NVRY and National Disability Insurance Agency

[2023] AATA 1019

NVRY and National Disability Insurance Agency [2023] AATA 1019 (4 May 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2020/2697

Re:NVRY  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member D. Connolly

Date:4 May 2023

Place:Sydney

The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

.....................................[SGD]...................................

Senior Member D. Connolly

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access criteria – disability requirements – fibromyalgia – whether there is substantially reduced functional capacity – decision affirmed  

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

FBJV and National Disability Insurance Agency [2021] AATA 913

Madelaine and National Disability Insurance Agency [2020] AATA 4025
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Mulligan v National Disability Insurance Agency [2015] FCA 544
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Re Schwass and National Disability Insurance Agency [2019] AATA 28

SECONDARY MATERIALS

National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) < FOR DECISION

Senior Member D. Connolly

4 May 2023

BACKGROUND TO REVIEW

1. The Applicant, aged 49, seeks review of a decision made by the National Disability Insurance Agency (the Respondent) which affirmed an earlier decision to refuse her request for access to the National Disability Insurance Scheme (the NDIS) under provisions of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).

2. The Applicant was born in the United Kingdom (the UK). She migrated to Australia in 2010 with her husband and four children, all of whom are now adults.[1] She had her youngest child, YC, after arriving in Australia. He is an NDIS participant with intellectual and physical disabilities. She is his primary carer. She claims that she separated from her husband in 2017 and currently lives only with YC.[2]

   [1] Joint Tender Bundle (JTB), p 327; Transcript of proceedings, 28 February 2023, p 102.

   [2] Transcript of proceedings, 28 February 2023, pp 100-101.

3. In June 2017, the Applicant made a request to become a participant in the NDIS, claiming her impairments resulted in her needing assistance from another person to be mobile, to interact socially and in self-care and self-management.[3]

   [3] JTB, pp 68-76.

4. The Applicant has fibromyalgia (first reported in Australia in 2013[4]), a condition of generalised body pain without a known cause or cure[5], on which she seeks to rely to meet the access requirements. She has other medical conditions including chronic fatigue syndrome (CFS).[6] In her statement of facts, issues and contentions (SFIC) filed on 11 July 2022 she advised that she is not pursuing access on the basis of CFS. Nor is she pursuing access under the early intervention requirements.[7] She has other medical conditions, including immune dysfunction, cervical degenerative changes, scoliosis, temporomandibular joint dysfunction (TMJ), Gilbert’s Syndrome, Raynaud’s Phenomenon and osteoarthritis[8], but her submissions do not indicate she seeks to rely on those conditions to meet the access requirements.

   [4] Ibid, p 340.

   [5] Ibid.

   [6] Ibid, p 71.

   [7] Ibid, p 20.

   [8] JTB, pp 7, 20, 333, 788 and 829.

5. On 4 March 2020, a delegate of the Chief Executive Officer (CEO) of the Respondent determined the Applicant did not meet the access criteria set out in the Act because the delegate was not satisfied the Applicant’s impairments were permanent. An internal reviewer confirmed the decision on 1 April 2020. The internal reviewer accepted the Applicant lives with disabilities that affect her day-to-day living, leaving her unable to perform some tasks, and her diagnoses may be permanent. However the internal reviewer was not satisfied there were no further treatments available that would be likely to remedy her impairment, and therefore the impairment could not be considered permanent.

6. On 7 May 2020 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.

   LEGISLATION

   The access criteria

7. To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:

   (1)A person meets the access criteria if:

   (a)    the CEO is satisfied that the person meets the age requirements (see section 22); and

   (b)    the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

   (c)    the CEO is satisfied that, at the time of considering the request:

   (i)the person meets the disability requirements (see section 24); or

   (ii)the person meets the early intervention requirements (see section 25).

8. There is no dispute the Applicant satisfies the age requirements and the residence requirements. The Applicant does not seek to rely on the early intervention requirements set out in section 25 of the Act.[9] The issue for the Tribunal to decide is whether the Applicant satisfies the access criteria in section 24 of the Act (the disability requirements).

   [9] JTB, p 20.

9. Section 24 of the Act states:

   (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.

10. The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation. Rules 5.4, and 5.8 are relevant and applied in the consideration of the evidence.

11. The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[10] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guideline).[11]

    [10] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.

    [11] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) <>

    In her submissions the Applicant has cited Mulligan[12] in which Mortimer J held that the legislation requires “a relatively high degree of precision by decision-makers… in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted.”[13] Mortimer J also explained that the legislation requires that it is based on a functional, practical assessment of what a person can and cannot do.[14]

    [12] Mulligan v National Disability Insurance Agency [2015] FCA 544.

