Last and National Disability Insurance Agency

Last and National Disability Insurance Agency [2024] AATA 122 (6 February 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/3320
Re:Debbie Last
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member K. Parker
Date:6 February 2024
Place:Melbourne

The Tribunal sets aside the Decision Under Review and in substitution, decides that the Applicant meets the access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) and is to be granted access as a participant in the National Disability Insurance Scheme.
.................................[sgd].......................................
Senior Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) are met – “disability requirements” under s 24 – Applicant has disability arising from numerous physical, sensory, cognitive, and psychosocial impairments – bipolar affective disorder – post-traumatic stress disorder – anxiety – fibromyalgia – degenerative bilateral shoulder conditions requiring nine surgeries – lower back condition – chronic pain – methicillin-resistant Staphylococcus aureus (MRSA) infection – whether impairments are, or likely to be, permanent – whether impairments have resulted in substantially reduced functional capacity in any one of six prescribed activities under s 24(1)(c) of the NDIS Act – decision under review set aside and substituted with decision that Applicant meets access criteria under s 21 of the NDIS Act and access request granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Secondary Materials
National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 22 December 2023) < FOR DECISION
Senior Member K. Parker
6 February 2024

This application is about whether the Applicant, Ms Debbie Last, should be granted access as a participant in the National Disability Insurance Scheme (NDIS). Ms Last seeks review of a decision made on 2 March 2022 by a “reviewer” under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) (Decision Under Review).[1] The Decision Under Review confirmed an earlier decision by the Respondent, the National Disability Insurance Agency (NDIA), not to grant access to Ms Last as a participant in the NDIS.
[1] The NDIA lodged a set of documents with the Tribunal pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (T-Documents). Refer T-Documents, T1A (Applicant’s copy) and T2 (Respondent’s copy).
The jurisdiction of the Administrative Appeals Tribunal (Tribunal) to review the Decision Under Review arises under s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), operating in conjunction with s 103 of the NDIS Act.
For the reasons set out below, the Tribunal sets aside the Decision Under Review and substitutes it with a decision that Ms Last meets the access requirements under s 21 of the NDIS Act, specifically, that she meets the criteria under ss 22, 23 and 24 of the NDIS Act, and is to be granted access as a participant in the NDIS.
BACKGROUND
Family, education, and employment background
Ms Last is a 61-year-old woman who is living alone in rental accommodation in an outer suburb of Melbourne. She is in receipt of the disability support pension and is currently unemployed. Ms Last was involved in a car accident in 2008 causing injuries to her (Car Accident).
Prior to the Car Accident, Ms Last was working in the aged care sector. She was also receiving a part pension (before the Car Accident), because of her depression and she said she had bipolar symptoms and stress.[2] The Tribunal notes the diagnoses by qualified psychiatrists of Ms Last having the condition of bipolar disorder as referred to in more detail below. At the hearing, Ms Last gave evidence that, at this time, she needed to go and live with her parents on their farm to assist them.[3]
[2] Transcript of Proceedings, Last and National Disability Insurance Agency (Administrative Appeals Tribunal, 2022/3320, SM Parker, 24-26 July 2023 and 10 November 2023), 115-116.
[3] Ibid, 116.
Rehabilitation support and assistance has been provided to Ms Last since the Car Accident. However, in Ms Last’s statement of facts, issues, and contentions (prepared by her daughter, Ms Andrea Falls, and lodged with the Tribunal on 20 July 2023 (Ms Last’s SFIC), Ms Last stated that she has been unable to return to the labour market/paid employment.[4] Ms Last confirmed at the hearing that she was unemployed.
[4] Ms Last’s SFIC, [5].
Car Accident
As mentioned, Ms Last was involved in a Car Accident in December 2008.[5] She was getting out of the car from the driver’s seat and was clipped by an oncoming car, causing her to fall down onto the road, dislocating her shoulder and resulting in immediate and secondary physical and psychological injuries to her. Her evidence is that she was terrified by this event, and it has made her fearful of driving.
[5] Ibid, [4].
Ms Last made a Transport Accident Commission (TAC) claim, which was accepted.[6] Ms Falls states that the TAC had provided Ms Last with initial support and aids, but it does not provide her with ongoing support, or support for any issues unrelated to the Car Accident.[7]
[6] Ibid, [4].
[7] Ibid, [4].
Ms Falls explained that treatments have been recommended for Ms Last by her treating general practitioner, Dr Trisha Cunningham, and her other treating specialists, but the TAC’s case manager or its medical review panel must approve any such recommended treatment before she is permitted to receive them. Ms Falls also highlighted that, while Ms Last is being treated “under TAC”, she is unable to seek additional medical assistance such as physiotherapy, or psychology, outside of the specifications in her current TAC “approved treatment plan”.[8]
[8] Ibid, [4].
Claimed Impairments
Ms Last lodged with the Tribunal a statement of lived experience on 2 August 2022 (Ms Last’s SLE). In Ms Last’s SLE, her “disability or permanent impairment” was described as being “chronic pain”, “shoulder injury”, “post-traumatic stress disorder (PTSD)”, “anxiety” and “MRSA [methicillin-resistant Staphylococcus aureus] Colonisation”.[9] Ms Falls stated in Ms Last’s SFIC that Dr Cunningham has also identified the diagnosis of “fibromyalgia” (by Dr Lim, Rheumatologist, in July 2015), referring to page 237 of the parties’ Joint Hearing Tender Bundle (JHTB), lodged with the Tribunal on 14 July 2023.[10] The impairments arising from the conditions referred to in this paragraph will be referred to collectively as the Claimed Impairments.
[9] Joint Hearing Tender Bundle (JHTB), 146 and Ms Last’s SFIC, [15].
[10] Ms Last’s SFIC, [15].
Ms Last described the impacts of the Claimed Impairments as follows:[11]
(a)she cannot think straight and has poor judgement;
(b)she struggles with paying bills, managing money, and decision-making;
(c)she has difficulties dealing with daily situations, requiring assistance from her daughter by telephone;
(d)she has difficulty with the pressure of deadlines;
(e)she experiences behavioural outbursts and depression, and withdraws from people and situations;
(f)she spends most of her time at home doing basic tasks, which she states she finds to be exhausting; and
(g)she walks daily, to help with her mental health and pain management, and focuses on her sleep, to ensure that any lack of it does not trigger pain, or an “MRSA [infection]”.
[11] Ms Last’s SLE, 1.
Dr Cunningham describes Ms Last’s “MSRA colonisation” as giving rise to a further impairment. Dr Cunningham stated that Ms Last has frequent infectious flares, which are monitored regularly. Dr Cunningham stated that Ms Last requires assistance with showering to control this condition.[12]
[12] T-Documents, T3/24.
Ms Last’s ability to effectively manage her medical conditions is hampered by allergies when taking many forms of prescription medication. In Ms Last’s SFIC, Ms Falls stated that Ms Last has a condition where she is “highly sensitive and allergic to pharmaceuticals and is limited to what can be prescribed and taken”.[13] Ms Falls stated this was confirmed in a “MyDNA report” in respect of Ms Last.[14] This assertion was not challenged by the NDIA. Ms Last stated in her SLE that she has allergies/adverse reactions to many pharmaceutical medications. Ms Last stated that she sees naturopaths and uses supplements and vitamins, where possible, in an attempt to manage her health and wellbeing. She stated that, despite using those supplements and vitamins, her “underlying issues and injuries remain significant”.[15]
[13] Ms Last’s SFIC, [12].
[14] Ibid. The report is located at pp 10368-10375 of the JHTB, and is referred to by Dr Cunningham, JHTB p 236.
[15] Ms Last’s SLE, 1.
Request for access to the NDIS
On 12 August 2021, Ms Last made a request to the NDIA, under s 18 of the NDIS Act, to be granted access as a participant in the NDIS. This request was made by giving the following documents to the NDIA:
(a)a NDIS Access Request Form – Supporting Evidence Form, completed by Dr Cunningham on 12 August 2021 (SEF);[16] and
(b)further letter by Dr Cunningham dated 2 September 2021.
[16] T-Documents, T3/22-28.
Dr Cunningham described Ms Last’s primary impairment on the SEF as “PSTD/Anxiety”, which Ms Last has had for 11 years. Dr Cunningham states that this impairment is likely to be lifelong and that Ms Last regularly sees a psychologist, exercises, practices mindfulness using meditation “apps”, sees a naturopath and has a psychiatry review annually.[17]
[17] Ibid, T3/24.
Dr Cunningham states on the SEF that Ms Last has another impairment that has a “significant impact” upon her, being “chronic pain” secondary to a shoulder injury from the Car Accident. Dr Cunningham states that Ms Last has had this impairment for 11 years and it is likely to be lifelong. She states that Ms Last has undergone nine surgeries since the initial injury, ongoing orthopaedic review and physiotherapy, pain management services and hydrotherapy.[18]
