Neal and National Disability Insurance Agency (NDIS)
[2025] ARTA 1051
•21 July 2025
Neal and National Disability Insurance Agency (NDIS) [2025] ARTA 1051 (21 July 2025)
Applicant/s: Tammy Neal
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/7899
Tribunal:Senior Member J Collins
Place:Brisbane
Date:21 July 2025
Decision:Pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision under review.
............................................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access – sjogren’s syndrome, lupus- fibromyalgia – chronic fatigue syndrome – depression – whether applicant meets disability requirements – NDIS Act s24(1)(c) – whether impairments substantially reduce functional capacity – communication – social interaction – mobility – learning – self-care – NDIS Act s25 – whether applicant meets early intervention requirements – decision under review affirmed.
Legislation
Administrative Review Tribunal Act 2024(Cth) sections 105
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth) sections 21,22, 23, 24, 27, 29
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
G v Minister for Home Affairs [2019] FCAFC 79
G v Minister for Immigration and Border Protection [2018] FCA 1229
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v Davis [2022] FCA 1002
Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24ALR 577
Re Schwass and National Disability Insurance Agency [2019] AATARooney and National Disability Insurance Agency [2021] AATA 3523
PNCB v CEO, National Disability Insurance Agency [2026] ARTA 66
Madelaine v National Disability Insurance Agency [2020] AATA 4025
Kilgallin v National Disability Insurance Agency [2017] AATA 186
Garcia Albiol v National Disability Insurance Agency [2024] AATA 496
Moxham v National Disability Insurance Agency [2025] ARTSecondary Materials
NDIS – Applying to the NDIS access guidelines, as of 11 March 2025.
Statement of Reasons
Ms Tammy Neal is a 54-year-old woman. She seeks access to the National Disability Insurance Scheme (‘the scheme’) so that she can receive supports on the basis of impairments due to multiple conditions.
Mrs Neal’s application for access was refused at first instance by the National Disability Insurance Agency (‘the Agency’) and again upon internal review.[1]
[1] T1A, T2.
Ms Neal subsequently applied to the Administrative Appeals Tribunal (‘AAT’) on 18 October 2023 for review of the Agency’s internal review decision (‘the decision under review’).[2] In her application to the AAT she stated:
All reasonable treatments have been tried and can be supported with additional historical evidence that we have managed to stabilize symptom presentation. Reports supplied are in relation to continuing these treatments where applicable.
Some reports showing history of treatment suggest ongoing experimental therapy which was then not supported in reports by a more senior, more qualified specialist i.e. colour therapy and this does not appear to have been picked up in the internal review.
Being regional, we are subjected to the extra burden of a fairly constant rotating door of, or lack of availability of specialists and medical care for complex cases, so the report providers may have been only one of many specialists in their field that have been part of stabilizing symptoms over the last 7 years. The reports supplied for this application
come from the current specialists I see since my move to Port Macquarie (from a very small regional town, for better medical care approx. 2 years ago). Many previously involved health care providers have moved on or left the country and it is difficult to obtain reports from them now. Their details can be provided to support historical application ofrecommended treatments at that particular time (some have since been medically discredited as primary treatments and actually worsened symptoms for me) if needed.[3][2] T1; section 103 of the NDIS Act.
[3] T1.
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is therefore made by the Tribunal.
At the hearing Ms Neal was self-represented. The Agency was represented by Ms Aditi Rao of Counsel instructed by Maddox Lawyers.
For the reasons set out below, the Tribunal affirms the decision under review and finds that Ms Neal does not meet disability requirements under section 24 of the National Disability Insurance Act 2013 (Cth) (‘NDIS Act’) or the early intervention requirements under section 25 of the NDIS Act. Ms Neal therefore does not meet the access criteria under section 21 of the NDIS Act and cannot be granted access to the scheme.
ISSUES
Access to the scheme requires Ms Neal to satisfy that she meets the ‘access criteria’ under section 21 of the NDIS Act. Section 21 of the NDIS Act provides as follows:
When a person meets the access criteria
(1) A person meets the access criteriaif:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
…………………………………………………………………………………………..
There was no contention by the Agency that Ms Neal did not meet the age requirements[4] or the residence requirements.[5]
[4] Subsection 21(1)(a) of the NDIS Act, A3 at [15].
[5] Subsection 21(1)(b) of the NDIS Act, A3 at [15].
The issue before the Tribunal was therefore whether Ms Neal meets the disability requirements under section 24 of the NDIS Act or the early intervention requirements under section 25 of the NDIS Act.
THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)
The disability requirements are contained in section 24 of the NDIS Act and provide as follows:
1. A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
2.For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.
3.For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
4.Subsection (3) does not limit subsection (2).
The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
The early intervention requirements contained in section 25 of the NDIS Act provide as follows:
1.A person meets the early intervention requirementsif:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory, or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)is a child who has developmentaldelay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or;
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
(d)the CEO is satisfied any early intervention supports that would be likely to benefit the person as mentioned in paragraphs (b) and (c) would be NDIS supports for the person.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
………………………………………………………………………………………..
Likewise, the requirements of section 25 of the NDIS Act are cumulative and all criteria must be met.
Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘the Access Rules’).
The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The relevant guidelines in this review are the NDIS – Applying to the NDIS Guidelines (‘the Access Guidelines’).[6]
[6] National Disability Insurance Agency, Applying to the NDIS (Web page, 16 July 2025) <
There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[7] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2),[8] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[9] where Mortimer J held:
Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus bring on the purpose and context of the statutory power, not the executive policy framed to guide it.[10]
[7] G v Minister for Home Affairs [2019] FCAFC 79 at [18].
[8] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577 at [590].
[9] G v Minister for Immigration and Border Protection [2018] FCA 1229.
[10] Ibid, at [171].
Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Ms Neal meets the disability requirements or the early interventions requirements.
Whether Ms Neal meets the disability requirements or the early intervention requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a ‘fact-finding task’[11] with a relatively high degree of precision and be positively satisfied.[12]
[11] National Disability Insurance Agency v Davis [2022] FCA 1002 at [42].
[12] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [55] cited in Re Schwass and National Disability Insurance Agency [2019] AATA 28 at [29]; National Disability Insurance Agency v Davis [2022] FCA 1002 at [61].
MS NEAL’S POSITION
Ms Neal seeks access to the scheme on the basis of having a disability due to the following:
(a)An intellectual impairment as a consequence of Systemic Lupus Erythematosus (Lupus) (or Sjogren’s Syndrome):
(b)A cognitive impairment as a consequence of Systemic Lupus Erythematosus (Lupus) (or Sjogren’s Syndrome)
(c)A neurological impairment as a consequence of Systemic Lupus Erythematosus (Lupus) (or Sjogren’s Syndrome)
(d)A sensory impairment as a consequence of Systemic Lupus Erythematosus (Lupus) (or Sjogren’s Syndrome)
(e)A physical impairment as a consequence of Systemic Lupus Erythematosus (Lupus) (or Sjogren’s Syndrome), Fibromyalgia and Chronic Fatigue Syndrome, and
(f)Psychological impairments which she contends are secondary to her physical conditions and as a consequence of depression.