    [13] Ibid at [55].

    [14] Ibid at [56].

    ISSUES

12. The Applicant seeks to rely on fibromyalgia and the impairments associated with it to meet the access criteria. While not specifying the nature of the Applicant’s impairment, the Respondent conceded that the Applicant has a disability that is attributable to impairment(s) arising from fibromyalgia.[15] However, the “impairment” attributable to disability needs to be identified with some precision, because the threshold questions on permanency (paragraph 24(1)(b)) and substantially reduced function (paragraph 24(1)(c)) operate not on the concept of disability, but on the concept of impairment.[16] As such, the Tribunal will consider whether it is satisfied that the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments.

    [15] JTB, p 7.

    [16] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [51].

13. The Respondent now accepts that the Applicant’s impairment is permanent.[17] If the Tribunal finds the Applicant meets paragraph 24(1)(a) of the Act, it will consider whether it is satisfied any impairment is permanent.

    [17] Respondent’s Written Closing Submission dated 21 March 2023, p 2.

14. The Applicant has provided evidence about the impact of her impairments on her functional capacity and has submitted she has substantially reduced functional capacity in activities of mobility, self-care and self-management.[18] The Respondent is not satisfied the Applicant has a substantially reduced functional capacity in any of the specified domains and therefore does not meet paragraph 24(1)(c) of the Act.[19] If the Tribunal finds paragraphs 24(1)(a) and (b) are met, it will consider whether the Applicant’s impairments result in substantially reduced functional capacity to undertake any of the following activities: communication, social interaction, learning, mobility, self-care or self-management, as required by paragraph 24(1)(c) of the Act.

    [18] JTB, p 20.

    [19] Respondent’s Written Closing Submission dated 21 March 2023, p 2.

15. The Tribunal had concerns about several inconsistencies and anomalies in the Applicant’s evidence. This is relevant because some of the medical evidence on which the Applicant seeks to rely has been based on her self-reporting. Accordingly, another issue for the Tribunal to consider is whether the Applicant’s evidence is credible and reliable.

    CLAIMS AND EVIDENCE

    The Applicant’s access request

16. When making her access request the Applicant provided a form completed by Dr Priya Chowalloor, Rheumatologist, dated 8 June 2017[20], and a report by Dr Chowalloor dated 14 June 2017[21], providing the following information. The Applicant’s primary disability is fibromyalgia. Treatments will help but not fix her impairments. She needs help with mobility, including driving, cooking and caring for her disabled son. She is too fatigued for social interaction. She does not require assistance with communication but sometimes does not have the energy to talk. She does not need assistance with learning. She is too fatigued to attend to self-care such as showering/bathing and eating/drinking. She needs help with daily chores. She is under a lot of stress, looking after YC. She told Dr Chowalloor that she was single.

    [20] JTB, pp 68-76.

    [21] Ibid, pp 77-78.

17. Dr Chowalloor reported that the Applicant has symptoms of tiredness and widespread pain, especially in her arms and legs. The Applicant reported “numbness and pins and needles in the arms, legs, and fingers, blurred vision, headache…and watery eyes…early morning stiffness of one hour…Activities overall make the joint pain worse and resting seems to improve the pain… She reports normal appetite and mood habits, and interrupted sleep.”

18. On examination Dr Chowalloor found the Applicant had no joint deformity or inflammation in any joints. Her grip strength was normal. Her muscle power was intact in her upper and lower limbs. She had soft tissue tender/trigger points. Her neurological examination, including muscle power, tone, reflex and sensation, was unremarkable in her lower limbs and sensation was normal in her upper limbs. There was no muscle wastage noted. Dr Chowalloor recommended various treatments and exercises. For reasons given below, medical opinion about the utility of those approaches has since changed (see Dr Narozny’s and Dr Bowey’s evidence).

19. The Applicant provided various other medical reports with her access request. While the Tribunal has read those reports, it notes most are now several years old. Some of the reports are referred to in the Tribunal’s consideration of the claims and evidence. Since making her access request the Applicant has provided various other medical reports which are also included in the joint bundle. The Applicant relies, in particular, on reports by Ms Rebecca Atkinson, Occupational Therapist, Ms Rachel Scales, Occupational Therapist, Dr Marcin Narozny, her general practitioner (GP) and Dr Owen Bowey, GP. 