[18] Ibid.
Dr Cunningham states on the SEF that Ms Last requires special equipment to be mobile because of her impairments, specifically, that Ms Last has an “adaptive assistor” which raises the bed.[19]
[19] Ibid, T3/26.
Dr Cunningham states that Ms Last does not need assistance with communication.[20]
[20] Ibid.
Dr Cunningham states that Ms Last needs assistance from other persons in relation to the activity of social interaction, specifically, that Ms Last requires ongoing cognitive behavioural therapy (CBT) to help her improve coping with feelings and emotions, with regular appointments with a psychologist.[21]
[21] Ibid, T3/27.
Dr Cunningham states that Ms Last requires assistance from other persons with learning and will need one-on-one guidance and support for learning and remembering new skills.[22]
[22] Ibid.
In relation to the activity of “self-care”, Dr Cunningham states that Ms Last needs special equipment (specifically, an “adaptive assistor” to help improve her reach, as supplied by an occupational therapist (OT) and light-weight appliances such as vacuum cleaner, pots, and pans), and assistance from other persons in relation to showering and bathing (specifically, assistance with showering once or twice a week to help with “MRSA control”).
Dr Cunningham states that Ms Last needs assistance from other persons in relation to the activity of “self-management”, specifically, Ms Last’s daughter manages all of Ms Last’s finances, and supports and provides guidance to Ms Last when she is making important decisions.[23]
[23] Ibid, T3/28.
In Dr Cunningham’s letter dated 2 September 2021, she reiterated that Ms Last has the following “major issues”: “PTSD”, “anxiety” and “chronic pain”.[24] In relation to the pain, Dr Cunningham referred to Ms Last’s shoulder injuries from the Car Accident and to the “referred pain” that Ms Last experiences in her cervical spine (neck) and lower back.
[24] Ibid, T4/29-30.
Dr Cunningham stated that Ms Last was also suffering from headaches and migraines and that her vision was affected. Dr Cunningham referred to Ms Last having seen an orthopaedic surgeon, pain management team, physiotherapist, neurologist, neurosurgeon, and ophthalmologist. Dr Cunningham referred to Ms Last having been on analgesic medication in the past and that she was currently managing with naturopathic medication. As referred to above, the Tribunal notes that the evidence confirms that Ms Last has allergies or sensitivities to many mainstream pharmaceuticals, which is why she pursues and relies upon naturopathic remedies, which are reportedly assisting her.
Dr Cunningham reported that Ms Last was unable to do certain activities, such as vacuuming floors, handling washing, working above shoulder- and below waist-height, cleaning the shower, making the bed, gardening, lifting objects weighing more than two kilograms or repetitive activities, such as ironing.[25]
[25] Ibid, T4/30.
Decision Under Review and application for review by this Tribunal
On 14 October 2021, a delegate of the Chief Executive Officer of the NDIA (CEO) decided not to grant access to Ms Last to the NDIS (Original Access Decision), on the basis that she did not meet the access criteria set out in s 21 of the NDIS Act, because she did not meet:[26]
(a)the “disability requirements” under s 24 (specifically, s 24(1)(b), which requires Ms Last to have an impairment that is “permanent, or likely to be permanent”); or
(b)the “early intervention” requirements under s 25 of the NDIS Act.
[26] Ibid, T5/31-35.
On 24 November 2021, Ms Last sought internal review of the Original Access Decision by a “reviewer” of the NDIA under s 100(6) of the NDIS Act.[27]
[27] Ibid, T6/36.
On 2 March 2022, the reviewer confirmed the Original Access Decision and issued the Decision Under Review.[28]
[28] Ibid, T2.
On 21 April 2022, Ms Last sought review of the Decision Under Review by the National Disability Insurance Scheme Division of the Tribunal under s 103 of the NDIS Act.[29]
[29] Ibid, T1.
EVIDENCE, SUBMISSIONS AND HEARING
On 5 May 2022, the NDIA lodged with the Tribunal a set of documents pursuant to s 37 of the AAT Act (that is, the T-Documents).
On 13 July 2023, the NDIA lodged its Statement of Facts, Issues and Contentions (NDIA’s SFIC).
On 14 July 2023, the NDIA, on behalf of the parties, lodged the JHTB. The JHTB comprises 10,350 pages.
On 20 July 2023, the NDIA, on behalf of the parties, lodged a supplementary JHTB comprising 50 pages (Supplementary JHTB). The Tribunal has received the evidence contained in the JHTB and the Supplementary JHTB as evidence in this proceeding.
In light of the voluminous content of the JHTB and the Supplementary JHTB, the Tribunal requested that each party specify the pages they would like the Tribunal to consider in making this decision. They did so, and the Tribunal has reviewed only the specific pages nominated by them.
Further to Ms Last’s SFIC and her SLE, as referred to above, on 7 August 2023 Ms Falls, on behalf of Ms Last, lodged further submissions in relation to issues relating to the application of s 25(3) of the NDIA Act in the circumstances of this application (Ms Last’s Supplementary Submissions).
The Tribunal conducted a substantive hearing in this matter over four days on 24 to 26 July 2023 inclusive, and on 10 November 2023. Ms Last was self-represented and ably assisted throughout the hearing by her daughter, Ms Falls, who is an accountant by profession. Ms Sarah Thompson, Solicitor Advocate, HWL Ebsworth Lawyers, appeared on behalf of the NDIA. The Tribunal acknowledges and thanks both Ms Falls and Ms Thompson for their participation in representing the parties in this application. A “split hearing” took place in this matter because the Applicant recalled towards the end of the scheduled hearing in July 2023, that a brain scan had been performed on her in about 2016 which released that she had grey matter missing in her brain. Ms Last and her daughter wanted an opportunity to procure the report of that scan from the relevant hospital and to tender it as evidence in this proceeding, because they considered that it might explain many of the cognitive, impaired judgment and/or behavioural symptoms, including memory loss, that Ms Last was experiencing. By consent, the Tribunal granted the requested adjournment. During the adjournment, the parties experienced difficulties and delays in obtaining this evidence from the hospital. Once it was obtained and lodged with the Tribunal, the resumed hearing took place in November 2023. This evidence about the scan performed at this time is addressed at paragraph [60] below.
At the hearing, the following witnesses were called to give evidence:
(a)Lay witnesses:
(i)Ms Last;
(ii)Ms Falls;
(b)Expert witnesses:
(i)Dr Cunningham;
(ii)Ms Lucinda Smith, independent OT engaged by the NDIA to undertake a functional capacity assessment and to prepare an expert report; and
(iii)Dr Tanya Yuen, treating neurosurgeon.
LEGISLATIVE FRAMEWORK
Section 21 of the NDIS Act provides that a person satisfies the access criteria if they meet:
(a)the “age requirements” under s 22;
and, at the time of considering the access request;
(b)the “residence requirements” under s 23; and
(c)the “disability requirements” under s 24 (as set out in paragraph [54] below) or the “early intervention requirements” under s 25 of the NDIS Act.
ISSUES
The NDIA accepts that Ms Last meets both the “age requirements” under s 22 of the NDIS Act and the “residence requirements” under s 23 of the NDIS Act. This was not in contest between the parties, and the Tribunal finds accordingly.
The issues arising for determination by the Tribunal in this application are:
(a)whether Ms Last meets the “disability requirements” under s 24 of the NDIS Act; or, alternatively,
(b)whether Ms Last meets the “early intervention requirements” under s 25 of the NDIS Act.
The NDIA contends that Ms Last does not meet either of those two sets of requirements.[30]
[30] NDIA’s SFIC, [10].
Ms Last contends that she meets the “disability requirements” under s 24 or, alternatively, the “early intervention requirements” under s 25 of the NDIS Act, in respect of one or more of the Claimed Impairments.
The NDIA accepts that, in relation to s 24(1)(a) of the NDIS Act, Ms Last has a disability attributable to: [31]
[31] Ibid, [25].
(a)physical impairments resulting from:
(i)left and right shoulder injuries;
(ii)neck and back injuries;
(iii)left knee injury; and
(iv)chronic pain injury;
(b)psychosocial impairments resulting from anxiety and PTSD; and
(c)a sensory impairment resulting from eye trauma.
The NDIA does not accept that Ms Last has a disability attributable to an impairment resulting from her MRSA colonisation, migraines, asymmetrical tonsillar swelling, laryngopharyngeal reflux, intermittent dysphagia, and dysphonia (ear, nose, and throat issues) on the basis that it does not appear to the NDIA that those conditions have resulted in a loss or reduction of Ms Last’s functioning.[32]
[32] Ibid, [26]-[28].
The NDIA accepts that, in relation to s 24(1)(b) of the NDIS Act, Ms Last has:
(a)a sensory impairment arising from her eye trauma, which is permanent. This impairment takes the form of persistent photophobia and trouble focusing the left eye since 2013, due to poor or limited pupil response, according to a report by an ophthalmologist;[33] and
(b)physical impairments arising from her bilateral shoulder injuries, neck/back injuries, left knee injury, right wrist injury and chronic pain injury, which are permanent.[34]
[33] Ibid, [29].
[34] Ibid, [30].