Ms Neal contends that all of these impairments are permanent for the purposes of section 24(1)(b) of the NDIS Act.
As a consequence of these impairments Ms Neal also contends that she has a substantially reduced functional capacity in relation to her communication, social interaction, learning, mobility, self-care and self-management for the purposes of section 24(1)(c) of the NDIS Act.
Ms Neal also contends that her impairments affect her capacity for social and economic participation for the purposes of section 24(1)(d) of the NDIS Act. Also, that she is likely to require supports under the scheme for her lifetime for the purposes of section 24(1)(e) of the NDIS Act.
Finally, Ms Neal contends that she meets the early interventions requirement pursuant to section 25 of the NIDS Act.
THE AGENCY’S POSITION
For the purposes of section 24(1)(a) of the NDIS Act the Agency accepts that Ms Neal has a disability due to;
(a) physical impairments as a consequence of systemic lupus erythematosus (Lupus) (or Sjogren’s Syndrome), fibromyalgia and chronic fatigue syndrome with symptoms of chronic pain, muscle weakness, fatigue and mobility difficulties; and
(b) psychosocial impairments due to depression and anxiety with symptoms of low mood, anhedonia, difficulties with concentration, and sleep disturbance.[13]
[13] Exhibit 1 page 47.
The Agency does not accept that Ms Neal has a disability that is attributable to an intellectual, cognitive, neurological or sensory impairment for the purposes of section 24(1)(a) of the NDIS Act.
In respect of Ms Neal’s physical impairments, the Agency accepts these impairments are permanent for the purposes of subsection 24(1)(b) of the NDIS Act.[14]
[14] A3 at [20].
The Agency does not accept that Ms Neal’s psychosocial impairment is permanent or likely to be permanent for the purposes of subsection 24(1)(b) of the NDIS Act.
With regard to subsection 24(1)(c) of the NDIS Act the Agency contends that whilst Ms Neal’s impairments result in a reduced functional capacity in the activities of social interaction, self-care, self-management, learning, communication and mobility the evidence does not support a finding that she positively satisfies the threshold of a ‘substantially reduced functional capacity’.
With regard to subsection 24(1)(d) of the NDIS Act the Agency accepts that Ms Neal’s physical and psychosocial impairments affect her capacity for social and economic participation.
With regard to subsection 24(1)(e) of the NDIS Act the Agency contends that there is insufficient evidence to establish that Ms Neal is likely to require support under the scheme for her lifetime.
The Agency further contends that the evidence is insufficient to establish that the provision of ‘early intervention support’ is likely to benefit Ms Neal within the meaning of subsection 25(b) and (c) of the NDIS Act. Further that the supports requested by Ms Neal are more appropriately provided through another service system in accordance with subsection 25(3) of the NDIS Act.
THE EVIDENCE
I have considered all the written evidence filed with the Tribunal and provided in the joint bundle, the oral evidence provided at the hearing on 2, 3 and 4 and 16 June 2025, and the parties’ closing submissions. I will refer in my decision to some of the more salient aspects of the evidence. The fact however that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before the Tribunal into account in reaching my decision.
Evidence about Ms Neal
Ms Neal has the following diagnoses which the Agency accepts:
·systemic lupus erythematosus (Lupus) (or Sjogren’s Syndrome);
·fibromyalgia;
·chronic fatigue syndrome; and
·depression and anxiety.[15]
[15] T13, T16, Exhibit 1 - page 214 – 218.
Ms Neal provided detailed written evidence to the Tribunal.[16] In her written evidence some of her difficulties included the following:
[16] R22, C16, C22, C24, T 21.
· severe brain fog;
· inability to control body temperature and hyperhidrosis;
· anxiety;
· excessive fatigue;
· diarrhoea;
· constant severe pain;
· severe depression;
· severe anxiety particularly in social setting;
· food sensitivities;
· chemical sensitivities;
· photophobia - light sensitivity;
· noise sensitivity;
· forgetfulness and difficulties with concentration and problem solving/decision making;
· tinnitus and vertigo; and
· continence issues.
Ms Neal has difficulty walking around her house, with light housework, shopping and meal preparation. She states that these activities are planned and done in stages. She experiences pain with basic self-care activities and housework. Her grip strength is reduced which affects her ability for tasks which include opening jars[17] and carrying heavy items. She also has difficulty writing for longer than 10 -15 minutes.[18]
[17] Exhibit 1 page 102.
[18] C16.
Ms Neal is ‘unsteady ‘ with prolonged walking. She will use handrails to navigate stairs and escalators. Ms Neal drives but must take breaks from driving every 20 -30 minutes.[19]
[19] C16.
Ms Neal has a vegetable garden. Where possible she grows her own salad vegetables, herbs, some fruits and other vegetables in order to avoid inadvertent chemical intolerance or triggering ingredients in her food.[20]
[20] C16.
Over the years Ms Neal has experienced many serious side effects dues to prescription medication. She stated:
‘It’s not that I am anti-drugs, they just seem anti me. There is a difference.’
Ms Neal also provided oral evidence which can be summarised as follows:
· She has difficulty with her ‘recall’ and executive functioning;
· She is not good at switching tasks;
· She has had to learn to change that way that she does things;
· She has Aphantasia which is an inability to voluntarily form mental images in one's mind;
· She has prosopagnosia. This is also known as ‘face blindness’ whereby a person struggles to recognise familiar faces;
· She has constant pain and fatigue, with flu-like symptoms. Her pain is unpredictable and varies in intensity. She experiences pain in a variety of different places and she experiences regular ‘flare ups’;
· When she has ‘flare up’ there are ‘consequences’ for her which she explained are like post exertional malaise. This can take up to 48 hours to resolve and sometimes even longer;
· She is affected by brain fog;
· She has cranial instability;
· She has a lot of trigger points. At times she feels like her arteries and veins are on fire and will explode;
· Her symptoms are often amplified by lights and sounds. She will wear sunglasses where there are bright lights;
· She has costochondritis, a condition where the cartilage connecting the ribs to the sternum becomes inflamed, causing chest pain;
· She suffers from a lot of allergies;
· She has stopped socialising;
· She lives alone in a single level house which she has designed to be very low maintenance. She enjoys picking vegetables from her vegetable garden;
· She is university educated and has travelled extensively. In the past she has had significant and responsible roles in the constructions industry;
· She is currently employed in an administrative role which involves ‘computer work’, a ‘bit of filing’, sitting in on meetings and preparing reports. She has worked five days a week for the past 3 months as a ‘trial phase’ of return to work. She is able to work at home on some as part of her employment.