    Ms Atkinson’s evidence

20. Ms Atkinson prepared a functional capacity evaluation report, dated 30 November 2019, having undertaken an assessment on 23 November 2019.[22] Ms Atkinson advised that the information in the report was collated from a review of the Applicant’s available medical records and an assessment meeting during which information was obtained primarily through conversation with the Applicant and observation of her. The Applicant told her that she had experienced fatigue, lethargy and pain for approximately 15 years. At the time she was on naltrexone (which was having adverse side-effects), an antidepressant and cortisol injections. The Applicant reported that she had recently separated from her husband and was receiving no meaningful day-to-day support. The following is a summary of the Applicant’s reporting to Ms Atkinson, unless otherwise stated.

    [22] JTB, p 90.

21. The Applicant reported that she is YC’s carer. He has significant intellectual and physical impairments and is unable to mobilise, transfer, complete personal care activities, is doubly incontinent and non-verbal. She has four other adult children, but they are unable to provide her with assistance, apart from occasional help with household tasks.

22. The Applicant reported that pain is her major difficulty. It fluctuates from manageable to severe pain depending on the level of exertion, the time of day and other factors. This affects her ability to complete personal care tasks. She experiences significant pain raising her hands above her head and therefore cannot get dressed without difficulty, or wash her hair. She has back pain making standing and sleeping difficult. She has trialled several medications and treatments, but none have been effective in managing the pain.

23. The Applicant reported that her sleep is constantly interrupted due to caring for YC.

24. The Applicant reported that the maximum distance she mobilises before feeling excessively tired is approximately 60 metres. She reported near-miss falls in the previous three months, predominantly in the shower. She reported that after she mobilises long distances, or completes activities, she needs to rest for approximately two hours. Ms Atkinson noted that during the meeting the Applicant was able to independently ascend and descend stairs using a banister for support, at a slow pace. She observed that the Applicant was able to transfer from sitting to standing independently. The Applicant reported that she is independent with toilet transfers, using the vanity to support herself.

25. The Applicant reported that she seizes up in the morning and has difficulty transferring from a lying to a sitting position. She claimed she asks whoever is in the house to assist her with this movement. Once she is in a sitting position, she swings her legs out of the bed to transfer. She experiences dizziness. She had not trialled transfer equipment which Ms Atkinson considered may be helpful.

26. The Applicant reported that she eats independently but she is unable to stand at a bench and prepare meals. She has difficulty with meal preparation as she lacks energy. She has difficulty completing the family’s grocery shopping. Family members are unable to help and so the Applicant visits the shops and buys food meal by meal. As she is unable to mobilise distances longer than approximately 60 metres, Ms Atkinson opined she would likely find it exhausting mobilising around the shopping centre. As the Applicant reported reduced grip strength and pain in her hands, Ms Atkinson found it would be difficult getting items off grocery shelves.

27. The Applicant reported finding it difficult to raise her arms above shoulder height, difficulty dressing her upper body and seizing up if she bends to put on underwear. Ms Atkinson noted there is “a level access shower in situ at the property which was installed to meet (YC’s) needs”, however there is no shower chair which may be of assistance in conserving the Applicant’s energy.

28. The Applicant reported reduced grip strength and being unable to hang out washing, but that she could transfer small items from her washing machine to a dryer.

29. Ms Atkinson observed no difficulties with speech.

30. Ms Atkinson made various recommendations for further assessments for equipment such as a perching stool, a bed stick and a shower chair, and support worker assistance for cleaning, shopping, laundry and meal preparation.  

    Ms Scales’ evidence

31. The Applicant also relies on Ms Scales’ report dated 15 October 2021, prepared after three sessions at Ms Scales’ rooms at Bibra Lake.[23] Ms Scales reported that she relied on the Applicant’s self-reporting but took into account three medical reports, provided by the Applicant. Ms Scales recorded that the Applicant reported limited informal supports and that she depended on YC’s support workers to assist with his day-to-day support and care. The following is a summary of the Applicant’s reporting to Ms Scales, unless otherwise stated.

    [23] JTB, pp 233-244.

32. The Applicant reported difficulties with communicating and expressive language, impaired memory, attention and focus, delayed processing and impaired executive function due to chronic fatigue and pain.

33. The Applicant reported avoiding social interaction due to her chronic pain and fatigue, and prioritising YC’s care, household tasks, and attending her medical appointments. When she socialises, she has impaired attention and focus, and difficulties recalling information, and conversing.

34. The Applicant reported to Ms Scales that she was not orientated to date and day. She reported having difficulties locating her car in a large carpark, recalling placement of medical documents and general items in the home. Ms Scales observed that the Applicant was able to participate in a conversation but after 30 minutes displayed word-finding difficulties and required redirection, prompting and support to maintain the conversation.

