1.5 hours. She can drive herself to and from yoga and to work, for times of up to forty-five minutes. It can be inferred that she is able to drive, while manipulating her seat-belt, including pulling it over her shoulder, and apparently tolerating chronic pain without being distracted from her driving. The Applicant manages a full-time job demanding physical independence and mobility, despite some workplace modifications, and without, as the Respondent contended, any reported difficulty with toilet transfers at work.
Self-care
The Applicant has described her limitations with self-care, in particular her difficulty in washing her hair, shaving her legs and doing up her brassiere. The Byrnes Report reported the observation that the Applicant could reach overhead and forward “on two consecutive occasions” although her self-report was that these motions are limited by pain. The Byrnes Report noted her “reduced capacity to perform tasks above shoulder height”. The Applicant’s self-report claimed that she required her husband to wash her hair and assist with her brassiere but there was no lay witness corroboration of this provided during to the Tribunal, particularly about frequency of assistance. The evidence in the Byrnes Report refers to the Applicant’s observed reduced functional tolerances but notes that these will not apply to her bad days, when her functional tolerances reduce even further. Bad days ranged from one or two days a week for some activities, three times per month for others and up to eight weeks for others (at which point she reportedly required further injections). In cross-examination, assistance from her husband was also agreed to be part of bad days.
The Applicant described her difficulty with lifting washing, hanging washing and household cleaning, corroborated by the evidence of Ms Crane, who said that housework was only done to a “basic level”. Ms Crane observed that the behaviour of the Applicant’s daughter contributed to the standard in which the house was kept. Mr Byrnes observed that lifting shopping and washing would also be difficult for her if the loads were more than light. The Tribunal finds evidence supports there is impairment of the Applicant’s ability to do household chores, but insufficient evidence that this impairment of function is substantial and whether it is constant or fluctuating, or the extent to which it derives from her disabilities or the demands of her child.
Similarly, while the Applicant has provided evidence of her reduced capacity to care for herself and for her house, corroborated by the Byrnes Report, the Ms Crane Report and by both Mr Byrnes and Ms Crane in oral evidence, once the Applicant’s limitations in caring for her daughter are excluded (P. 46) and the Applicant’s own evidence of her driving and functionality in the workplace are considered, which made no reference to difficulties with toileting or transfers, the Tribunal finds that there is insufficient evidence of a substantial reduction in the Applicant’s capacity for self-care, as a consequence of reduced mobility.
The Tribunal notes the Respondent’s acknowledgement that OT Byrnes recommended assistive technology to assist with, for example, washing below the knee level, a shower stool, overt-toilet aid, long handled shoe-horn and other equipment. However, the Respondent submits that:
whilst they may improve the Applicant’s self-care functioning, it cannot be said that the Applicant is unable to effectively participate in the activity of self-care in their absence. Furthermore, it cannot be said that the Applicant usually requires assistance from other people with respect to self-care.
The Tribunal accepts the Respondent’s submission on this point, finding that evidence of frequencies of flair ups and “bad days” was inconsistent.
The Tribunal is conscious that this case involves a young woman with two chronic, variable and degenerative conditions which are expected to increasingly impair the Applicant’s functionality. However, it is the Applicant’s current variability of impairment, that is, the frequency of her “good” and “bad” days, and of “flares”, which is the central issue in this matter.
The Applicant’s contends in written submissions that the bad days affect the Applicant’s ability to plan her life:
The Applicant accepts that she has periodic bad days. While these are not every-day, or even most days, they are sufficiently frequent that they have a significant adverse impact on her functioning. Whether at an average frequency of once a week to twice a month, the bad days must necessarily have a fundamental impact on her ability to plan her life and her overall functioning. Taken together, her functional capacity ought to be assessed considering her bad days.
The Tribunal recognises that while the Guidelines no longer stipulate the exclusion of crises or “bad days”, they give no particular guidance to how best to assess functionality for a person with variable impairment, other than ensuring that it is considered “over time, taking into account your ups and downs”. Ups and downs are taken to mean, in the case of functionality, “good days and bad days”. This was the approach followed in Galea, referenced by the Applicant. The applicant in Galea detailed his daily routine and regular activities, such as walking and swimming, so that the frequency of departure from them, such as on “bad days”, could be apprehended by the Tribunal. Evidence of planned patterns of activity (and departures from them) was not provided in this Applicant’s case, other than references to full time work, thereby making it difficult to account for the Applicant’s “ups and downs” over time, as was possible in Galea.