· She described working full time as ‘too much’ explaining that ‘everything else is falling by the way’. She would prefer to work on a part-time basis. In this regard she continues to search online for other employment options;
· Ms Neal explained that a part of her reason for returning to work was that ‘I was just going nuts sitting at home…’;
· She also explained ‘I really enjoy working’ and that working provides her with ‘a sense of accomplishing something’. When at work Ms Neal will take a large number of notes, explaining that this is because she cannot rely on her memory;
· Ms Neal has a driver’s licence and drives herself to work. She has a mattress in her car which she can lie down on during breaks, if needed;
· Ms Neal described the people she worked with as ‘nice people’ stating that ‘It's nice to finally be a part of the team again’;
· Ms Neal receives 2 hours each week of support from ‘SASH’[21] who provide assistance with a variety of tasks including vacuuming, changing bedding, washing bed linen, grocery shopping and chopping up food;
[21] Safe and Supported from Home – NSW Health
· She has set up the laundry in her home so it is easier for her to use. This includes the ability to sit at a bench to fold laundry and avoid the need to bend over. She is able to wash her own clothes, however at times she will get assistance from the workers at SASH;
· She privately funds a local gentleman for four hours each week to undertake heavier tasks including mowing, gardening, moving furniture, hosing pathways and assistance with her vegetable garden. She described this gentleman as being ‘good company’ and she will often spend time around him when he is at her home performing these paid tasks;
· She is able to get on and off the toilet. She has installed a toilet which is a ‘bit taller’. She also has a ‘ledge’ beside the toilet for assistance. There is a disability toilet at her workplace. She ‘sometimes’ uses a disability toilet in the community when she is having a flare up;
· She is able to shower herself daily but finds showering exhausting;
· She can dress and undress herself using a modified technique, often leaning on a tall dresser or a ladder;
· She estimates that she is ‘unproductive’ 15 days out of each month due to flare ups;
· She is able to shampoo her hair using a modified technique. She can also brush her own teeth;
· She is able to go to the supermarket which is located at the end of her street and buy small groceries;
· She will do ‘batch cooking’ and prepare multiple meals which are then frozen and used at a later stage. This is usually done on a monthly basis;
· She is able to grow enough vegetables in her vegetable garden ‘to feed one person most of the time’;
· She telephones her butcher to order meat which is subsequently delivered to her;
· She had a friend who lives in Sydney who she used to speak with on the telephone ‘every now and again’. In recent times she has lost contact with this friend;
· She is able to walk around her house however will ‘shuffle’ when she has a flare up. She does not rely on a walking stick;
· In terms of hobbies Ms Neal stated ‘I actually enjoy researching medical stuff’;
· She was diagnosed with depression in or about 2019. She has received treatment of approximately 8 sessions over several months from Ms Jocelyn Evans, a clinical psychologist. This treatment included two sessions cognitive behaviour therapy (CBT);
· In the past she has been prescribed duloxetine for her fibromyalgia and depression which she took for approximately 2 weeks. This medication was ceased in the context of nausea, diarrhoea, stomach irritation and other symptoms.[22] She has not trialled any other antidepressant medication;
· She has seen Dr Khan, a psychiatrist twice who has suggested other antidepressant medications. Ms Neal discussed these medications with Dr Prowse, her rheumatologist and her GP but decided not to go down ‘that pathway’ with preference to try ‘lifestyle adjustments’;
· Ms Neal emphasised that she was not ‘anti-medication’ rather, that historically her body was adversely affected by medications;
· Ms Neal would like to become a participant in the scheme so that she can receive funding for supports such as physiotherapy, assistance in her home, occupational therapy and various forms of assistive technology;[23]
[22] See also T22.
[23] Exhibit 1 – page 309- 310.
Under cross examination Ms Neal provided the following further evidence:
· Her current medications include an antihistamine, Nasonex, Claritin and Zyrtec eyedrops. She uses Panadol and Nurofen sparingly because they upset her stomach;
· She took hydroxychloroquine as an antimalarial drug a number of years when travelling. Hydroxychloroquine is also an antirheumatic drug and it was suggested as a treatment for her Lupus by Dr. Prowse, rheumatologist. Dr. Prowse provided her with a script for Hydroxychloroquine however her decision was not to treat her Lupus with Hydroxychloroquine;
· Ms Neal accepts that hydroxychloroquine is a recognised treatment for Lupus. Notwithstanding, due to the recognised side effect of suicidal ideation and her historical adverse reaction to this drug she does not wish to have a further trial of this medication for her Lupus;
· Her sensitivity to medications pre-dates her diagnosis of lupus;
· She currently receives treatment from Dr. Dawson who is a rheumatologist;
· She had chiropractic treatment in 2022 and physiotherapy treatment in 2024. Both treatments have made her neck worse;
· She considers that she developed depression as a result of her Lupus and explained that on ‘good days’ her depression is nowhere to be seen;
· At times she experiences ‘visual snow’[24] which she explained is related to her Lupus. Food intolerances have also been a big issue for her for many years. These have not been further investigated by a gastroenterologist. When she goes out to eat, she finds it difficult to find something suitable on the menu;
· In the past Ms Neal has also experienced vestibular symptoms. Ms Neal explained, ‘So I went through like a year of vestibular retraining, learning to get my balance through feeling through my feet and very physical around me, you know, starting to rely less on my vision for while we kind of got that sorted…So that was quite intensive’;
· The onset of her Aphantasia was approximately 2016;
· She enjoys the social interaction of working but does find working taxing and fatiguing. Ms Neal explained however that it was better to work than be isolated and that ‘there are definitely benefits of going to work’;
· When she is working from home she is less distracted, and has longer periods of concentration without many breaks. When she is working in the office she will take more breaks to walk around. Notwithstanding, she does struggle generally to concentrate and keep matters ‘straight’ in her mind.
[24] Exhibit 1 page 100.
Evidence of Ms Vanessa Neal
Ms Vanessa Neal is a relative of Ms Neal and has known Ms Neal for many years.
She gave evidence of Ms Neal enjoying a very active lifestyle prior to her diagnosis of Lupus. She described Ms Neal as previously being very ‘outgoing’ and ‘driven’. Since her diagnosis of Lupus, she has observed that Ms Neal’s quality of life has declined. She has also noticed a distinct ‘change’ in Ms Neal stating that Ms Neal was not the same person that she was 10 years ago.
In the last few years either she or her husband will call Ms Neal generally on a monthly basis. They also exchange text messages with Ms Neal. She and her husband also ‘catch up’ in person with Ms Neal several times during the year.
Evidence of Dr. Michael Prowse
Dr. Prowse is Ms Neal’s previous treating rheumatologist. He provided several reports to the Tribunal[25] in which he referred to the following matters:
·That Ms Neal has ‘probable mild end of the spectrum lupus’ and ‘a multitude of symptoms and immunology which albeit low in titre can’t be ignored. She also has features of neural sensitization characteristic of fibromyalgia.’
·Dr Prowse recommended a trial of duloxetine to try to damp down Ms Neal’s neural sensitization;
·Dr Prowse has discussed with Ms Neal the use of hydroxychloroquine for treatment of her Lupus and provided Ms Neal with a prescription for this medication.[26]
·In his correspondence dated 11 January 2023, Dr Prowse noted that Ms Neal referred to depression and having word-finding difficulties. He reported that Ms Neal was not keen on treatments for lupus, including hydroxychloroquine or low-dose prednisone. He stated that ‘depression appears to be playing a role with a number of her symptoms’;
·In his correspondence dated 22 June 2023 Dr Prowse stated that he felt Ms Neal’s dominant problem was fibromyalgia. He noted that Ms Neal has ‘a low mild end of the spectrum connective tissue disease with positive ANA and SSA antibodies’.