However, the NDIA contends that there is insufficient evidence before the Tribunal for it to be positively satisfied that Ms Last’s psychosocial impairments associated with anxiety and PTSD are permanent. The NDIA contends that there remains further evidence-based treatment that Ms Last could engage in to remedy these impairments, specifically:[35]
(a)CBT, education, counselling, psychotherapy, relaxation training, interpersonal therapy, and family therapy;
(b)pharmacological treatment, specifically, Zoloft (sertraline);
(c)rehabilitation treatment (physiotherapy or psychology); and
(d)eye movement desensitisation and reprocessing (EMDR) treatment.
[35] Ibid, [31].
The NDIA contends that the evidence does not demonstrate that Ms Last has “substantially reduced functional capacity” for any of the six activities prescribed in s 24(1)(c) of the NDIS Act. The NDIA acknowledges that Ms Last may experience some reduced capacity in some activities but contends that she is still able to participate effectively across all six activities.[36]
[36] Ibid, [35].
Regarding the “early intervention requirements” under s 25 of the NDIS Act, the NDIA accepts that s 25(1)(a) has been met in respect of the impairments arising from Ms Last’s bilateral shoulder injuries, neck/back injuries, left knee injury, chronic pain injury, right wrist injury and eye trauma. The NDIA does not accept that the requirement under s 25(1)(a) has been met in respect of her impairments attributable to her psychosocial impairment.[37]
[37] Ibid, [63].
The NDIA contends that the evidence does not demonstrate that the provision of early intervention supports would likely have a significant impact on s 25(1)(c)(i) to (iv), particularly in light of the “longstanding and stable nature” of Ms Last’s conditions/impairments.[38]
[38] Ibid, [64].
The NDIA contends that, even if Ms Last is found to have met s 25(1) of the NDIS Act, the prohibition under s 25(3) would apply, in circumstances where:[39]
(a)“no early intervention supports have been identified as appropriate or relevant in the Applicant’s case”; and
(b)“other supports sought by the Applicant or proposed for her by others are more appropriately funded or provided through other service systems, including, for example, the health system, or TAC”.
[39] Ibid, [65].
ACCESS RULES AND POLICY GUIDANCE
Section 209(1) of the NDIS Act provides that the Minister may, by legislative instrument, make rules prescribing matters required or permitted under the NDIS Act, or necessary or convenient to be prescribed, in order to carry out or give effect to the NDIS Act. Section 27 of the NDIS Act permits the Minister to make NDIS rules prescribing circumstances in which, or criteria to be applied, in assessing whether any of the disability or early intervention requirements are met under ss 24 or 25, respectively, of the NDIS Act.
Pursuant to s 209(1) of the NDIS Act, in conjunction with s 27, the Minister has issued the following rules by legislative instrument: National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Access Rules).
The NDIA has issued policy guidance dealing with the assessment of whether a person meets the disability or early intervention requirements under ss 24 or 25, respectively, of the NDIS Act: Applying to the NDIS (Access Guidelines).[40] The Tribunal will take this policy guidance into account when making this decision, unless there are cogent reasons not to do so, for instance, if the policy guidance is inconsistent with the provisions of the NDIS legislative regime.
CONSIDERATION OF WHETHER MS LAST MEETS THE “DISABILITY REQUIREMENTS”
[40] National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 22 December 2023) <>
The “disability requirements” under s 24 of the NDIS Act are made up of five mandatory criteria as follows:
24 Disability requirements
(1)       A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)        communication;
(ii)       social interaction;
(iii)      learning;
(iv)      mobility;
(v)       self-care;
(vi)      self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
Detailed medical history
Ms Last’s primary general practitioner since January 2020,[41] Dr Cunningham, summarised Ms Last’s medical history in her report dated 11 July 2023.[42] Dr Cunningham stated that, due to the timing of her involvement with Ms Last, she was not involved in the diagnosis of most of Ms Last’s conditions. She stated that Ms Last has seen multiple specialists. Dr Cunningham described Ms Last’s health as being “extremely complex” and that most of the impairments for which she is seeking access to the NDIS are interrelated. The Tribunal accepts that Ms Last’s conditions and the impact on her functionality are interrelated.
[41] Transcript of Proceedings, Last and National Disability Insurance Agency (Administrative Appeals Tribunal, 2022/3320, SM Parker, 24-26 July 2023 and 10 November 2023), 166.
[42] JHTB, 236-246.
In Dr Cunningham’s report, she referred to the initial injuries Ms Last sustained from the Car Accident, namely, the injuries to her right shoulder, neck and back and also resulting in her suffering PTSD, anxiety, and secondary or subsequent injuries to her left shoulder, right wrist, and left knee. Dr Cunningham opines in her report that Ms Last’s shoulder, neck and back injuries, along with the multiple operations she underwent, and the ongoing MRSA infections, have resulted in Ms Last being diagnosed with “chronic pain”, and has subsequently caused “nerve” and “nervous system damage” to Ms Last.
Dr Cunningham referred to Ms Last having slurred speech, impaired executive function, short-term memory issues and poor attention span. At the hearing, Dr Cunningham was asked by Ms Thompson to explain how those impairments were connected to the nerve and nervous system damage. Dr Cunningham said that Ms Last has pain coming from her neck in relation to the nerve and nervous system damage and, when the pain is bad, this can cause difficulty with problem-solving, thinking clearly and memory, as well as triggering migraines.[43] Dr Cunningham explained that the nerve and nervous system damage comes from compression to Ms Last’s neck and spinal column, which may then feed into chronic pain, migraines, and fibromyalgia.[44] Dr Cunningham said that pain may contribute to a person’s (lack of) sleep and if Ms Last has a “bad night’s sleep”, this may impact on her executive function and cognition.[45]
[43] Transcript of Proceedings, Last and National Disability Insurance Agency (Administrative Appeals Tribunal, 2022/3320, SM Parker, 24-26 July 2023 and 10 November 2023), 167.
[44] Ibid.
[45] Ibid, 168.
Magnetic Resonance Imaging (MRI) scans were taken of Ms Last’s cervical and lumbar spine on 29 June 2021 and 30 July 2021, respectively. Those scans revealed as follows:
(a)cervical spine: [46]
(i)“moderately severe left foraminal narrowing C3/C4 compressing the left C4 nerve” and
(ii)“moderately severe right foraminal narrowing C6/C7 compressing the right C7 nerve”;
(b)lumbar spine: [47]
(i)“Multilevel facet joint osteoarthritis involves the lower three levels of the lumbosacral spine, of moderate severity at the L5-S1 level bilaterally and of mild severity bilateral L3-4 and L4-5 fact joints”; and
(ii)“Gentle posterior disc bulges involve a number of abovementioned lumbar disc spaces with no significant spinal canal or high grade foraminal stenosis detected. No neural compressive lesion identified throughout the lumbar spine as a result of mild degenerate disc disease”.
[46] JHTB, 1131.
[47] Ibid, 1307.
A further MRI scan on 15 September 2022 revealed that:
(a)Ms Last’s cervical spine has “multilevel spondylotic changes with radiculopathy distally”. The grade of foraminal stenosis on the left side at C6/C7 was rated as “moderate” and on the right side as “severe”.[48] It was also rating as being “severe” bilaterally at C5/C6;[49] and
(b)Ms Last’s lumbar spine scan showed “fairly stable degenerative changes appreciated compared to study 2021”.[50]
[48] Ibid, 1302.
[49] Ibid.
[50] Ibid, 1301.
A bone scan on 31 July 2021 following symptoms experienced by Ms Last of lower back pain and leg pain revealed that she has “[a]ctive C5/C6 degenerative disc disease”.[51] At the hearing, Dr Tanya Yuen, Neurosurgeon, gave a detailed history of her treating of Ms Last. Notably, Dr Yuen said that she had most recently referred Ms Last for an MRI of the neck and brain in April 2023 and she said the result was that “they were all stable”. Dr Yuen said that she thought that Ms Last was having spasms in her neck and that she would benefit from remedial massage. Dr Yuen considered that it was unsafe for Ms Last to drive at that time due to the neck spasms. Dr Yuen concluded that she would review Ms Last again in 12 months’ time and diagnosed her with degeneration of the cervical spine or “spondylosis” and “possibly cervicogenic headaches” being headaches from the pain that is due to the degeneration of the neck.[52] Dr Yuen clarified an important point about an earlier 2016 CT scan of Ms Last’s brain which had revealed missing grey matter in her brain. Dr Yuen gave evidence that it is a “perivascular cyst in the left frontal lobe” and that such a cyst “never causes clinical deficits”.[53] Dr Yuen said it is an anatomical variant and that a person is usually born with it. She said it does not change in size and that it comprises some fluid around a blood vessel which can displace grey matter sometimes.[54]
[51] Ibid, 1306.
[52] Transcript of Proceedings, Last and National Disability Insurance Agency (Administrative Appeals Tribunal, 2022/3320, SM Parker, 24-26 July 2023, and 10 November 2023), 267.
[53] Ibid.
[54] Ibid.
The Tribunal notes that Ms Last was formally diagnosed by Associate Professor N. Paoletti, Psychiatrist, Austin Health, on 24 November 2011, with the following mental health conditions: [55]
(a)“Bipolar Disorder Not Otherwise Specified (DSM-IV 296.80)”; and
(b)“Anxiety Disorder Not Otherwise Specified (DSM-IV 300.00), with features of post-traumatic stress disorder and associated traffic phobia”.
[55] JHTB, 2416.
The Tribunal notes that on 14 July 2010 another psychiatrist, Dr Arunava Das, diagnosed Ms Last with the “clinical psychiatric disorder” of “Bipolar I Disorder”.[56] The Tribunal notes that on 11 May 2011, another psychiatrist, Dr Timothy Entwisle, diagnosed Ms Last with “Bipolar Disorder” and as having a “anxious and insecure personality style”.[57]
[56] Ibid, 4111.
[57] Ibid, 3667.
At the hearing, Dr Cunningham confirmed that Ms Last had previously been diagnosed with bipolar disorder but that she had not been talking to Ms Last about this condition of late. Dr Cunningham said that they had been talking about symptoms relating to coping with the chronic pain and the impact it was having on Ms Last’s moods. Dr Cunningham indicated that Ms Last was “not sure” herself, about the previous diagnosis of her having bipolar disorder. Dr Cunningham gave evidence, when questioned by the Tribunal at the hearing, that she did not think Ms Last had bipolar disorder and explained that if she suspected as such, she would have referred Ms Last to see a psychiatrist. Dr Cunningham said that she did not consider that Ms Last was “at that level”.[58]
[58] Transcript of Proceedings, Last and National Disability Insurance Agency (Administrative Appeals Tribunal, 2022/3320, SM Parker, 24-26 July 2023, and 10 November 2023), 169.
The Tribunal finds that Ms Last has the conditions as diagnosed by Associate Professor Paoletti as listed above in sub-paragraphs [61(a)] and [61(b)]. The Tribunal prefers the diagnosis of bipolar disorder made by the psychiatrist who has examined Ms Last, over the views of her treating general practitioner, due to the psychiatrist’s specialist training in the area of psychiatry. It is also supported by the diagnosis of bipolar disorder made in the past by two other psychiatrists as set out in paragraph [62]. However, the Tribunal notes the treating general practitioner’s and Ms Last’s reports that this psychiatric condition is being adequately controlled at the present time.
In relation to Ms Last’s condition of PTSD, Dr Cunningham gave evidence at the hearing that, a few years ago, when Ms Last was primarily only seeing a psychologist, she had spoken to Ms Last about EMDR treatment and a report had been sent to TAC suggesting consideration of this treatment. Dr Cunningham said that, since then, Ms Last undertook a rehabilitation program which included psychology and had “addressed her mental health in a bit of a different way”.[59] Dr Cunningham said she no longer considered that Ms Last needed EMDR treatment, because of the “leaps and bounds” she had made with the Empower Rehab’s rehabilitation program. Dr Cunningham also agreed, when it was put to her at the hearing, that EMDR might not be an appropriate treatment for Ms Last because of her eye issues, as mentioned above.[60]
[59] Ibid, 171.
[60] Ibid, 172.
At the hearing Dr Cunningham said she thinks that Ms Last used lists to manage her medications and noted that, besides, they try to limit the amount of medication she is on due to her allergies. Dr Cunningham reported that Ms Last was attending, and not missing, her appointments with her. She said she was not sure how much support Ms Last was receiving from Ms Falls in that regard.[61] Dr Cunningham also said her clinic will send out reminders the day before an appointment.[62]
[61] Ibid, 172.
[62] Ibid, 173.
Dr Cunningham states in her report, dated 11 July 2023, that Ms Last’s shoulder, neck, and back injuries and the nerve and nervous system damage has resulted in “ear, nose and throat issues” and “migraines”. Dr Cunningham states that Ms Last has been diagnosed with “Adies Pupil – a post-traumatic eye condition” and that she has been advised by Dr Lim (rheumatologist) in July 2015, that she is suffering from “fibromyalgia”.[63]
[63] JHTB, 236-237.
Dr Cunningham states that all of Ms Last’s conditions are considered permanent and will have an impact on her for the rest of her life. Dr Cunningham states that Ms Last has seen “all appropriate” medical and allied health professionals and she has complied with and completed all approved, available, and recommended treatment. Dr Cunningham states that Ms Last will continue to have involvement with such health professionals for the rest of her life and that she will require further surgeries to “ensure optimal health and maintenance of her independence”.[64]
[64] Ibid, 236.
Dr Cunningham states, in her report, that Ms Last is “highly sensitive to pharmaceuticals, with an extensive list of serious adverse reactions to medications, including hallucinations”. Dr Cunningham explains that this limits the medication Ms Last may take for both treatment and symptomatic relief. She states that a report by “MyDNA” had confirmed Ms Last’s allergies and reactions to pharmaceuticals and that Ms Last has worked with naturopaths to best utilise natural remedies that she is able to tolerate.[65]
[65] Ibid, 236-237.
At the hearing, Dr Cunningham confirmed that MRSA infections can result in painful inflamed skin eruptions, fevers, headaches, pain, worsening fatigue, impairments to memory, concentration and problem solving.[66] Dr Cunningham said that Ms Last had a “regime of skincare” as recommended by a specialist, including the use of Phisohex wash, which decreases the bacterial load on her skin, and if this condition begins to flare, the administration of “antibodies”.[67] Dr Cunningham said that Ms Last had seen a dermatologist, an infectious disease specialist, and a few others in relation to this condition. Dr Cunningham gave evidence that increased stress or anxiety could impact upon or feed into the MRSA and vice versa.[68] Dr Cunningham also said that if Ms Last does not have a good range of movement to be able to clean areas (such as the back of the neck, at the hairline), this would have an impact on Ms Last’s ability to stay on top of or maintain MRSA infection control.[69]
[66] Transcript of Proceedings, Last and National Disability Insurance Agency (Administrative Appeals Tribunal, 2022/3320, SM Parker, 24-26 July 2023 and 10 November 2023), 169.
[67] Ibid, 169-170.
[68] Ibid, 180.
[69] Ibid, 180-181.
At the hearing, Dr Cunningham was asked what sort of function Ms Last should expect as a result of having the recent surgery to her left shoulder. Dr Cunningham indicated it was best to ask this question of Dr Simon Holland, Ms Last’s treating orthopaedic surgeon.[70] Dr Holland was not called as a witness in this proceeding and the Tribunal could not identify a medical report from him which provided a current prognosis for Ms Last in respect of her shoulder issues.
[70] Ibid, 172.
At the hearing, Dr Cunningham confirmed that Dr Tanya Yuen, Neurosurgeon, had organised an MRI scan of Ms Last’s brain and cervical spine in April 2023 and the results were compared to the scan performed in the past. The MRI report issued on 3 April 2023 states that Ms Last has “[d]egenerative change in the cervical spine, most pronounced between C3/4 and C6/C7, with thickening of the posterior longitudinal ligament, canal narrowing, and moderate to severe neural exit foraminal narrowing on the left at C3/C4 and C5/C6, and on the right at C6/C7”.[71] Dr Cunningham said she was not able to comment on the cause of degeneration and that this was a question that should be directed to Dr Yuen. Dr Cunningham said at the hearing that Dr Yuen had indicated to her that Ms Last’s situation is currently “stable” and that Dr Yuen had decided to review Ms Last annually.[72]
[71] Supplementary JHTB, 10398-10399
[72] Transcript of Proceedings, Last and National Disability Insurance Agency (Administrative Appeals Tribunal, 2022/3320, SM Parker, 24-26 July 2023 and 10 November 2023), 178.
Dr Cunningham opined at the hearing that she considered Ms Last to have a moderate degree of falls risk. When asked by the Tribunal to state the basis of this assessment, Dr Cunningham referred to the impacts that everything has had on Ms Last, how she is dealing with pain, whether it is going to make her leg give way and whether it is affecting her sleep.[73] Dr Cunningham referred to Ms Last’s knee injury and said that sometimes, “the knee can actually just give way”, which impacts upon her falls risk.[74] She qualified this statement by saying that it was her understanding that Ms Last’s knee “has been not too bad of late”.[75] Dr Cunningham said she could not remember having discussed with Ms Last or having recommended to her the use of any mobility aids.[76]
[73] Ibid, 183.
[74] Ibid, 184.
[75] Ibid.
[76] Ibid, 189.