35. The Applicant reported being able to start tasks but unable to complete them due to fatigue, pain and sensory overload. She reported mixing up activity steps, and pain and fatigue impacting on her completing activities such as getting clothes from hangers, driving, typing, and sitting for extended periods. Ms Scales observed the Applicant walking slowly and stiffly after being seated for an hour.

36. The Applicant reported pain and fatigue impacting her ability to shower independently and wash her hair. She claimed she had not showered in the two weeks prior to the assessment. Ms Scales recorded that “a shower chair and handheld showerhead are in the bathroom; the bathroom is level access with rails in situ”. The Applicant reported having difficulties brushing her teeth but could independently brush her hair and put on deodorant, and put on clean clothes when leaving her home but would not change out of her pyjamas due to the energy involved. She did however change her underwear daily. Ms Scales reported that the Applicant presented at her appointments as well-groomed.

1. The Applicant reported significant difficulty falling asleep at night, becoming overtired and unable to switch off. She reported sleeping five hours per night on average and fatigue if she did not sleep well. She used a CPAP machine due to sleep apnoea.

2. The Applicant reported often not having enough energy to eat a full meal but that she snacks throughout the day.

3. The Applicant reported that she is dependent on the NDIS supports to assist her in managing her caring responsibilities. She prioritises YC’s needs over all tasks. If she does not receive enough support with managing his care needs, she is at risk of carer burnout.

4. Ms Scales recorded that the Applicant demonstrated she could complete simple problem-solving. She is independent in budgeting and managing finances. She does daily grocery shopping purchasing small items, but often misses shopping trips, leaving her without essentials. She had tried online shopping but had difficulties locating the items she wanted. She buys pre-made meals as she does not have the energy to prepare meals and is unable to stand for extended periods.

5. The Applicant reported having the capacity to clean her home but has limited energy so was paying for someone to clean. She has seven cats and two dogs requiring her daily care. She was having difficulty doing her laundry and was only able to do the washing once a week. However, YC’s incontinence required the washing to be done daily.

6. The Applicant reported being able to use technology independently at night, when she attended to emails and phone messages.

7. The Applicant reported having her driver’s licence but having significant difficulties focusing and that she “may be required to sit in her car for up to 30 minutes following appointments to regain energy” and pulling over to rest when fatigued. She reported often being dependent on her ex-partner to drive her on the weekend, when he was available. She reported difficulties finding appointment locations and being late as a consequence.

8. Ms Scales also gave oral evidence, relevant aspects of which are discussed in the Tribunal’s consideration of the claims and evidence.

   Dr Narozny’s evidence

9. The Applicant also relies on Dr Narozny’s evidence, including a report dated 24 July 2020[24] in which he reported that the Applicant’s pain levels associated with fibromyalgia were severe and could lead to significant fatigue. He cited an episode when he considered having her admitted to hospital. In his view there is no clear and effective treatment and she will struggle with the symptoms for life. Her symptoms are permanent but fluctuating.

   [24] JTB, pp 230-231.

10. Dr Narozny provided another report dated 5 January 2021[25] in which he stated the Applicant had attempted graded exercise therapy (GET) but it was not beneficial and he would not recommend it. The Applicant had reported to him that she was not depressed and had found cognitive behaviour therapy (CBT) to be of little benefit. In his view psychological interventions were not warranted as she has good coping skills and her mood is stable despite chronic pain. In his view, she has tried to engage with all reasonable recommended therapies and her condition is fully diagnosed and stable.

    [25] JTB, p 232.

11. Dr Narozny also gave oral evidence, relevant aspects of which are discussed in the Tribunal’s consideration of the claims and evidence.

    Dr Bowey’s evidence

12. Dr Bowey provided written medical evidence including a letter dated 19 March 2020[26] in which he stated the Applicant’s fibromyalgia is permanent, exercise exacerbates her pain, and chronic pain and fatigue impact on her ability to function and on her memory.

    [26] JTB, p 102.

    Ms Jodrell’s evidence

13. The Respondent seeks to rely on the report by Ms Jodrell, Occupational Therapist, dated 2 August 2021.[27] Ms Jodrell assessed the Applicant in her home, over two and a half hours, using various tools. Her report is based on the Occupational Performance Model (Australia) which provides a systematic method for assessment and a comprehensive view of functional performance in daily living. Ms Jodrell summarised the medical evidence she considered including medical reports by Dr Chowalloor, Dr Narozny and Dr Bowey.