[25] C3, C4, C5, C6, C7.
[26] Exhibit page 212.
Evidence of Dr Khan
Dr Khan is a psychiatrist and reviewed Ms Neal via telehealth on 6 July 2023. He provided a report to the Tribunal.[27] During this review Dr Khan discussed the role of antidepressant for the management of Ms Neal’s mood symptoms. He suggested three different antidepressants: venlafaxine, Agomelatine and Vortioxetine, stating the Ms Neal ‘was not keen due to medication sensitivity, at this stage.’ Dr Khan also discussed the use of an ultra-low dose of naltrexone, however Ms Neal declined this medication.
[27] T13.
Dr Khan did not agree with a diagnosis of ASHD because of an absence of symptomology in childhood.
Vineland Adaptive Behaviour Scales -3
Ms Neal was assessed using the Vineland Adaptive Behaviour Scales (Vineland – 3) assessment in June 2023. This assessment concluded that Ms Neal’s communication skills were ‘moderately low. It also concluded that her daily living skills, social skills and relationships and were ‘adequate’. Ms Neal’s overall summary score for her adaptive behaviours was ‘adequate.[28]
[28] T8.
Ms Jocelyn Evans
Ms Evans is a psychologist and provided a report to the Tribunal[29] in which she referred to 8 sessions of treatment with Ms Neal and stated,
‘During her treatment with this practice, Tammy received the evidence based psychological intervention for Adjustment Disorder with anxiety and depressive features, having trialled psychiatric medications prior. Despite engagement with this intervention the ongoing and pervasive nature of her physical health concern limited her ability to enact strategies provided and she continued to be severely functionally impacted in social, recreation and vocational domains. Psychological intervention as per the evidence base and which she has attended in this practice remains the only recommended treatment option.’
[29] T12, Exhibit 1 page 329.
Evidence of Dr D’Abrera
Dr. D’Abrera is a psychiatrist and provided two reports to the Tribunal following an ‘on the papers assessment’. [30] Dr. D’Abrera did not assess Ms Neal in person. In his report Dr. D’Abrera referred to the following:
[30] D6, D7.
· Ms Neal has been prescribed sertraline but chose not to take this medication;
· She had taken duloxetine by discontinued this medication after 2 weeks;
· He described Ms Neal as a ‘very complex picture’ with a plethora of symptoms across all bodily systems which she reports as stemming from a viral infection in 2016;
· His opinion was that there appeared to be evidence of somatisation and medically unexplained symptoms, including ‘visual snow’, tinnitus, tachycardia, brain fog, food sensitivities, fatigue, and muscle pain;
· Ms Neal satisfies the DSM-5 criteria for major depressive disorder. Ms Neal also has anxiety;
· Dr. D’Abrera stated,
‘She reports an array of physical symptoms. There is some evidence of somatisation, although I cannot definitively diagnose DSM-5 somatic symptom disorder (or somatisation disorder in DSM-IV) based on the history provided. Somatisation remains a differential diagnosis, however.’
‘Untreated major depressive disorder can cause subjective cognitive impairment (depressive pseudodementia) and somatic symptoms (particularly involving the gastroenterological and neurological systems) and can overlap with somatic symptom disorders.’
· Dr. D’Abrera made the following recommendation in respect of Ms Neal,
I believe that Ms Neal would benefit from robust treatment of her depression, which could include a trial of a different antidepressant medication from a different class, e.g. venlafaxine or agomelatine. She needs regular and structured psychological therapy.
· In making this recommendation Dr D’Abrera’s opinion was that 8 sessions of treatment from psychologist Jocelyn Evans was clearly inadequate to address Ms Neal’s psychological symptoms;
· Dr. D’Abrera disagreed with Ms Evan’s diagnosis of adjustment disorder with anxiety and depressive features. In this regard he stated, ‘She clearly meets the DSM-5 criteria for major depressive disorder.’[31]
· Regarding treatment of Ms Neal’s major depression disorder Dr D’Abrera stated,
‘I am not convinced that Ms Neal has undergone an adequate trial of antidepressant therapy. She has opted not to take the prescribed sertraline, nor has she trialled the antidepressants recommended by her psychiatrist including agomelatine, vortioxetine and venlafaxine. I note that she briefly took duloxetine but discontinued it due to reported side effects and withdrawals. The latter symptom would be unlikely after such a short trial of this medication.’
[31] D4.
Dr. D’Abrera also provided oral evidence at the hearing which can be summarised as follows:
His opinion is that Ms Neal’s symptoms are consistent with untreated major depressive disorder with anxiety. He stated,
‘And certainly the psychiatrist that you saw and the other medical specialists that you saw almost unanimously came to the conclusion, largely independent of one another, that you had persuasive symptoms of major depressive disorder, including low mood, suicidality, worthlessness, feelings of emptiness, and anhedonia, which is a loss of interest in pleasurable activities.’
There is a bi-directional relationship between depression and autoimmune conditions and fibromyalgia. Dr. D’Abrera explained,
‘So in patients with autoimmune conditions and fibromyalgia and major depression, the symptoms of the medical conditions can cause or worsen depressive symptoms and depression can worsen the experience of the physical disorders, meaning that meaning that one influences the other in a bi-directional relationship.’
Most antidepressant medication can be associated with a broad range of side effects which are usually ‘self-limiting’ and occur in the initial stages of their administration. A common side effect is gastrointestinal complaints, including nausea and headaches;
Dr. D’Abrera confirmed somatisation disorder as his differential diagnosis for Ms Neal and this warranted further investigation and review. Dr. D’Abrera stated that it was clear Ms Neal had an auto immune condition which produced physical symptoms. Notwithstanding, he considered it possible that some of Ms Neal’s other physical symptoms or somatic symptoms were related to her psychological distress;
He explained that the experience of chronic pain can be worsened by depression and vice versa. This is in the context of the body and the mind having a uniquely intertwined relationship;
His opinion remains that Ms Neal requires assertive treatment with an adequate trial of an adequate dose of antidepressant medication. She also requires an adequate course of psychotherapy. In relation to Ms Neal’s chronic cognitive difficulties, brain fog and difficulties sustaining attention and concentration Dr. D’Abrera recommended cognitive testing. Dr. D’Abrera stated,
‘A neuropsychological assessment and objective neuropsychological assessment will give the best answers as to the degree of impairment and which domains those impairments lie in.’
Dr. D’Abrera strongly agreed with Dr. Khan in respect of trialling other antidepressant medications and explained that in 2025 there are many antidepressant choices ‘which have different side effect profiles and different tolerability profiles and can be tailored to the person regardless of whether they have other chronic medical conditions, including autoimmune conditions and including treatment with steroidal and non-steroidal anti-inflammatories.’
Dr D’Abrera stated that whilst it was difficult to predict the outcome of other prescription antidepressant treatment, he viewed this ‘course of treatment with some therapeutic optimism and success.’