At the hearing, Dr Cunningham confirmed that Ms Last had paraesthesia (commonly known as “pins and needles”) in her hands and upper limbs. She said she did not think that Ms Last has paraesthesia in her lower limbs.[77]
[77] Ibid.
Dr Cunningham opined that Ms Last had “chronic pain syndrome” based on the following:
(a)her history of pain flare-ups;
(b)the number of surgeries required by Ms Last to manage the pain;
(c)the way she is managing her pain; and
(d)the “presentations”, that is, the frequency in which Ms Last was seeing the doctor.
Dr Cunningham said that the Empower Rehab team were probably the last people Ms Last had seen about her chronic pain (that is, the psychologist and physiotherapists who were chronic pain specialists). Ms Last had seen a specialist about her chronic pain at the “Melbourne Pain Clinic” and also by Dr Simon Cohen, pain specialist at Empower Pain Program. Before that, Ms Last had seen pain specialist, Dr Tim Hucker, about the chronic pain.[78]
[78] Ibid, 184.
At the hearing, the Tribunal asked Dr Cunningham whether she had made any observations of Ms Last during the consultations she had had with her (which Dr Cunningham had described as “very [frequent]”), that had caused her to be concerned about Ms Last’s decision-making capacity. Dr Cunningham answered in the negative. In relation to memory loss, Dr Cunningham said that sometimes Ms Last would get confused but she had not thought that Ms Last might have signs of early-onset dementia. Dr Cunningham gave evidence that she does not have any concerns in that regard.[79] Dr Cunningham said that Ms Last was generally able to remain coherent for the length of the consultation.[80]
[79] Ibid, 186.
[80] Ibid.
At the hearing, Ms Smith gave evidence that she was briefed by the NDIA’s lawyer to assess Ms Last and prepare a report (dated 27 March 2023) (Ms Smith’s Report). At the hearing, Ms Smith indicated that, in addition to Ms Last’s conditions, as described in Ms Smith’s Report, Ms Last also had “poorly controlled asthma”.[81] Ms Smith said, at the hearing, that Ms Last’s condition is “predominantly driven by” her:[82]
(a)shoulder injuries
(b)chronic pain;
(c)fibromyalgia, which is a pain amplification syndrome; and
(d)psychological injuries, which she said are standalone conditions but also compound Ms Last’s physical injuries.
[81] Ibid, 192-193.
[82] Ibid, 193.
At the hearing, Ms Smith gave evidence that, on the day of the assessment, Ms Last was not having a great day and that it “could’ve been migraines”.[83] She then said that it was migraines, according to her recollection. She said when she arrived at Ms Last’s home, her curtains were drawn.[84] Ms Smith said that, when she assessed Ms Last, the range of movement in both of Ms Last’s upper limbs was “significantly restricted”.[85]
[83] Ibid, 194.
[84] Ibid.
[85] Ibid.
Ms Smith said that, during her conversation with Ms Last, Ms Last was observed to go to efforts to recall events.[86] Ms Smith said she considered Ms Last to be at risk of falls. Ms Smith indicated she had not done a specific falls risk assessment in respect of Ms Last.[87] When asked what this opinion was based upon, she said that she was aware that Ms Last had purchased an Apple Watch for its falls notification functionality, and that she had judged Ms Last to have issues with balance in that “she stumbled a little bit”.[88] Ms Smith said that Ms Last’s low blood pressure can contribute to light-headedness. Ms Smith indicated at the hearing, although this was not referred to in Ms Smith’s Report, that Ms Last “may benefit from a single pointed walking stick” and then qualified that in the future this might be something to assist her. Ms Smith said Ms Last had not presented as “absolutely needing to walk with a cane or a walking stick or a walker”.[89]
[86] Ibid, 195.
[87] Ibid, 196.
[88] Ibid.
[89] Ibid, 196-197.
Ms Smith was questioned about the basis or bases of her opinion that Ms Last had difficulty with the activity of self-management and issues with her judgement, decision-making capacity, and memory. She confirmed they included the diagnoses of psychological conditions, reports from Ms Falls about the assistance she provides to Ms Last with these activities, and examples that Ms Last had reported to Ms Smith, such as how she had arranged the fridge. When asked to elaborate about this, Ms Smith said that everything in Ms Last’s fridge was “very, very particularly ordered” and that Ms Last had indicated there was a psychological component to why she had arranged things the way she did, and that she was “a little bit OCD”.[90]
[90] Ibid, 201-203.
At the hearing, Ms Last gave evidence that when she has chronic pain, it affected her whole function. This can be from her head to her toes, and she can have trouble walking. At times, Ms Last said she cannot feel her feet. Ms Last described it as a cycle and gave the example that she needs to identify the pain, such as her eye pain, and that if she does not address it (such as turning down the lights), the pain intensifies to the point that it starts to affect everything else.[91]
[91] Ibid, 41.
Ms Last said she had seen Dr Tim Hucker, pain specialist, initially, who had tried various treatments including ketamine injections into the neck and different medications.[92] Ms Last said it got the point that he could no longer offer treatment (due to her difficulties with taking this medication)[93] so she consulted her physiotherapist who suggested the program with Empower Rehab. Ms Last said she had been with Empower Rehab for nearly two years. She said they had taught her different strategies on how to manage the pain such as keeping a sleep diary and pain diary. Ms Last said that “Nick” had signed off that there was nothing more they could do to give her more tools. Ms Last had 10 further sessions of psychology.
[92] Ibid, 43.
[93] Ibid, 46.
Ms Last said that with every operation she has, she has a reduced ability to manage. She said, at the moment, she cannot manage to put on a jumper over her head.[94]
[94] Ibid, 44.
Ms Last said she was not taking Zoloft at the moment and that it will stop her from sleeping if she takes it at night.[95] Ms Last told the Tribunal that she has previously been diagnosed with bipolar disorder (before the Car Accident) but she did not know if it was type I or type II.[96] Ms Last said that Dr Das, her psychiatrist, has said it came from an undiagnosed condition of post-natal depression.[97] She said she does not have schizophrenia but rather mood swings, which she said she does not suffer from any longer with naturopathy treatment.[98] However, Ms Last said her bipolar disorder was contributing to her anxiety, depression, and PTSD, which she said were now grouped together like chronic pain and fibromyalgia.
[95] Ibid, 48.
[96] Ibid, 48-49.
[97] Ibid, 49.
[98] Ibid, 48.
Section 24(1)(a) - Disability
The first criterion, under s 24(1)(a) of the NDIS Act, requires a person seeking access to the NDIS to have 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”.
In National Disability Insurance Agency v Davis (Davis),[99] Mortimer J made the following judicial observation (emphasis in original):
What the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.
[99] [2022] FCA 1002, [69]. Her Honour Justice Mortimer is now the Honourable Chief Justice of the Federal Court of Australia.
The NDIA provides the following policy guidance to decision-makers in its Access Guidelines, which broadly reflects s 24(1)(a) of the NDIS Act (footnotes omitted):[100]
[100] Access Guidelines, 6-7.
Is your disability caused by an impairment?
When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment.
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.
It doesn’t matter what caused your impairment, for example if you’ve had it from birth, or acquired it from an injury, accident or health condition.
It also doesn’t matter if you have one impairment, or more than one impairment.
The NDIA accepts that Ms Last has a “disability” that is attributable to the impairments listed in paragraph [43] above, but it does not accept that she has a disability arising from the impairments resulting from the conditions listed in paragraph [44] above.
At the commencement of the hearing, the NDIA informed the Tribunal that it also accepted that Ms Last had further physical impairments attributable to:[101]
(a)nerve and nervous system pain; and
(b)fibromyalgia.
[101] Transcript of Proceedings, Last and National Disability Insurance Agency (Administrative Appeals Tribunal, 2022/3320, SM Parker, 24-26 July 2023 and 10 November 2023), 9.
Dr Cunningham, in her report dated 11 July 2023, stated that Ms Last suffers from degenerative conditions. Dr Cunningham stated that the degenerative nature of her conditions is evidenced by the additional treatments and surgeries that have been undertaken on Ms Last since Ms Last made a request to the NDIA to become a participant under the NDIS on 12 August 2021. Dr Cunningham states that during this time, the additional stress placed on Ms Last has increased her levels of anxiety and PTSD symptoms experienced, placing additional strain on her relationships, and has worsened her overall condition and quality of life. Dr Cunningham opines that this has increased Ms Last’s need for aids above and beyond those previously provided by TAC.
Ms Falls states, in Ms Last’s SFIC, that assistance provided to Ms Last to date, has been derived from the TAC, family members or Ms Last’s “small disability pension”, which Ms Falls describes as being “unsustainable”.[102]
[102] Ms Last’s SFIC, [8].
The Tribunal finds that Ms Last has a disability arising from the impairments listed in paragraph [43] and [90] above. The Tribunal also considers that the evidence supports a finding that Ms Last also has a disability arising from the condition of the MRSA colonisation as the breakouts experienced from time to time by Ms Last result in serious symptoms and impacts upon her and her other physical and psychological medical conditions. The Tribunal finds that the Ms Last also has a disability arising from a cognitive impairment resulting from her psychosocial conditions of bipolar affective disorder, PTSD, and anxiety. This cognitive impairment is heightened when she has an MRSA outbreak/infection. The Tribunal is satisfied that Ms Last has satisfied the criterion under s 24(1)(a) of the NDIS Act. The Tribunal will now consider the issue of permanency.
Section 24(1)(b) – Permanency
The second mandatory criterion, arising under s 24(1)(b) of the NDIS Act, requires a person seeking access to the NDIS to have one or more impairments that “are, or are likely to be, permanent”. The word “permanent” is not defined in the NDIS Act.
Rule 5.4 of the Access Rules provides that an impairment is considered permanent, or likely to be permanent, “only if there are no known, available and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment”.
Rule 5.5 of the Access Rules provides that:
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.
Rule 5.6 of the Access Rules provides that an impairment “may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent”. This rule also provides that:
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).
Rule 5.7 provides that if an impairment is of a degenerative nature, “the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition”.
The NDIA accepts that the Claimed Impairments are likely to be permanent and that Ms Last meets the requirement under s 24(1)(b) of the NDIS Act.
For present purposes, and on account of the NDIA’s concessions made in the lead up to the hearing, the Tribunal finds that the Claimed Impairments and her further cognitive impairment referred to in paragraph [63] are permanent, or likely to be permanent, and that the requirements under s 24(1)(b) of the NDIS have been met by Ms Last.
The Tribunal will refer to these impairments in the remainder of these Reasons for Decision collectively at the Permanent Impairments.
Section 24(1)(c) – Substantially reduced functional capacity
The next step is for the Tribunal to consider whether one or more of the Permanent Impairments have resulted in a “substantially reduced functional capacity” of Ms Last to undertake one or more of the activities of “social interaction”, “self-care”, “self-management”, “communication”, “learning” and “mobility”, under s 24(1)(c) of the NDIS Act (Prescribed Activities).
General approach
The Access Guidelines provide the following guidance in relation to the question of whether the criterion under s 24(1)(c) of the NDIS Act has been met by a person (footnotes omitted):[103]
[103] Access Guidelines, 8-9.
Does your impairment substantially reduce your functional capacity?
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
•Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
•Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
•Learning – how you learn, understand and remember new things, and practise and use new skills.
•Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
•Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
•Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
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.
To help us decide if you’re eligible, we need to know your capacity and where you need more help. We get this information from your NDIS application.
If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.
We consider how you’re involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day-to-day life.
Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.
The Tribunal is not bound by the descriptions provided in the guidance as to the six Prescribed Activities in s 24(1)(c) of the NDIS Act when assessing the criteria relating to “substantially reduced functional capacity”. However, broadly speaking, the Tribunal considers that those definitions in the Access Guidelines serve as a good starting point.
As observed by her Honour Justice Mortimer in Mulligan v National Disability Insurance Agency (Mulligan),[104] this assessment calls for an examination of evidence given by the person seeking access to the NDIS, as well as medical and clinical evidence. The focus is a practical examination of what the person can and cannot do. Her Honour in Mulligan described the assessment as “avowedly functional, and multi-faceted” and that:[105]
…No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for.
[104] (2015) 233 FCR 201. Her Honour Justice Mortimer is now the Honourable Chief Justice of the Federal Court of Australia.
[105] Ibid, [55]-[56].
The Full Court of the Federal Court of Australia in National Disability Insurance Agency v Foster (Foster),[106] decided that it was an error to apply the NDIA’s guidelines in a way as to equate a person’s inability to undertake one task forming part of “self-care” (that is, in that case, toileting) and to deem this to be the relevant activity for which functional capacity was required to be assessed.[107] The Full Court in Foster observed, at [64], that (emphasis added):
[64]In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
[65] Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of “self-care”, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.
[106] [2023] FCAFC 11.
[107] Ibid, [65].
The judicial authority in Foster calls for the Tribunal to make an assessment of the person’s capacity to undertake the various tasks and actions comprising each of the Prescribed Activities, as a whole. The NDIA contends that the interpretation by the Full Court of the Federal Court of Australia in Foster stands for the proposition that a person does not necessarily have a substantially reduced functional capacity in relation to an activity because they have difficulty with one task related to that activity.[108] The Tribunal accepts this contention.
[108] NDIA’s SFIC, [34].