The Applicant submits that ‘bad days’ would “have a fundamental impact on her ability to plan her life and … functioning”. The Tribunal accepts that a demonstrated need to plan for good and bad days would be indicative of a substantial reduction in functional capacity in the areas of mobility, self-care, and social interaction.
The Tribunal has before it little evidence that the Applicant’s ability to plan her life has been significantly affected. She works full time and takes sick leave where necessary. There is no evidence before the Tribunal as to the frequency or amount of sick leave that the Applicant takes. She is planning to open her own business. The Applicant’s husband is now the primary carer of their child, but it is unclear from the evidence whether this was planned because the Applicant was unable to care for the child or because the Applicant works full time and the husband does not. The Applicant submitted that she cannot travel to France (her home country) due to her impairments, and that her work bench and some work practices had been changed to accommodate her impairment, but the Tribunal finds this degree of planning would not reflect a substantial impairment of functionality, of either mobility, self-care or social interaction, consistent with the requirements of paragraph 24(1)(c).
The Applicant’s doctor’s reports do not highlight a degree of planning being exercised to enable the Applicant to manage on her “bad days”.
The Tribunal finds the Applicant’s suggestion that her impairments had a “fundamental impact on her ability to plan her life” was not borne out by the evidence provided, but that since neither the Act, Rules nor the Guidelines, reference the significance of planning when determining the level of reduction in functionality (of mobility, self-care and social interaction), this is not a determinative consideration in this case, despite its relevance in Galea.
The Tribunal finds that, overall, there is insufficient evidence that the Applicant has reached a level of substantial reduction in self-care and mobility functionality. Much of the evidence she relies on is based on self-reports, or that of Ms Crane, an OT who has not observed the Applicant for considerable time. The functional assessments made by Christian Byrnes do not suggest such levels of impairment that “a high level of support” is required. Accordingly, the requirements of subsection 24(1)(c) are not met.
Social Interaction
During the hearing, the Applicant described the impairments to her social interactions as the physical difficulty she had meeting up with her friends and the tiredness she experienced at the end of a working day. As she said in evidence, “So I don’t have a problem making friends and talking to people, but I need to get from point A to point B, which is more my problem.”
During examination by the Counsel, the Applicant was asked to describe her social limitations
MS BEANGE: … Do you go out socially with people other than from work?
---No. If people want to socialise we need to come to my house.
You were asked also in the context of friendships - and I’ll see if I can find my notes on this so that I can put the evidence to you properly - that the main issue you have with going out and seeing people is your limited movement. And I’m not asking you to re-answer that question, I’d just like to ask if you remember being asked that question and giving an answer?-
--Yes.
To ensure this Tribunal has proper context, are there any other issues in relation to - any other issues which prevent you from socialising with people - sorry, from seeing friends?---No, just my physical abilities.
Under cross-examination, the Applicant agreed that her work mates were not of particular interest to her, but her boss was her friend and that they did catch up socially. The Applicant also agreed that she could drive limited distances, where she would drive herself to work, doctors’ appointments and yoga.
Considering all the evidence, the Tribunal finds that notwithstanding the fact that the Applicant suffers from certain physical limitations to a varying degree on her capacity to interact socially, there is insufficient evidence that the Applicant’s difficulty in getting from point A to point B significantly contributes to a substantial reduction in her social interactions.
In the Applicant’s closing submissions, reference is made to Jones v Dunkel, a case that was anticipated to be relied upon by the Respondent. Since the Respondent did not, in fact, reference the case, the Tribunal will not address the observations about it made by the Applicant.
As explored in p 33 of this decision, since the Applicant’s written submissions contend that “only the disability requirements are in dispute in this case” and “the Applicant does not press the early access requirements“(in s 25 of the Act), the Tribunal has not made any decisions on early intervention requirements.
CONCLUSION
The Tribunal finds, having considered all the evidence both written and oral, that there is insufficient evidence that the Applicant meets the access requirements of subsection 21(1)(c)(i) of the NDIS Act, the disability requirements. In particular, there is insufficient evidence that the Applicant suffers from a substantial reduction in functionality, either of mobility, self-care or social interaction, as a result of her impairments. It is beyond the scope of the Act for the Tribunal to include in its considerations the impact of her impairments on her capacity to care for her disabled child, no matter how challenging and central this is to the life of this applicant.
The Tribunal considers that it is open to the Applicant to reapply for admission to the NDIS should her impairments decline further later.
The Tribunal also finds it not necessary to consider subsection 24(1)(e) of the Act.
Accordingly, the Tribunal concludes that the requirements for access to the Scheme under subsection 24(1)(c) are not met.
DECISION
The Tribunal affirms the decision under review under s 43 of the AAT Act.

I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of the Honourable Pru Goward AO, Senior Member.

........................................................................
Associate
Dated: 21 March 2023

Date of hearing: 20 - 21 October 2022

Date final submissions received: 17 November 2022

Counsel for the Applicant: Ms Louise Beange

Solicitors for the Applicant:
Mr Patrick Hourigan, Mid North Coast Community Legal Centre

Counsel for the Respondent:
Mr Marco Nesbeth

NDIS Instructor Mr Samuel Kim

[2023] AATA 448

21 March 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	20 - 21 October 2022
Date final submissions received:	17 November 2022
Counsel for the Applicant:	Ms Louise Beange
Solicitors for the Applicant:	Mr Patrick Hourigan, Mid North Coast Community Legal Centre
Counsel for the Respondent:	Mr Marco Nesbeth
NDIS Instructor	Mr Samuel Kim