Dr D’Abrera further stated , ‘… I can see no reason why with a good pharmacological treatment and with an appropriate course of therapy with a good therapist, I do not see any reason why there should not be significant improvements in her mood and in her functioning.’
Evidence of Jessica Harper
Ms Harper is an occupational therapist. She conducted an assessment of Ms Neal on 10 May 2024 and provided two reports to the Tribunal.[32] Ms Harper’s assessment concluded the following opinions:
[32] D2, D4.
·Ms Neal is independent in the domains of communication, social interaction, learning and self-management;
·Ms Neal’s independence in the domain of mobility would be maximised with the provision of assistive technology;
·Ms Neal’s independence in the domain of self-care would be maximised with the provision of commercial assistance for heavy house cleaning and gardening tasks also items of assistive technology;
·Ms Harper recommended the following assistive technology: shower chair, grabrails besides toilet, long handled washer, sponge and toe washer, dressing stick, perching stool, lightweight dustpan and brush and lightweight stick vacuum cleaner.
·Ms Harper acknowledged in her report that Ms Neal had ‘good days’ and ‘bad days’ and, that on the day of the assessment she was having a ‘good day’, having taken prednisone medication prior to the assessment to manage her pain.
·On ‘bad days’ she referred to Ms Neal being able to manage generally her personal cares including toileting, showering and dressing. On these days Ms Neal will watch movies and rest with an aim to move every hour to manage pain;
·On good days Ms Neal continues with pain, albeit to a lesser degree, but is able to complete domestic cleaning, do bulk meal preparation and freeze meals, access the community for grocery shopping, car washing and also attend medical appointments. She is also able to socialise for example and have a coffee with her neighbours approximately every 2-3 weeks;
·Ms Harper also referred to what Ms Neal is able to do on a ‘typical day’, some of which included the following tasks:
–Making herself coffee;
–Water plants;
–Put on laundry;
–Tidy dishes;
–Attend occasional appointments such as physiotherapy; and
–Shower in the evening.
·Ms Harper referred also to the support Ms Neal currently received from ‘Safe and Support at Home’ (‘SASH’). She stated,
The role of the Safe and Supported at Home (SASH) package is to support clients with functional impairment/s who are in the process of applying for the National Disability Insurance Scheme (NDIS) or have been deemed ineligible for this scheme. SASH packages are available for patients being discharged from hospital who may be at risk of an avoidable admission. They are also available to people who are accessing local health district community health or out-patient services. SASH packages are available for 6 weeks but can be repeated depending on the assessed needs of the patient.
Evidence of Dr Dawson
Dr Dawson is Ms Neal’s current treating Rheumatologist. She has been treating Ms Neal since March 2024. Dr Dawson provided a report to the Tribunal[33] as well as oral evidence. Dr Dawson confirmed in her evidence an established diagnosis of Lupus and stated,
Given my assessment of Ms Neal involving her medical history/ physical exam findings and reviewing her laboratory and radiologic investigations results I think it very reasonable to say she has Sjogren's syndrome, fibromyalgia, and osteoarthritis. The term 'chronic fatigue syndrome' could be used to overlap with fibromyalgia.
[33] Exhibit 1 page 286.
Dr Dawson stated that she had discussed a trial of hydroxychloroquine medication with Ms Neal on several occasions.
She considers is reasonable that Ms Neal would have developed depression and that her mood would have been affected by her Lupus condition.
Dr Dawson explained that it difficult to ascertain what are Ms Neal’s physical symptoms and what are Ms Neal’s somatic symptoms. Notwithstanding, it is her opinion that Ms Neal does have somatic symptoms. She considers some of her somatic symptoms might include her aches and pains, fatigue, tenderness to touch and brain fog.
Dr Dawson discussed with Ms Neal her return to work in 2025. Her opinion was that a return to work is a good idea for Ms Neal. She is unsure whether Ms Neal’s current job, including her level of work is sustainable, as it was ‘early days’;
Dr Dawson referred to the differences in the symptoms of Sjogren’s syndrome and Lupus. Based on Ms Neal’s autoimmune serology she considers Ms Neal as having Sjogren’s syndrome. Dr Dawson did explain however that the difference in diagnosis was simply an ‘academic point’. Her opinion was, that in any event, Ms Neal did not have a severe manifestation of this condition.
Dr Dawson also confirmed a diagnosis of fibromyalgia. She also stated that food intolerances were not a symptom of Sjogren’s or Lupus. Also, that Ms Neal’s ‘cranial instability’ was also not related to Sjogren’s or Lupus.
SECTION 24: THE DISABILITY REQUIREMENTS.
Subsection 24(1)(a) of the NDIS Act?
Does Ms Neal have a disability which is attributable one or more intellectual, cognitive, neurological, sensory or physical impairments?
Does Ms Neal have one or more impairments to which a psychosocial disability is attributable ?
Ms Neal has been diagnosed with major depression disorder, Lupus (or Sjogren’s Syndrome), fibromyalgia and chronic fatigue syndrome. (‘the conditions’)
The evidence overwhelming establishes that Ms Neal has a psychosocial impairment as a consequence of her major depression disorder with an additional feature of anxiety. As a result of her major depressive disorder Ms Neal experiences low mood, anhedonia, difficulties with concentration, and sleep disturbances. The Agency accepts also that Ms Neal’s symptom of brain fog might likely be associated with her depression.
The evidence also overwhelming establishes that Ms Neal has physical impairments as a consequence of Lupus (or Sjogren’s Syndrome), fibromyalgia and chronic fatigue syndrome. As a result of these further conditions Ms Neal experiences chronic pain, muscle weakness, fatigue and mobility difficulties.
The Agency accepts that Ms Neal has a disability that is attributable to a psychosocial impairment and a physical impairment due to these conditions. Based on the evidence I am satisfied that this is a reasonable and proper concession.
The evidence however does not support a conclusion whereby I can be positively satisfied that Ms Neal has a disability which is attributable to either an intellectual, cognitive, neurological or sensory impairment. My considerations are as follows:
· I acknowledge and accept that Ms Neal experiences a wide range of symptoms some of which include brain fog, light and noise sensitivity, visual snow, food and medication sensitivity;
· D’Abrera refers to somatisation disorder as a differential diagnosis in respect of a possible cause for these symptoms and suggests further investigation;
· Dr. D’Abrera refers also to Ms Neal’s cognitive ‘difficulties’ and suggests a cognitive assessment be undertaken;
· There has been no investigation of somatisation disorder as a differential diagnosis or a cognitive assessment;
· Likewise, there is no evidence before the Tribunal from a suitably qualified medical practitioner or allied health profession, or results of formal IQ testing which support Ms Neal’s contention that she has an intellectually impairment as she contends.
Conclusion
I am satisfied that Ms Neal has a disability that is attributable to a psychosocial impairment due to major depressive disorder.
I am also satisfied that Ms Neal has a disability that is attributable to physical impairments as a consequence of Lupus (or Sjogren’s Syndrome), fibromyalgia and chronic fatigue syndrome.
Subsection 24(1)(a) of the NDIS Act is satisfied.