    [27] JTB, pp 352-372.

14. Ms Jodrell sets out the Applicant’s social circumstances, who reported living only with YC, being separated from her husband since 2017, not receiving any assistance from her adult children, and communicating with her father and sister in the UK weekly. She reported taking YC to the UK in 2017 for therapy.

15. The Applicant reported to Ms Jodrell that in a week she could have two days where she spends most of the time in bed (bad days) and five days out of bed but even on those days she is “barely functioning”.

16. Ms Jodrell observed the Applicant complete two light activities of short duration, otherwise she remained seated on the couch. Her observation of the Applicant transitioning between seating and standing indicated normal range of joint movement in the lower limbs, though the Applicant noted pain. From a seated position the Applicant was only able to raise her upper limbs to 90-degree abduction, limited by weakness and discomfort. The Applicant reported that she could not raise her arms any higher. Ms Jodrell observed the Applicant to have “appropriate grasp and release to interact with task objects to support function”, but formed the view repetitive activity would likely exacerbate fatigue and pain. The Applicant reported she could tidy the kitchen and do a few dishes but this activity was time-limited due to fibromyalgia and chronic fatigue.

17. With respect to sensory motor function, the Applicant reported pain affecting her functional performance. Ms Jodrell noted the Applicant did not demonstrate any issues with motor planning or gross motor coordination. Any problems with function were attributed to fatigue.

18. With respect to cognition the Applicant reported difficulty concentrating during the day when in pain and fatigued. She cited forgetting where she had parked her car or left the keys. She reported having better mental function in the evening and used this time to engage in cognitively challenging tasks such as writing emails, communicating with her sons and service providers, and paying bills.

19. Ms Jodrell noted there was no neuropsychological report of the Applicant having cognitive dysfunction. She observed her cognitive skills during the assessment were unremarkable and stated “this is consistent with my observations throughout the lengthy assessment wherein (the Applicant) remained focused and attentive, maintained appropriate language and mood, responded to all requests and questions, and provided appropriate insight and awareness.” She accepted however that the Applicant’s mental skills may be adversely affected by pain and fatigue.

20. With respect to psychosocial function, Ms Jodrell noted that the Applicant presented “as an engaging lady who used effective verbal and non-verbal language to communicate… throughout the assessment.” The Applicant had reported however that family relationships were strained and that “she has little support if any from her four older children.”

21. With respect to occupational performance, Ms Jodrell reported that activity was limited by the Applicant’s weakness and appeared to escalate her pain. She noted however that the Applicant has the cognitive abilities and motor skills to perform activities of daily living.

22. With respect to mobility the Applicant reported she was able to independently walk, inside and outside her home. She could walk into a shopping centre and access medical appointments, but sustained activity reduced her endurance. Ms Jodrell observed that, from the couch, the Applicant demonstrated the ability to transition effectively between sitting and standing, and then returning to sitting. She had no difficulty with other transfers apart from getting in her vehicle as it has high seats.

23. With respect to self-care, the Applicant reported she is independent in all aspects of personal care, including toileting, showering, dressing, undressing, grooming, eating, drinking and medication management. She noted however that fibromyalgia and fatigue mean that she needs to use adaptive strategies in some tasks. Ms Jodrell made recommendations, for example, that the Applicant lean her head forward when washing her hair to limit the shoulder excursion when reaching her hands above her head.

24. Ms Jodrell noted that the Applicant shares an ensuite bathroom with YC, modified to suit his needs. It includes a level walk-in shower and a shower chair. The Applicant reported using the chair to manage her fatigue but found it too low to facilitate transfers. The Applicant claimed she showered only once a fortnight, as she “has no motivation to shower regularly as she rarely goes out”. Ms Jodrell recommended she use an appropriately heighted chair to facilitate transfers, minimise effort and ensure safety. She concluded the Applicant has the functional ability to shower and that it was unlikely external prompting or physical assistance would improve the frequency of this activity. She advised that the Applicant adjust her day-time routine to shower at night when she has more energy.

25. Ms Jodrell observed that the Applicant maintained appropriate verbal communication over the duration of the assessment. She uses a mobile phone with Internet and Applications (Apps) to support online banking. She uses a loudspeaker. She does not use a computer or an iPad.

26. Ms Jodrell recorded that the Applicant reported minimal engagement in domestic activities. She does not prepare meals for herself or YC but buys meals that can be microwaved. YC’s support worker prepares his breakfast and the Applicant packs his school lunch the night before. This arrangement works well as the Applicant does not always get out of bed when the support worker arrives. In the evening his support worker heats his food and feeds YC.