Rule 5.8 of the Access Rules elaborates upon when an impairment is taken to have resulted in a “substantially reduced functional capacity” to undertake any one or more of the Prescribed Activities. This rule provides as follows:
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
[Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.]
As highlighted by the NDIA’s SFIC, the Full Court of the Federal Court of Australia in Foster addressed the question of what is meant by “effectively and completely” as appearing in r 5.8(a) of the Access Rules. Of note, Justice Derrington observed as follows (emphasis in original):
[83] In the overall legislative scheme, the adverb “completely” appears to be redundant, and in any event, unachievable. If “completely” is to be given its ordinary meaning, what is being asked of the rule is an assessment of whether a person’s impairment results in substantially reduced functional capacity to participate “wholly” or “perfectly” in the activities of communication, social interaction, learning, mobility, self-care and self-management – an impossible bar for almost everyone.
…
[88] Within this statutory context, and having regard to the purpose of s 24 as described in the revised Explanatory Memorandum, a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.
As cautioned by the judicial observations in Mulligan, the Tribunal should not confine its consideration of whether a person has met the disability requirement under s 24(1)(c) of the NDIS Act by considering their circumstances only through the prism of r 5.8 of the Access Rules.[109] Instead, her Honour Justice Mortimer (now, Chief Justice) made clear that the statutory task required the decision-maker to consider whether a person’s functional capacity is substantially reduced in any of the six Prescribed Activities.
[109] Mulligan, [77].
The Tribunal has considered evidence about the impacts of the Permanent Impairments on Ms Last’s functional capacity, including the following:
(a)the direct evidence of Ms Last and Ms Falls at the hearing about the extent of the reduction in Ms Last’s functional capacity;
(b)the information set out in the Access Request Form and the supporting medical evidence submitted with the form;
(c)the evidence of Ms Last, as set out in Ms Last’s SLE;
(d)the observations by Dr Cunningham, Dr Yuen, and Ms Smith, about Ms Last’s functional capacity and the impacts of her Permanent Impairments; and
(e)extracts from the summonsed medical and clinical evidence previously lodged with the Tribunal in respect of Ms Last, as drawn to the attention of the Tribunal at the hearing.
This evidence will be referred to in detail as the Tribunal considers whether one or more of the Permanent Impairments resulted in a substantially reduced functional capacity when undertaking any one or more of the six Prescribed Activities under s 24(1)(c) of the NDIS Act.
The Tribunal will deal, firstly, with the activity of “self-care”.
Self-care
Self-care is described in the Access Guidelines as follows:[110]
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
[110] Access Guidelines, 9.
The task of “eating” if viewed through a narrow lens, can involve the action of being able to transfer the food on a person’s plate into their mouth, which may involve cutting the food on the plate. The task of “eating” if viewed through a wider lens, can involve the sourcing of the food, say from the supermarket, preparing the meals and then transferring the food into a person’s month. The Tribunal takes the view, for an adult participant, that “self-care”, as one of the Prescribed Activities, involves both the cooking or preparation of the meals and transferring the food into the person’s month but does not include the action of planning for meals and acquiring the food (that is, stocking the fridge). The Tribunal will consider this latter task as part of the activity of “self-management”.
There is no evidence that Ms Last has any difficult with feeding herself in terms of transferring food from a plate/bowl sitting on the table, into her mouth.
In her SLE, Ms Last stated that she struggles to shower, dress, and dry herself, due to “chronic pain and/or MRSA”. Ms Last explained that showering was essential to control her MRSA condition, to prevent infections and other “MRSA caused symptoms”. Ms Last stated that she has a non-slip shower mat and a handheld shower head to assist her with showering.[111] The Tribunal considers that it is not uncommon for persons, both with and without disabilities, to use such items when showering.
[111] Ms Last’s SLE, 6.
Ms Last stated that she has cut her hair short and will have regular haircuts to “keep an eye on” MRSA pustules on her neck, ears, and scalp. She explained that regular monitoring of the lumps and potential pustules is required to ensure that they are controlled. Ms Last stated that when she had a carer, they were able to check for her and now, the hairdresser or friend might notice them. Ms Last stated that she will ask her doctor to check, during an appointment if she is concerned that she might have an MRSA infection.[112]
[112] Ibid.
In her SLE, Ms Last stated that she does not use aids to put on clothes or shoes and that it is easy for her to do so. Ms Last stated that she will avoid buttons, especially small ones, or zips, whenever she can.[113]
[113] Ibid.
Ms Last stated that she is “prone to slipping, falls and tripping”, due to her light headedness, reaction times and balance issues. She stated she has broken her arm and grazed her hands and knees as a result. Ms Last stated that she wears shoes with good grip, especially when indoors so that she does not slip on the tiles. Ms Last stated that she also ensures that there are not things like mats and cords in the way.[114]
[114] Ibid.
In her SLE, Ms Last stated that she has a plan of action for each task, which she endeavours to adhere to when she is unwell. She stated that she regularly forgets to take her medication and does not always recognise the signs to pick up that she is becoming unwell, until it is too late.[115]
[115] Ibid.
Ms Last stated that when she has an (MRSA) infection, she does not feel like eating and will often skip meals. She stated that, at other times, she will have something that easy for her to prepare. Ms Last stated in her SLE that she endeavoured to walk to her mother’s home, once a day, even if she is having a “bad day”. Ms Last stated that she used to stay there to have something to eat before she headed home. In Ms Last’s SFIC, Ms Falls, on Ms Last’s behalf, informed the Tribunal that Ms Last’s mother passed away in December 2022, which Ms Fall states has reduced the support available to assist Ms Last.[116]
[116] Ms Last’s SFIC, [3].
Ms Last stated that when she had been at home while she is unwell, a friend or neighbour will often message or telephone her check in on her. She stated that they might drop food over, “to get me through”.[117]
[117] Ms Last’s SLE, 6.
In Ms Last’s SLE, she confirms that she is able to do her laundry because the washing machine has been elevated and she will hang the clothes on the clothes airer inside to dry.[118]
[118] Ibid.
The NDIA arranged for an “activities of daily living” (ADL) assessment of Ms Last to be undertaken at Ms Last’s home on 17 February 2023 by Ms Smith, OT. Ms Smith issued a detailed report following this assessment on 27 March 2023 (Ms Smith’s Report).[119] Of note in relation to the activity of “self-care”, Ms Smith stated as follows in her report:
[119] JHTB, 181-226.
(a)Ms Last has explained to Ms Smith that she experiences numbness in her hands, and that she frequently has difficulty with dropping items, including in the kitchen;
(b)Ms Last has demonstrated to Ms Smith that she had significant restrictions of flexion, abduction, and external rotation movements in her shoulders bilaterally, adversely impacting her functional capacity when requiring bilateral arm movements. These restricted movements impact on Ms Last’s personal care including when putting on a bra, dressing/undressing, showering, and washing her hair, and when performing reach, carrying, and lifting;
(c)Ms Last had demonstrated throughout the assessment that she has difficulty performing activities requiring upper limb use and that the use of a person’s upper limbs is an inherent requirement of all ADLs;
(d)Ms Last was able to perform forward bending. Ms Last is able to squat but avoids squatting when she has migraines. She is unable to perform a full squat;
(e)Ms Last had reported using a retrieving stick for picking up light objects off the floor and Ms Smith considered this is appropriate and supported Ms Last’s efforts in maintaining independence;
(f)Ms Last has reduced functional capacity in kneeling, especially with the left knee, and avoids kneeling and requires the support of furniture if she is transferring in and out of a kneeling position;
(g)Ms Last has reduced functional capacity for independence with some aspects of her self-care, mainly dressing, showering and toileting, and the provision of adaptive equipment or aids would support her capacity to maximise her independence for self-care. Specifically, Ms Smith stated in her report:
(i)in relation to showering, Ms Last in independent in showering but her low blood pressure, migraines and risk of falls present a safety risk for her when showering and she has no shower chair;
(ii)in relation to grooming, Ms Last is independent in washing her face and hands, cleaning her teeth, and applying her makeup. She has difficulty washing her hair as a consequence of the reduced functional right shoulder movement for reach above her head;
(iii)in relation to dressing and undressing, Ms Last reported being independent but should be supported with the use of a dressing stick and front-closing bras;
(iv)in relation to toileting, she is independent with self-pacing; and
(v)in relation to sleeping, Ms Last tosses and turns due to the fibromyalgia and chronic pain, leading to high levels of fatigue.
The Tribunal will commence by considering whether any of the deeming provisions in r 5.8 of the Access Rules apply to Ms Last in relation to the activity of “self-care”.
Based on the evidence referred to in paragraphs [117] to [125] above, the Tribunal finds that there are some tasks forming part of the activity of self-care that Ms Last is unable to carry out without assistive technology (AT) or equipment (other than commonly used items), namely:
(a)undoing buttons or zips;
(b)taking jumpers on or off over her head; and
(c)lifting heavy objects.
The Tribunal finds that Ms Last can undertake some tasks within the activity of self-care, albeit with difficulty, such as:
(a)showering, washing her hair, dressing, and drying herself; and
(b)checking whether she has MRSA pustules on her neck, ears, and scalp.
However, there are many other tasks which Ms Last is able to undertake independently, such as:
(a)putting on and taking off her clothes and shoes, save for clothes with buttons or zips, which she will avoid using;
(b)preparing simple meals for herself;
(c)walking; however, the Tribunal notes that Ms Last reports she is “prone to slipping, falls and tripping”, due to her light-headedness, reaction times and balance issues;
(d)attending to her toileting needs by using self-pacing strategies; and
(e)transferring in and out of bed, in and out of the car, and in and out of the chair using her recliner.
The Tribunal is required to make a point-in-time assessment, that is, whether Ms Last currently has a substantially reduced functional capacity to undertake the activity of self-care or whether any of the deeming provisions under r 5.8 apply to her. The Tribunal notes that Ms Last describes the level of her symptoms from the Permanent Impairments as fluctuating. The Tribunal will make an assessment as to the impact of her Permanent Impairments on her functional capacity overall, taking into account the fluctuations that occur from time to time.
Firstly, in relation to the deeming provision under r 5.8(a) of the Access Rules, the Tribunal is not satisfied on the evidence that Ms Last is unable to participate effectively or completely in the activity of self-care, or to perform tasks or actions required to undertake or participate effectively or completely in this activity, without AT, equipment (other than commonly used items) or home modifications. While there are a few tasks that Ms Last presently uses AT or adaptive equipment to assist her to do them, such as using the mattress lifter to help her change the sheets, a pick-up stick to pick up objects off the floor, the evidence revealed that mostly, Ms Last does not presently use or require AT, equipment, or home modifications to help her undertake most of the tasks and actions making up the activity of self-care. Ms Last said she is able to shower and to brush her teeth independently. She uses a non-slip shower mat and a handheld shower head, but these items are commonly used bathroom aids and do not fall into the category of AT or equipment within the meaning of r 5.8.
Ms Last is also able to dress independently, apart from needing to modify the types of clothes that she wears by not wearing clothes with buttons or zips.
In conclusion, the Tribunal finds that r 5.8(a) does not apply to Ms Last in relation to the activity of self-care because, when taking into account the evidence overall, the Tribunal finds that Ms Last does not usually require AT, equipment (other than commonly used items) or home modifications to enable her to participate effectively or completely in most of the actions and tasks forming part of the activity of self-care.
Secondly, the Tribunal finds that Ms Last does not usually require 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 of self-care. The Tribunal accepts that Ms Last would like another person to help her with some self-care tasks, but this appears to arise from Ms Last’s anxiety and concern that she will not receive the care she needs at times when she is recovering or rehabilitating after further surgical intervention she may require. The Tribunal does not consider it appropriate to take this into account when assessing whether the NDIS access criteria are met, as it must consider Ms Last’s needs overall, rather than focus on isolated and momentary periods when increased post-surgical supports are required. Based on the evidence referred to above, the Tribunal finds that overall, Ms Last has been and is able to continue to undertake most of the tasks and actions forming part of self-care without other persons helping her. The Tribunal finds that r 5.8(b) does not apply to Ms Last in relation to the activity of self-care.
The Tribunal accepts that there are some tasks of self-care that Ms Last is unable to perform without the use of the AT/equipment she currently uses, namely, the bed lifter and the pick-up stick; however, when the evidence is considered overall, the Tribunal is not satisfied that the deeming provision under r 5.8(c) applies, because the evidence referred to above does not support a finding that Ms Last is unable to undertake most of the tasks and actions of self-care independently, even with the use of AT, equipment, home modifications or assistance from another person.
Accordingly, as a first step, the Tribunal finds that the deeming provisions under r 5.8 do not apply to Ms Last in relation to the activity of self-care.
It remains for the Tribunal to make a general assessment whether Ms Last’s Permanent Impairments have resulted in a substantially reduced functional capacity in the activity of self-care. As mentioned above, the Full Court of the Federal Court of Australia in Foster has held that the Tribunal must not focus its consideration on a single task. The Tribunal has taken into account Ms Last’s level of capacity to carry out the various tasks and actions that make up the general activity of self-care. The Tribunal has taken into account the activities that Ms Last can and cannot do, and those she has difficulty with, as outlined above in paragraphs [127] to [129]. Based on those matters, and the direct observations of Ms Smith, who undertook a comprehensive ADL assessment of Ms Last, the Tribunal finds that overall Ms Last can undertake the vast majority of tasks and actions making up the activity of self-care independently, even if she is required to limit the frequency or speed by which she will undertake those tasks or to modify the manner in which she does them.
Based on the findings in paragraphs [127] to [129] and Mr Smith’s direct observations and opinions set out in paragraph [125], when it comes to Ms Last using her body and mind to undertake the activity of self-care, specifically, her personal care, hygiene, grooming, and eating, and health, on balance, the Tribunal certainly acknowledges that Ms Last is unable to or has difficulty undertaking some tasks forming part of the activity of self-care, but the Tribunal agrees with the NDIA’s contention that Ms Last does not reach the requisite threshold under s 24(1)(c) of the NDIS Act of having substantially reduced functional capacity in the activity of “self-care” as a result of any one or more of her Permanent Impairments, and finds accordingly.
Self-management
In the Access Guidelines, the NDIA describes the reference to “self-management” (as referred to in s 24(1)(c) of the NDIS Act), as follows:[120]
Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
[120] Access Guidelines, 9.
The Tribunal notes the qualification the NDIA has included in its description of this activity in the Access Guidelines, being that it considers that this activity refers to a person’s mental or cognitive ability to manage their life only, and not their physical ability to undertake actions or tasks making up this activity. The Tribunal considers that the insertion of such a qualification is not supported either by the wording in s 24(1)(c) of the NDIS Act, nor the wording in the Access Rules. The Tribunal will not apply this aspect of the NDIA’s guidance as it does not consider the qualification made by the NDIA to be consistent with operative provisions under the legislation. The Tribunal considers that self-management may encompass a whole range of tasks which may be actioned physically or mentally, and therefore, may potentially be impeded by any of the different types of impairments referred to in s 24(1)(a) of the NDIS Act, and not merely some of them. The NDIA states in its Access Guidelines that this activity may include “day-to-day tasks at home, how you solve problems, or manage your money”.