The fact that I do not accept that Ms Neal has a disability due to either an intellectual, cognitive, neurological or sensory impairment for the purposes of subsection 24(1)(a) of the NDIS is relevant to this application. This on the basis of the cumulative operation of section 24(1) of the NDIS Act and Ms Neal’s failure to satisfy subsection 24(1)(c) of the NDIS Act which I will subsequently refer to.
Subsection 24(1)(c): Do Ms Neal’s impairments result in a ‘substantially reduced functional capacity’ for her to engage in the activities of communication, social interaction, learning, mobility, self-care and self-management?
The Tribunals task is therefore to consider whether Ms Neal’s functional capacity to undertake communication, social interaction, learning, mobility, self-care and self-management is ‘substantially reduced’. This task is twofold.
The ‘first task’ is to consider whether Ms Neal’s circumstances are captured within the deeming effect of rule 5.8 of the Access Rules. In circumstances where the deeming effect of rule 5.8 is not enlivened, the Tribunal must still proceed to a ‘second task’. This second task requires the Tribunal, on the evidence available, to determine whether Ms Neal’s functional capacity for the activities in subsection 24(1)(c) of the NDIS Act is ‘substantially reduced’.
Can Ms Neal rely on the deeming effect of rule 5.8 of the Access Rules to establish that she has a substantially reduced functional capacity
Rule 5.8 of the Access Rules provides as follows:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
(Tribunal emphasis added)
Rule 5.8(a) of the Access Rules requires the Tribunal to assess whether Ms Neal can participate ‘effectively or completely’ on the basis that she is unaided by assistive technology, equipment or home modifications other than ‘commonly used items’.
The interpretation of ‘commonly used items’ was considered by the Tribunal in Rooney and National Disability Insurance Agency (‘Rooney’).[34] In Rooney the Tribunal identified the indicia in respect of what are to be considered ‘commonly used items’ for the purpose of rule 5.8(a) of the Access Rules. This indicium included items which are:
·generally accessible;
·can be used without the need for complex or specialised customisation or installation;
·relatively simple to use; and
·relatively inexpensive.
[34] Rooney and National Disability Insurance Agency [2021] AATA 3523.
Ms Neal’s evidence is that on occasions in the past she has used a walking stick however that she does not usually rely on a walking stick when either at home in the community. Ms Neal evidence is also that she has designed her home so that it is user friendly and so that she can manage difficulties she experiences due to pain and her mobility. These measures include living in a single-story home, a ledge near her toilet, a laundry that is accessible and a vegetable garden that is at an accessible height.
Ms Harper suggests various assistive technology which may assist Ms Neal with her mobility and self-cares. These include a shower chair, grabrails besides toilet, long handled washer, sponge and toe washer, dressing stick, perching stool, lightweight dustpan and brush and lightweight stick vacuum cleaner.
I am satisfied that Ms Neal cannot rely upon the deeming operation of Rule 5.8 of the NDIS Rules. This is on the basis that she does not currently rely on any assistive technology, complex building modifications or equipment to undertake tasks that form the relevant activities under subsection 24(1)(c) of the NDIS Act. My considerations are as follows:
Ms Neal resides in a single level home, a choice that is not uncommon for many members of the public for a variety of reasons.
She has a ledge next to her toilet to assist her with toilet transfers, she sometimes leans against a dresser or a ladder to dress herself. These measures are not uncommon or extraordinary.
The items of assistive technology suggested by Ms Harper fall within a category of ‘commonly used items’ for the purposes of Rule 5.8(a) of the NDIS Rules.
There is no evidence that Ms Neal requires assistance (including physical assistance, guidance, supervision or prompting) from others to undertake tasks that form the relevant activities under subsection 24(1)(c) of the NDIS Act.
Conclusion
Ms Neal cannot rely on the deeming operation of rule 5.8 of the Access Rules to satisfy subsection 24(1)(c) of the NDIS Act.
The second task: Does Ms Neal have a ‘substantially’ reduced functional capacity in respect of the activities in subsection 24(1)(c) of the NDIS Act?
The fact that Ms Neal does not satisfy the requirements of rule 5.8 does not disqualify her from satisfying subsection 24(1)(c) of the NDIS Act. The measure of whether Ms Neal has a ‘substantially reduced functional capacity’ for one or a number of activities in subsection 24(1)(c) is not exhaustively defined by rule 5.8. In Mulligan Mortimer J held: [35]
As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.
[35] Mulligan at [77].
In respect of the operation of subsection 24(1)(c) of the NDIS Act itself, in Mulligan Mortimer J also held:[36]
Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
------
... No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do.
[36] Ibid, at [55]–[56].
In Foster the Full Court also considered the interpretation of subsection 24(1)(c) of the NDIS Act. The following observation was made in relation to the activity of self-care:[37]
In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of ‘self-care’, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.
[37] Foster at [64]–[65].
Further, that undertaking a task differently or more slowly to others will not necessarily mean a person cannot participate effectively or complete in an activity.[38]
[38] Foster at [67].
In Madelaine[39] the Tribunal referred to the following Operational Guideline for guidance in relation to fluctuations in a prospective participant’s functional capacity,
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.
[39] Madelaine v NDIS at [55]
Those Operational Guidelines have been superseded. The current Access guidelines however provide as follows:
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.
Therefore in determining Ms Neal’s functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act the following is relevant to the Tribunals consideration:
The severity of Ms Neal’s impairment having regard not only to the evidence of Ms Neal but also medical and clinical evidence; and
Ms Neal’s overall ability to perform the ‘activities’ in subsection 24(1) (c ) of the NDIS Act over time and taking into account fluctuations in her ability. This involves a practical assessment of what she can do and cannot do. Consideration of Ms Neal’s ability ‘over time’ requires taking into account her abilities on the good days, on the bad days and on the days in between.
The following however is not relevant to the Tribunal’s consideration in determining Ms Neal’s functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act:
The fact that Ms Neal is no longer able to perform the activities in subsection 24(1)(c ) of the NDIS Act as often, as freely or as easily as she did prior to the onset of her illness; and
How much better Ms Neal’s life would be if were to receive supports under the scheme.
The Tribunal must undertake, with a high degree of precision, a functional, practical assessment of what Ms Neal can and cannot do with respect to her communication, social interaction, learning, mobility, self-care and self-management for the purposes of subsection 24(1)(c). This assessment requires consideration of the ‘bundle of tasks’ and actions that comprise any given activity being considered.[40]
[40] Ibid.
Previously in the decision of Garcia Albiol v NDIA[41] I considered the use of the word ‘substantially’ as a descriptor of ‘reduced functional capacity’ in subsection 24(1)(c) of the NDIS Act. In doing so I determined that the term ‘substantially’ in the context of reduced functional capacity carries a ‘high threshold’. That decision has not been appealed and has in fact been adopted in this Tribunal.[42]
[41] Garcia Albiol v NDIA [2024] AATA 496.