27. Ms Jodrell recorded that the Applicant reported not participating in routine domestic tasks but will tidy and wipe down bench tops. At the time she was employing domestic assistance. She was doing her own shopping but reported “when walking around the shops she gets to the stage where she realises she has pushed herself too far and has to go home. She usually organises it so that she can just go to one shop. (She) has not considered Internet shopping stating that she can’t be bothered and likes the opportunity to interact and see other people.”

28. Ms Jodrell recorded that the Applicant reported that a support worker showers YC and dresses him for school. The Applicant is often too tired to get up and say goodbye to YC. Each afternoon the support worker meets YC at the school bus, organises his evening meal and gets him ready for bed. From 7:00 PM to 8:00 PM the Applicant spends time with YC on his iPad. YC has a support worker for four to eight hours on the weekends.

29. Ms Jodrell recorded that the Applicant reported maintaining full control of her personal and financial affairs, completing all these activities at night when she is most alert.

30. Ms Jodrell recorded that the Applicant reported having a driver’s licence and driving a Volkswagen van provided by her son’s trust fund. She uses the van to take YC to his appointments. With her assistance he steps up into the vehicle and into his car seat. In her view between 3:00 PM and 6:00 PM she is not safe to drive due to fatigue and so tries to get morning appointments or get one of her children to drive her. On a bad day she will cancel an appointment. Ms Jodrell recommended that the Applicant’s GP determine her suitability to operate a vehicle and, if necessary, complete a medical assessment of her fitness to drive.

31. Ms Jodrell recorded that the Applicant reported not participating in any leisure or recreational activities and, even if she is motivated, she is too tired to initiate any activity. However she admitted to travelling to the UK with YC in 2017.

32. Regarding her daily routine the Applicant reported that from 7:00 AM until midday she considers herself to be totally dysfunctional with pain and fatigue, making it difficult to get out of bed. Between midday and 3:00 PM she starts to feel better and can do some tasks, such as shopping. Between 3:00 PM and 6:30 PM pain and fatigue escalate, and she cannot do anything. She thinks she is not safe to drive during this period. From 7:00 PM she starts to feel better and does paperwork, sends emails, makes herself dinner and packs YC’s lunchbox. She retires between midnight and 3:00 AM but then has difficulty sleeping.

33. Ms Jodrell used the Rivermead Mobility Index, a self-reporting assessment tool, and noted the Applicant reported that she can roll over, sit up and get out of bed independently. She can walk inside and outside, without assistance, reach forward to pick up an object from the floor, transfer into and out of the shower and wash independently. She cannot walk up and down a flight of steps without assistance or a rail and she cannot run.

34. Ms Jodrell used the Berg Balance Scale, a performance-based assessment tool used to evaluate standing balance. She noted the Applicant’s score placed her in a low falls risk category. The Applicant reported low confidence in her balance but had had no recent falls.

35. Ms Jodrell used the UK FIM+FAM tool, a global measure of disability addressing cognitive and psychosocial function, and the need for assistance. Ms Jodrell recorded that, in self-care, the Applicant scored complete independence, except for grooming, showering, and bathing for which she demonstrated modified independence because tasks took more time to complete.

36. For mobility the Applicant demonstrated modified independence (due to limited endurance) for transferring, walking, using stairs and community mobility, and complete independence in all other aspects of mobility.

37. For communication the Applicant demonstrated complete independence in all aspects of communication except for writing for which she demonstrated modified independence.

38. In the psychological domain the Applicant demonstrated complete independence in social interaction, modified independence for emotional status, some difficulties in adjustment to limitation and the need for moderate assistance with respect to use of leisure time.

39. In the cognition domain the Applicant demonstrated complete independence with problem-solving, moderate independence with memory, although she was able to use self-initiated cues to support memory, complete independence with orientation and safety awareness and modified independence with concentration.

40. With respect to activities of daily living the Applicant demonstrated complete independence with financial management but required minimum assistance with meal preparation, maximum assistance with laundry and housework, and modified assistance with shopping.

41. Ms Jodrell also used the Community Integration Questionnaire-Revised, a tool to determine the Applicant’s participation in home, social, productivity and electronic social networking areas. The Applicant’s overall results demonstrated that she is not engaged in meal preparation or housework, though she is responsible for shopping. Her social integration scores were low because she rarely goes out, apart from visiting shops, and does not have a best friend. Ms Jodrell recorded that “she relies on electronic social networking, and only to talk to her father and sister”. Ms Jodrell was of the view she was at risk of social isolation.