The Tribunal considers that the activity of self-management encompasses day-to-day tasks such as acquiring food and other belongings, planning meals, maintaining/repairing/cleaning the person’s clothes/home/yard/car and other belongings, managing finances and other personal affairs, including managing any medications, or attending to administrative tasks such as banking activities, organising insurances, and paying bills.
The NDIA does not accept that this criterion is met by Ms Last. During closing submissions, the NDIA contended that it is unclear whether Ms Last’s incapacity to undertake some of the activities of self-management, have arisen from her cognitive or psychosocial impairments and whether those impairments are permanent.[121] The NDIA suggested that part of the reason her daughter has taken over some responsibility for self-management activities is because Ms Last is now receiving the disability support pension which means she had limited means which does not allow for errors to be made. The NDIA also highlighted that Ms Last managed a small amount of money and her own medications.[122] The NDIA accepts that Ms Last has some, “not insignificant”, assistance from her daughter but contends, that Ms Last is able to undertake “most of the tasks of self-management”.[123] The Tribunal does not accept these contentions and regards them to be inconsistent with the evidence given by Ms Last and Ms Falls at the hearing. The Tribunal found both Ms Last and Ms Falls to be credible witnesses and there was no challenge by the NDIA that their respective evidence was not credible.
[121] Transcript of Proceedings, Last and National Disability Insurance Agency (Administrative Appeals Tribunal, 2022/3320, SM Parker, 24-26 July 2023, and 10 November 2023), 282.
[122] Ibid.
[123] Ibid, 282-283.
In Ms Last’s SLE, she stated that she uses routines and habits to organise and arrange her life or else she would be “completely overwhelmed”. Ms Last stated that she manages her household tasks such as cleaning and basic cooking, with the assistance of the aids that she has received “from the TAC OT”. Ms Last stated that she has also found alternative solutions for herself including pegs that she can hold and squeeze open, non-breakable items in place of glasses and plates in case her grip gives way, frozen vegetables, prepared food items to reduce repetitive activities and using a lot of shopping bags and putting a small amount in each, so that she is able to lift and carry them. Ms Last stated that if she is unable to prepare basic meals, she will use a microwave to heat up a frozen meal or soup and if she is unable to go to the shops, she will rely upon her friends to collect a few staples for her from the supermarket to “get her through”. Ms Last also stated that Ms Falls has now set up an online grocery shopping account with Woolworths and Coles and for Ms Last to use the “click and collect” service.[124]
[124] Ms Last’s SLE, 7.
In her SLE, Ms Last stated that she will break down her cleaning activities into small tasks and spread them out over the course of a week or fortnight. Ms Last stated she will do one load of washing a day and one “large cleaning job” such as cleaning the shower, cleaning the floors, or changing the beds per week or fortnight. Ms last stated that when she is unable to clean as she would like to, she will need to leave it.[125]
[125] Ibid.
Ms Last stated that she has modified certain tasks as follows:[126]
(a)she has elevated her washing machine, so she can pull the laundry downwards into the basket and slide it into the airer;
(b)she uses a cordless vacuum, to avoid tripping over the cord;
(c)she undertakes “spot” vacuuming, rather than vacuuming the whole house; and
(d)she uses the bed lifter to make and change her bedsheets.
[126] Ibid.
In her SLE, Ms Last stated that she will shop locally at familiar places when it is not too busy, to avoid becoming overwhelmed. She stated that she previously had a carer to assist her with shopping. Ms Last stated that if she is unable to lift or carry items, she will seek assistance from staff or other shoppers. She stated that she will transfer the items individually from the trolley to the boot of her car. Ms Last stated that she purchases food, fuel and items from the chemist and uses a shopping list of the items she needs to buy and the places where she needs to go. She stated that she uses her debit card for payment of the goods so that she does not need to worry about receiving the correct change. Ms Last stated that she relies upon Ms Falls to purchase clothes, shoes, naturopathic supplements, and technology for her.[127]
[127] Ibid.
In terms of gardening and home maintenance, Ms Last stated that she is leasing her home and the real estate agent will undertake property maintenance. Ms Last stated she has chosen a place where there are no lawns to be mowed. She stated that TAC used to provide gardening services to enable basic garden and weeding management but now, she is required to continually rely upon the assistance of family and friends.[128]
[128] Ibid.
In her SLE, Ms Last stated that she relies upon Ms Falls to manage her finances, including managing her money, budgeting, banking as well as receiving and paying her bills. Ms Last stated that Ms Falls is her nominated point of contact for her real estate agent to manage her tenancy. Ms Last stated that she found those responsibilities overwhelming and “an added stress due to technology” and her “memory”. She stated that it was not uncommon for her to mistakenly pay her bills twice. Ms Last stated that she has difficulties coping with situations involving pressure and stress and that she struggles with processing information to enable her to make decisions and to solve day-to-day problems. Ms Last stated she is “completely overwhelmed by complex decisions” and will rely upon Ms Falls and other trusted friends “for guidance, support and action”.[129]
[129] Ibid.
Ms Last gave evidence about her ability to undertake the activity of self-management at the hearing. Ms Last confirmed that Ms Falls had been assisting her to manage her financial affairs and she thinks that this began in about 2011.[130] When asked why she had asked her daughter to help her, Ms Last said that she did not have the required skills to pay her bills at that time or to manage her overspending, and because of the stress it was causing her. Ms Last later described that she was lying in bed at night worrying about how she was going to pay her bills.[131] Ms Last referred to having trouble remembering if she had paid a bill or not.[132] Ms Last also gave evidence that she had become aware that she was “very susceptible, being a very generous person” with her money and helping people in need, that she ran short of paying her own bills. Ms Last said that before the Car Accident, she had the ability to “fairly successfully manage” her money.[133]
[130] Transcript of Proceedings, Last and National Disability Insurance Agency (Administrative Appeals Tribunal, 2022/3320, SM Parker, 24-26 July 2023 and 10 November 2023), 114.
[131] Ibid, 116.
[132] Ibid, 114.
[133] Ibid, 115.
At the hearing, Ms Last agreed to a proposition put to her that she had a level of stress before the Car Accident, which occurred in 2008, and that between 2008 to 2011 she had a level of extreme stress. She said she remembered laying in hospital after being on a drip for 18 days not knowing if she was going to pull through, whether she would be affected for the rest of her life and had lost her ability to self-manage.[134]
[134] Ibid, 125.
At the hearing, Ms Last said that she had not seen a psychiatrist regularly until after the trauma she experienced from the Car Accident. She referred to having flashbacks and her ability to drive and to make decisions, which was impacted, especially after her first surgery when she had nothing to support her shoulder as they were trying to get the MRSA under control. She said that when she contracted MRSA, she was unable to process what was going on and that her mental health fluctuated, as did her ability to make decisions and manage day-to-day. She described this as “extreme” at times, that she would forget things and have no recollection.[135]
[135] Ibid, 120-121.
Ms Last and Ms Falls gave evidence at the hearing that Ms Last has not yet given Power of Attorney to Ms Falls as they live in different states and the complications which, they said, arise in relation to this, but they informed the Tribunal they intend for one to be executed.[136] Ms Falls explained it was in the process of being prepared but Ms Last had become sick. They confirmed that Ms Falls was Ms Last’s authorised signatory and point of contact in respect of Centrelink and its processes.[137] At the hearing, Ms Last described the tasks that Ms Falls does for her as including paying Ms Last’s bills and managing her everyday money. Ms Falls said that she provides her mum with a set allowance.[138]
[136] Ibid, 122-123.
[137] Ibid, 122.
[138] Ibid, 130.
At the hearing, Ms Last gave evidence about being the victim of a scam. When asked about this by the Tribunal, Ms Last said that she had given the person quite a substantial amount of money, of which Ms Falls was unaware at the time, and that this had resulted in Ms Falls taking control of Ms Last’s money, at Ms Last’s request. Ms Last said this occurred not long after she had contracted MRSA. Ms Last explained that she had given $2,000 to a person she was chatting with on social media as they said they needed this money for medical bills. Ms Last was asked whether she would have done this type of thing before the Car Accident, to which she replied “[n]ever”. Ms Last said she was very ashamed she had been scammed and that this was probably the biggest “wake up call” to her that something was “[not] right”.[139]
[139] Ibid, 39-40.