[42] Moxham v CEO,NDIA [2025] ARTA 290; Foster v NDIA [2025] ARTA 718; TZQP v CEO,NDIA [2025] ARTA 839; Coffey v CEO,NDIA [2025] ARTA 634; Burrows v CEO,NDIA [2025] ARTA 607; BFYK v NDIA [2025] ARTA 1006; KNNW v NDIA [2025] ARTA 1033; Foster v NDIA [2025] ARTA 718
My view of a ‘high threshold’ for reduced functional capacity remains unchanged.
The Tribunal’s consideration of Ms Neal’s functional capacity relates specifically to her ‘daily life activities’. Relevantly, the Access Guidelines state as follows:
You may be eligible under the disability requirements if you have one or more impairments that are likely to be permanent and this substantially impacts your ability to do daily life activities.
…………….
Your impairment means you have a substantially reduced functional capacity to do one or more daily life activities. These activities include moving around, communicating, socialising, learning, undertaking self-care, or self-management tasks.
Communication
The Operational Guidelines describe communication as follows:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
Ms Neal’s NDIS application for access form was completed by Ms Kate Toholka, occupational therapist. Ms Toholka stated that Ms Neal did not require any assistance to communicate.[43] Likewise Ms Harper’s opinion was that Ms Neal is independent in the domain of communication.[44]
[43] T10.
[44] D2.
At the hearing Ms Neal gave oral evidence in relation to her health conditions and symptoms, also her attendances with various doctors and health professionals over many years. She was able to explain her history illness, various treatments and therapies including outcomes. She was also able to recall and give evidence in relation to various consultations with various medical practitioners.
At the hearing Ms Neal also responded to cross examination, examined her own witnesses (Ms Vanessa Neal and Dr Dawson) and cross-examined Ms Harper. The hearing took place over four days and on the final day of hearing Ms Neal also provided oral closing submissions.
Throughout the hearing process Ms Neal was independent with her verbal communication. She was also able to express her views, thought and needs.
Ms Neal also provided detailed written evidence. This included a response in relation to the Agency’s statement of facts issues and contentions.[45] In addition, Ms Neal provided other documentary evidence[46] which contained details of the impact of her health conditions upon her daily living, a statement of her lived experience, the history of a variety of prescribed medications and details of the side effects that she has experienced. I am satisfied that Ms Neal has a high level of written communication skills.
[45] A2.
[46] T22, C9 C11, C16,C22.
Ms Neal gave evidence that she is able to telephone and speak to her butcher and place an order. She also enjoys communicating with the gentlemen who attends at her home each week to assist with heavier tasks.
Ms Neal works and is able to engage in communication with her work colleagues. She performs administrative work which involves using a computer and includes preparing reports.
Ms Neal is able to communicate with Ms Vanessa Neal and her husband by telephone, text and face-to-face several times each year.
In Madelaine v National Disability Insurance Agency (‘Madelaine’) the Tribunal considered ‘communication functionally’ in respect of an earlier (and not dissimilar) version of the Agency’s Operational Guidelines.[47] In Madelaine the Tribunal described communication functionality to be of 'a fairly basic kind: telling a family member about something that has happened, explaining to a doctor in what part of the body pain is experienced, asking for help to reach something and so on’. (Tribunal emphasis)
[47] Madelaine v National Disability Insurance Agency [2020] AATA 4025 at [79].
I am satisfied that Ms Neal reaches this level of functionality and beyond. Ms Neal is able to engage in oral communication, even on bad days. She is able to prepare and formulate written communications, including over time. She is also able to use technology such as a computer and a telephone to undertake communication. She is able to attend medical and allied health appointments and explain her concerns.
Respectfully, Ms Neal does not appreciate that the satisfaction of the threshold for a ‘substantially reduced functional capacity’ for communication equates to a level of capacity which is significantly lower than the high capacity for communication that she once enjoyed. It is also significantly lower than her current capacity for communication. The fact that there has been some decline in her capacity for communication does not establish that she meets this threshold.
Conclusion
I am satisfied based on the evidence that Ms Neal’s functional capacity to communicate, is not substantially reduced.
Social interaction
The Operational Guidelines describe social interaction as follows:
Socialising – how you make and keep friends or interact with the community…We also look at your behaviour, and how you cope with feelings and emotions in social situations.
In Madelaine the Tribunal held, ‘The criteria referred to in the Guideline are directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills.’[48]
[48] Madelaine at [87].
In Kilgallin and NDIA the Tribunal observed the following in relation to the threshold requirements for social interaction:[49]
Social interaction as referred to in 24(1)(c)(ii) doesn’t, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community.
[49] Kilgallin and NDIA [2017] AATA 186 at [18].
I am satisfied that Ms Neal has the personal skills to undertake social interaction and also that she enjoys social interaction.
Ms Neal enjoys her work and the social interaction that a work environment provides. She describes the people that she works with as ‘nice people’. She gave evidence that as a part of her reason for trialling a ‘return to work’ was in the context of ‘going nuts’ at home. She also stated that she enjoyed being a part of a team. Ms Neal dislikes isolation.
Ms Neal speaks on the telephone on a monthly basis with Ms Vanessa Neal and also her husband. This also includes the exchange of text messages. Ms Neal has face-to-face interactions with Ms Vanessa Neal and her husband approximately 4 times each year.
Ms Neal enjoys interacting with the gentleman who attends at her home each week for 4 hours to undertake the heavier tasks around her home. Ms Neal gave evidence also of another friend associated with the tennis club. She will on occasions speak with her neighbours.
I accept that prior to the onset of her illness Ms Neal led an active social life, had many friends and was a highly sociable person.[50] I accept that as a consequence of her impairments Ms Neal is no longer able to engage in social activities to the same degree and in the same way as she has previously done so in the past. Notwithstanding, I am satisfied that despite a substantial reduction in her opportunities for social interaction Ms Neal does still have the personal skills needed for social interaction.
[50] D2
As stated in Madelaine the activity of social interaction focuses upon the skills to interact and not the opportunities for interactions. I am therefore satisfied that whilst Ms Neal no longer has the ability or opportunity to socialise in the same environments as compared to when she was able to lead a more active lifestyle, she does still have the personal skills to interact with others albeit in other different environments. Furthermore, that over time and taking into account her good days and bads Ms Neal’s capacity to participate in the activity of socialisation is not reduced to the level required for the threshold of a ‘substantially reduced functional capacity’ under the scheme.
Conclusion
I am satisfied based on the evidence that Ms Neal’s functional capacity to interact socially is not substantially reduced.
I also refer to my commentary at [100] which applies also in relation to the activity of social interaction.
Learning
The Operational Guidelines describe learning as follows:
Learning – how you learn, understand and remember new things, and practise and use new skills
Ms Neal explained in detail and throughout her evidence her difficulties with brain fog, memory, concentration, recall and fatigue. Also that nowadays, at work, she has adopted a practice of taking notes to assist her memory.
Ms Neal’s evidence included information regarding her tertiary education and qualifications, also her professional roles and responsibilities prior to the onset of illness. I accept that Ms Neal is highly educated and has a high intellect.
Ms Neal also gave evidence that she really enjoyed researching medical literature and other information. In her evidence she was able to speak to her research in relation to her health conditions also the side effects of various medications. I am satisfied that Ms Neal has the ability to undertake research in relation to complex medical conditions on an ongoing basis, absorb this information to the extent of her being able to explain her findings to the Tribunal.