42. Ms Jodrell also used WHOQOL-BREF, a self-perception tool on quality-of-life. The Applicant rated her quality of life as poor and was dissatisfied with her health. She had low scores in social relationships and physical domain.

43. Ms Jodrell also used the Pain Self-Efficacy Questionnaire which is used to assess the confidence people with chronic pain have in performing activities despite their pain. The Applicant demonstrated low confidence in performing a range of activities when in pain.

44. In response to targeted questions Ms Jodrell concluded that the Applicant was able to communicate effectively as demonstrated by her capacity to communicate verbally throughout the two-and-a-half-hour assessment. With respect to social interaction Ms Jodrell formed the view that the Applicant had the ability to engage socially but did not have opportunities for interaction in social situations outside medical appointments and time-limited shopping outings. Ms Jodrell was satisfied the Applicant had the ability to learn. She observed no limitations in decision making, noting the Applicant was able to make and attend medical appointments and manage her own medication independently.

45. Ms Jodrell observed the Applicant was able to walk independently but accepted her tolerance, estimated at 50 to 250 metres, varied with pain and fatigue. She suggested the Applicant could use a transit wheelchair, propelled by an attendant, when exertion escalates fatigue, for leisure or recreational activities. She recommended the Applicant use a seat walker in the shopping centre. She noted the Applicant was not using any aids.

46. Ms Jodrell formed the view the Applicant maintains the motor skills and cognitive ability to execute self-care tasks but due to fatigue chooses not to, to save energy. She formed the view no support for self-care was indicated but a shower chair would be appropriate.

47. Ms Jodrell also gave oral evidence, relevant aspects of which are discussed in the Tribunal’s consideration of the claims and evidence.

    The Applicant’s written and oral evidence

48. In her written statements of lived experience[28] the Applicant has made the following claims.  She first experienced fibromyalgia symptoms in 2003 while living in the UK. She was bedbound, used a wheelchair and could not use her fingers for about two years. She improved and in 2010 she and her family migrated to Australia. After migrating her symptoms returned and since 2012 she has had chronic pain. She also has carer burnout as YC needs 24-hour care which she has done alone since separating from her husband.

    [28] JTB, pp 327-332.

49. The Applicant also claims that during the day she does not get anything done, can barely get out of bed, does not shower, cannot cook meals, and has no energy and a lot of pain. She experiences headaches. Pain affects her capacity to hold or carry things. She cannot undertake daily living and paperwork tasks during the day but can in the evening when YC is asleep. This however limits her capacity to do anything noisy like washing.

50. The Applicant gave a summary of the various medications and treatments prescribed for her condition, claiming she has tried “every painkiller and anti-inflammatory that there is, nothing helps”. She has had no benefit from acupuncture, herbal treatments or meditation classes. Her attempts at exercise left her “collapsed on the floor.” A physiotherapist suggested light exercise but the pain was too great, so she discontinued with this. Other treatments such as hydrotherapy, osteopathy, physiotherapy, chiropractic, remedial massage, cannabis oil and opioids have done nothing for the pain.

51. The Applicant stated she has not lived with her husband since 2017. Her eldest son, a Fly in, Fly out (FIFO) worker, lives with high functioning autism and looks to her for support, although occasionally drives her to an appointment when she is too fatigued. Her second son, also a FIFO worker, lives in outer Perth with his young family and so she sees him only once a month, fleetingly. She sees her daughter regularly but “only for a quick chat” as she has three jobs. Her other son lives with mental illness and with another family. Her father, aged 82 (in March 2021), was struggling with cancer and living in England. Her sister was living in England, supporting her own family and their father. Her ex-husband would visit YC “to say hello but does nothing else. I don’t have informal supports to help me…”.

52. The Applicant stated that she does not have any energy and this affects her social participation. She “cannot get out to make friends, can’t even get out of bed”. She wants the NDIS to provide her with support as she has “no one else to help her”. She has “no life at all as my time and resources are dedicated to caring for my severely disabled nine-year-old son (YC), or to just living with chronic pain and fatigue. I am in bed 80% of my time and most of the time I just feel washed out and wiped out”. Her life is dedicated to supporting YC “which is a 24/7 job even with my living with Fibromyalgia/CFS.” On a range of one to ten she assessed that she lives with pain levels at nine to ten. YC has NDIS assistance but the care she gives to YC is “much more than a typical parent...”.

1. The Applicant stated transport, exercise and mobility are particularly challenging. Even though she can and does drive, her fatigue requires her to pull over on the side of the road, as her head is spinning, until she recovers.