In Ms Smith’s Report, she stated that Ms Last required assistance with the majority of routine and heavy domestic tasks as a consequence of her physical restrictions. Ms Smith said that Ms Last will attempt the tasks of sweeping, mopping, and vacuuming with self-pacing and self-management but has difficulty with heavy cleaning. Ms Smith stated that Ms Last’s psychological conditions, including her PTSD, compound those difficulties.[140] Ms Smith said that Ms Last has difficulty performing laundry tasks as they involve manual handling, and she has difficulty hanging items on an elevated clothesline. The Tribunal considers that despite those difficulties, Ms Last is able to manage her laundry due to modifying the approach she takes to this task and the elevated positioning of her washing machine. Ms Smith stated that Ms Last sometimes becomes disoriented when shopping and forgetful and experiences difficulty shopping due the functioning of both of her upper limbs (which are impaired). Ms Smith observed Ms Last being able to fill her kettle. Ms Smith stated that Ms Last was independent in preparing a light snack or breakfast but that “evidence of her dropping items was apparent”.[141] Ms Smith stated that Ms Last is able to wash her dishes. Ms Smith stated that Ms Last has “difficulty appropriately managing her money including due to her psychological conditions which manifest including in impaired memory, judgement and decision-making”, and that Ms Falls assists Ms Last with money management.[142]
[140] JHTB, 208.
[141] Ibid, 209.
[142] Ibid.
Ms Smith stated that in her opinion, Ms Last required some assistance with light cleaning, and heavy cleaning, to maintain her safety and independence, due to her physical functional limitations, which are compounded by her psychological functional limitations. Ms Smith stated that Ms Last required assistance with self-management, including to manage bill payment and money management, and to undertake necessary planning of activities to ensure her needs are properly met. Ms Smith indicated this was so especially on account of Ms Last’s psychological injuries/conditions and functional limitations.[143]
[143] Ibid.
The Tribunal gained an impression from the evidence in this matter, including the statements by Ms Smith, referred to in the above paragraph, that Ms Last’s reduction in functional capacity for the activity of tasks and actions comprising “self-management” are attributable to her underlying very significant psychological conditions of bipolar disorder, anxiety, and PTSD. This is an important context for why Ms Last has struggled with being able to self-manage, particularly when it comes to dealing with daily stressors or to managing her financial affairs which are not complex. The Tribunal also finds that this negatively impacts Ms Last’s ability to be able to cope with the ongoing and fluctuating symptoms arising from her several physical ailments, many of which are serious, such as her shoulder, neck, back and knee issues.
The Tribunal will commence by considering whether the deeming provision under r 5.8(a) applies to Ms Last in relation to the activity of self-management. Overall, the Tribunal finds that Ms Last does not usually require AT, equipment (other than commonly used items) or home modifications, to enable her to participate effectively or completely in most of the actions and tasks forming part of the activity of self-management. The Tribunal acknowledges that she has an Apple Watch, which she purchased for the purpose of operating as a falls alert if she is to fall. However, the Tribunal considers this device to be a commonly used item and not an item of AT or equipment within the meaning of r 5.8(a).
The Tribunal considers that r 5.8(b) of the Access Rules is of greater relevance to the individual circumstances of Ms Last. The Tribunal acknowledges there are several tasks or actions forming part of the activity of self-management that Ms Last is able to manage to complete. However, the Tribunal is satisfied that Ms Last usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to perform most tasks or actions required to undertake or participate in the activity of self-management.
The evidence referred to above demonstrates that Ms Last is not able to manage her own affairs, home, or finances without substantial assistance of others (predominately, Ms Falls), without becoming significantly overwhelmed or suffering adverse consequences, such as distress and sustaining financial losses. Those losses have come about, due to Ms Last’s mistakes or significant errors of judgment, to her own detriment, arising from her impaired psychological state and its cognitive impacts.
Ms Last is also impaired to the extent that there are limitations on her ability to drive. While she manages to drive on some days, Ms Last experiences significant challenges due to her chronic pain, neck pain and underlying PTSD and anxiety. On some days, when she is having a bad day, she will need to stay at home.
Ms Last’s anxiety has a debilitating impact upon her. Ms Last has serious limitations as to the prescription medication she is able to have, which might otherwise alleviate symptoms, because of the adverse effects those pharmaceuticals have on her. Compounding this is the constant threat impacting on Ms Last’s underlying psychosocial conditions, that Ms Last will experience an outbreak of an MRSA infection. The Tribunal accepts that the evidence of Dr Cunningham in paragraph [70] describing in detail the very serious symptoms which Ms Last is required to endure when she experiences an MRSA infection. The Tribunal considers that Ms Last would be lost without the assistance that is being provided to her at present by her daughter. The Tribunal considers that Ms Last has a strong streak of independence, by the statements to this effect made by her at the hearing, and does not wish to be dependent upon her daughter needing to manage many aspects of her affairs, but Ms Last has come to realise that this is required and has submitted to receiving such assistance.
On the whole, the Tribunal finds that Ms Last has not been able to undertake most of the tasks and actions forming part of self-management without other persons helping her. The Tribunal finds that r 5.8(b) applies to Ms Last in relation to the activity of self-management and, for this reason, it is deemed that Ms Last meets the criterion under s 24(1)(c), in that her Permanent Impairments have resulted in substantially reduced functional capacity in relation to the activity of “self-management”. Given this finding, the Tribunal concludes that Ms Last has met the criterion under s 24(1)(c) of the NDIS Act.
Section 24(1)(d) – Economic and social participation
The Tribunal must now consider whether any one or more of the Permanent Impairments have affected Ms Last’s capacity for social or economic participation. In the NDIA’s SFIC and during closing submissions, the NDIA conceded that this criterion has been met by Ms Last. This issue is not in contest between the parties and the Tribunal finds that Ms Last meets this criterion. Ms Last is currently unemployed and has been for some time, against a backdrop of having been gainfully employed before her Permanent Impairments reached their current level of severity. Ms Last also gave detailed evidence, which the Tribunal accepts, about the substantial reduction in her social participation in recent times. Ms Last was very social and engaged in Church activities in the past and that is no longer the case.
The Tribunal concludes that Ms Last meets the criterion under s 24(1)(d) of the NDIS Act.
Section 24(1)(e) – Likely to require support under the NDIS for Ms Last’s lifetime
Section 24(1)(e) requires the Tribunal to be satisfied that Ms Last is likely to require support under the NDIS for her lifetime. There are no rules in the Access Rules which specifically expand upon how to interpret this phrase in s 24(1)(e). The NDIA contends that Ms Last does not meet this criterion because the TAC may be more appropriate to provide her with the type of assistance she requires. The NDIA suggests this would extend to psychological and psychopharmacological treatment, physiotherapy, occupational therapy, rehabilitation programs and cleaning and garden maintenance services around the home. The NDIA stated in its SFIC that most of these supports, if not already funded by the TAC, could be accessed by Ms Last under Medicare via a referral from her general practitioner.
This was not greatly expanded upon by the NDIA during the closing submissions except to submit the following, in effect:[144]
(a)because Ms Last has not established that she meets the criterion under s 24(1)(c) of the NDIS Act, the Tribunal should not be satisfied that she would require the assistance of the NDIS for her lifetime; and
(b)the evidence suggests that TAC funds, and will continue to fund, some of the types of assistance or supports that Ms Last is seeking.
[144] Transcript of Proceedings, Last and National Disability Insurance Agency (Administrative Appeals Tribunal, 2022/3320, SM Parker, 24-26 July 2023 and 10 November 2023), 283-284.
The difficulty for the NDIA in respect of the Tribunal entertaining the first of these two contentions is that the Tribunal does not accept the NDIA’s earlier contention that Ms Last does not meet the criterion under s 24(1)(c) of the NDIS Act. The Tribunal has instead found that Ms Last has substantially reduced functional capacity to undertake the activity of “self-management”, arising from Ms Last’s Permanent Impairments and, in particular, her psychosocial and cognitive impairments. The Tribunal has also found that those impairments are, or likely to be permanent, in that they are, or likely to be, enduring.
Further, the Tribunal considers that caution should be taken not to conflate the separate mandatory criterion under s 24(1) of the NDIS Act with one another. Instead, the Tribunal considers that it must undertake a distinct consideration as to whether (as the words of s 24(1)(e) state), Ms Last is likely to require support under the NDIS for her lifetime. In that regard, the evidence before the Tribunal shows a medical history of Ms Last’s having several physical, sensory, cognitive, and psychological impairments, arising from ongoing underlying medical conditions, some of what are described by her doctors as degenerative and getting continually worse, rather than better. Ms Last and Ms Falls both gave evidence, which the Tribunal accepts, that Ms Last’s capacity to do things is deteriorating. It has been the case that Ms Last has required one surgery after another (nine in total now) and had to endure the post-surgical rehabilitation to go along with that. There was no compelling evidence that Ms Last’s degree of functional capacity is moving in an upward trajectory. Instead, her degree of incapacity is getting worse. Ms Last travels through life with the added complications of the MRSA colonisation, which may result in disruptive and painful outbreaks from time to time, underlying PTSD, and bipolar disorder, making emotional and mood regulation for Ms Last a constant challenge. She also has referred pain arising from the canal stenosis and degeneration in her cervical spine which sometimes causes migraines and her light headedness, putting her at risk of falling.