Ms Harper assessed Ms Neal as being independent in the domain of learning,[51] notwithstanding having intermittent difficulties sustaining concentration and attention during episodes of fatigue and weakness. She noted that Ms Neal used diaries, calendars and alerts on her phone to assist with remember in appointments. Ms Neal also uses lists to assist with shopping.
[51] D2.
In Madelaine the activity of learning was explained as having the cognitive capacity to absorb and apply new skills. Furthermore, that the activity of learning should not be confused with higher order issues.[52]
[52] Ibid 93 and 95.
I am satisfied based on the evidence that Ms Neal’s functional capacity to participate in the tasks comprised of the activity of learning is not substantially reduced.
Dr D’Abrera identifies that Ms Neal cognitive ability is yet to be formally tested. He recommends cognitive testing in order to address Ms Neal cognitive ‘difficulties’ and identify any degree of impairment. Such an assessment is not before the Tribunal and therefore I am not persuaded to form a view contrary to that expressed in [118].
Conclusion
I am satisfied based on the evidence that Ms Neal’s functional capacity for learning is not substantially reduced.
I also refer to my commentary at [100] which applies also in relation to the activity of learning.
Mobility
The Operational Guidelines describe mobility as follows:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of a bed or a chair. We consider how you get out and about and use your arms or legs.
In Madelaine the Tribunal held that the threshold requirements to achieve functional capacity with respect to mobility are ‘relatively modest’ stating that:[53]
A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking, a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as moveable, not fixed, free to move.
The use of the phrase move around … to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.
No particular distance is specified in the Guideline as defining this level of mobility, but it seems reasonable to suggest that a person who can travel 50 m by herself has the capacity to do the things referred to in the Guideline.
[53] Madelaine at [104]–[105].
Ms Neal is able to mobilise around her home, in the community and including at work. On a good day she is able to mobilise around her home and access the community. On a bad day she will not access the community and limit her mobility around the home to short distances at a slower pace often ‘shuffling’. On a bad day she will also ensure that she walks around her home at intervals to help manage her symptoms of pain.
Ms Neal has a driver’s licence and is able to drive a motor vehicle on a good day. She is able to get in and out of a motor vehicle.
On a good day she can walk to the supermarket at the end of her street. She can mobilise around a supermarket and purchase a small volume of groceries and return to her home with these groceries. On bad days she does access the supermarket and also does not attempt to carry heavy items in order to avoid the risk of exacerbating her symptoms.
She can dress and shower herself, albeit with a modified technique and at a slower pace. She can complete toilet transfers with the assistance of a ledge near her toilet. She can also complete chair and bed transfers independently, albeit at a slower pace and using a modified technique.
She can access her garden and her vegetable garden, including to pick vegetables that she has grown.
She can attend to laundry tasks, including folding. She can manage vacuuming her home once a week.
She can prepare meals for herself and make herself a cup of coffee in the mornings.
She can work, however would prefer to do so on a part-time basis.
Conclusion
Taking into account Ms Neal’s good days, bad days and the days ‘in between’ I am satisfied based on the evidence that Ms Neal’s functional capacity to participate in the tasks comprised of the activity of mobility is not substantially reduced.
I also refer to my commentary at [100] which applies also in relation to the activity of mobilisation.
Self-care
The Operational Guidelines describe self-care as follows:
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
Ms Neal is able to wash her own hands and toilet and shower herself. She can brush her teeth, shampoo her hair, dress and undress herself using a modified technique and at a slower pace especially on bad days.
She is able to prepare meals and does so diligently on good days when she feels capable of preparing multiple meals for freezing and use later on.
She is able to brush her own hair and manage her fingernails. She manages her toenail by cutting them on her good days.
She is able to wash her own clothes. She does this on good days and will avoid heavy laundry tasks on bad days.
She is highly aware of food and medication sensitivities. She manages these sensitivities carefully in order to avoid adverse outcomes.
She is able to make and attend medical appointments independently.
She can manage cutlery and feed herself. She can hold a cup and drink fluids independently.
Conclusion
I am satisfied based on the evidence that Ms Neal’s functional capacity to participate in the tasks comprised of the activity of self-care is not substantially reduced.
I also refer to my commentary at [100] which applies also in relation to the activity of self-care.
Self-Management
The Operational Guidelines describe self-management as follows;
Self-management – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-today tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Ms Neal gave evidence that she manages her own bills and has set up automatic payment for most of her bills. She is able to order meat from her butcher and prepare shopping lists. She is able prepare bulk meals which are frozen for later consumption.
She can manage her own medical and allied health appointments.
She is able to search for employment opportunities on the internet;
She manages her own complex food intolerances which includes a level of planning in relation to her vegetable garden and what is grown.
She is able to use calendars, diaries and alarms to assist with the management of her daily, weekly and monthly task and appointments.
Conclusion
I am satisfied based on the evidence that Ms Neal’s functional capacity to participate in the tasks comprised of the activity of self-management is not substantially reduced.
I also refer to my commentary at [100] which applies also in relation to the activity of self-management.
Conclusion – subsection 24(1)(c) of the NDIS Act
Subsection 24(1)(c) of the NDIS Act is not satisfied.
Having determined that subsection 24(1)(c) of the NDIS Act is not satisfied I am not required to consider the remaining criteria under subsection 24(1) of the NDIS Act.
Section 25 NDIS Act: The Early Intervention Requirements
Ms Neal contends as a broad submission that she satisfies the early intervention requirements of section 25 of the NDIS Act.
156. The Agency contends that the evidence is insufficient to establish that the
provision of ‘early intervention support’ is likely to benefit Ms Neal within the meaning of subsections 25(b) and (c) of the NDIS Act.
I accept the Agency’s submission.
There is no evidence before the Tribunal to suggest that the provision of early intervention supports would alter the outcome for Ms Neal by reducing her future need for supports in relation to her disability. Ms Neal’s evidence is that she seeks physiotherapy, assistance in her home, occupational therapy, and various forms of assistive technology to assist her. There is also no evidence that suggests that the supports sought by Ms Neal are early intervention in nature and are likely to reduce her future support needs.
On this basis I am not satisfied that that the provision of early intervention supports for Ms Neal is likely to reduce her future needs for support for the purposes of subsection 25(1)(b) of the NDIS Act.
As stated, the early intervention requirements in section 25 of the NDIS Act are cumulative. Having determined that subsection 25(1)(b) of the NDIS Act is not satisfied I am not required to consider the remaining criteria under subsection 25(1) of the NDIS Act.
CONCLUSION
Having failed to meet the mandatory criteria in relation to both the disability requirements and the early intervention requirements Ms Neal will not be granted access to the scheme.
Decision
The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2025 (Cth).
1. I certify that the preceding 162 (one hundred and sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.
………………………….
Associate
Date(s) of hearing: 2, 3, 4, 16 June 2025 Applicant: Ms Tammy Neal Solicitors for the Respondent: Maddox Lawyers Counsel for the Respondent: Ms Aditi Rao 21 July 2025
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