In relation to the NDIA’s second contention as set out in paragraph [166(b)] above, the Tribunal notes that the NDIA appears to have imported into this criterion a further requirement that the supports required by Ms Last are not more appropriately sourced, funded or provided under some other service system, such as under the TAC legislation or through Medicare under the public health system. The Tribunal considers that the wording of s 24(1)(e) of the NDIS Act does not support the interpretation contended for by the NDIA. The Tribunal does not consider that it would be a proper interpretation of s 24(1)(e) to undertake an assessment of whether the required supports could be provided by others. The wording of s 24(1)(e) simply requires the Tribunal to satisfy itself as to whether Ms Last will require support under the NDIS for her lifetime. For the reasons set out in the above paragraph, the Tribunal finds that Ms Last meets this criterion.

CONCLUSION

For the reasons set out above, the Tribunal is satisfied that Ms Last meets the “disability requirements” under s 24 of the NDIS Act because she meets all of the mandatory criteria. Given this conclusion, it is not necessary for the Tribunal to proceed to a consideration of whether, in the alternative, she meets the “early intervention requirements” under s 25 of the NDIS Act.
The Tribunal sets aside the Decision Under Review and, in substitution, decides that Ms Last meets the access criteria under s 21 of the NDIS Act and is granted access to the NDIS.

I certify that the preceding 171 (one hundred and seventy-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

.................................[sgd].......................................
Associate
Dated: 6 February 2024

Dates of hearing:

Date final submissions lodged:

24, 25, 26 July 2023 and 10 November 2023

13 December 2023

Applicant: Self-represented with significant support from her daughter, Ms Andrea Falls

Solicitors for the Applicant:

HWL Ebsworth Lawyers

Solicitor Advocate for the Respondent:

Ms Sarah Thompson

[2024] AATA 122

6 February 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Appeal

Standing

Statutory Construction

Expert Evidence

Procedural Fairness

Dates of hearing: Date final submissions lodged:	24, 25, 26 July 2023 and 10 November 2023 13 December 2023
Applicant:	Self-represented with significant support from her daughter, Ms Andrea Falls
Solicitors for the Applicant:	HWL Ebsworth Lawyers
Solicitor Advocate for the Respondent:	Ms Sarah Thompson