2. The Applicant stated her

   disabilities make shopping and walking a nightmare. It is only a 10 to 15 minute walk to my local shops but I just don’t have the capacity to walk it during the day because of my CFS. I have no energy to shop, to pick up heavy bags of shopping or to stand in my kitchen and prepare and cook a meal. I have to buy frozen meals and microwave them otherwise we would starve.

3. The Applicant stated she cannot function “at all during the day and rarely get(s) out of bed” as she tries to conserve her energy. She functions more at night but cannot fit a full day’s work into a few hours so “other things have fallen through the cracks such as cleaning, meal preparation and self care.” Although she can toilet, bath and shower herself, she does not have the energy so just stays in bed.

4. The Applicant stated:

   …my average day is one of living with profound fatigue, chronic pain, cognitive dysfunction and sleep abnormalities…This dysfunctionality impacts my self-care, mobility, communication and social interaction.[29] Sometimes my cognitive dysfunction from fatigue makes it hard for me to interpret information and sometimes I speak so slowly that I start slurring and people can’t understand me.

   [29] The Applicant has since clarified in her Statement of Facts, Issues and Contentions filed in July 2022 that she seeks to rely only on substantially reduced functional capacity in relation to mobility, self-care and self-management.

5. The Applicant’s SFIC filed July 2022 records that it was prepared by her “with minor assistance from Legal Aid WA”.[30] In it she has made the following submissions.

   [30] JTB, pp 16-29.

6. The primary issue in contention is whether her impairments arising from fibromyalgia result in substantially reduced functional capacity to undertake the following activities: mobility; self-care; and self-management. The Applicant referred to Professor Ian Cameron’s report. He explains that pain is the main symptom of fibromyalgia. Other symptoms “such as fatigue, non-refreshed sleep, mood disturbance and cognitive impairment are common, but not universal”.[31] It is submitted the Applicant’s chronic pain is exacerbated by her fatigue. Her reduced functional capacity is a consequence of pain and associated fatigue.

   [31] JTB, p 341.

7. The Applicant has submitted that she should not be penalised for being a good parent in her efforts to look after YC, despite her chronic pain, fatigue and exhaustion. She prioritises YC’s needs over her own and so may appear unmotivated regarding her own needs.

8. With respect to mobilising the Applicant has submitted that, when she is severely fatigued and in significant pain, she experiences weakness in her arms and hands. This impacts her ability to complete activities such as accessing clothes from hangers, driving and typing. She relies on the occupational therapy assessments to demonstrate that her impairments prevent her from undertaking the ordinary activities of daily living in an ordinary manner. She cannot use stairs, hang or remove laundry, or raise her arms above her head or to shoulder height without experiencing pain. She feels exhausted and needs to rest for approximately two hours after mobilising long distances or using stairs.

9. With respect to self-management the Applicant submitted that she has difficulty shopping due to her mobility issues and pain. She tried online shopping but had difficulty locating the items she wanted. To compensate, she shops daily and buys only small items and pre-packaged food. She buys premade meals as she experiences hand pain when cutting vegetables. She has difficulty with housework and cleaning.

10. The Applicant has submitted that, while she is able to walk, shower, drive, type and shop she is unable to effectively or completely participate in these tasks without experiencing increased pain or risking exhaustion.

11. At the hearing the Applicant made the following claims.[32]  When asked about the activities in which she has substantially reduced functional capacity, the Applicant stated her mobility is severely reduced. She cannot walk far as she feels pain. Her fatigue is profound. She needs help with self-care and to socialise. She wants to make friends. She needs a wheelchair, as recommended by Ms Jodrell, and someone to propel her.

    [32] Transcript of proceedings, 28 February 2023, pp 97-105.

12. The Applicant stated that she separated from her husband in 2017 and does not know where he lives. They are not divorced. They own the house together, but it is mortgaged. When asked who pays the mortgage the Applicant stated “No one at the moment, because I ended up in Perth clinic and he lost his job because I said to him he has to look after YC”. He paid the mortgage until December 2022, prior to losing his job. She has been in discussions with the bank, by phone, about the arrears and how the mortgage will be paid.

13. The Applicant told the Tribunal that she lives only with her son, YC. Her daughter was living with her but moved out in May 2022. She sees her daughter about twice a week. She stated she is YC’s primary carer. She indicated she is on a single parent payment with a carer payment for being YC’s carer. He needs “help eating, he needs nappy changes, he needs total 24/7 care. He’s like a baby and he’s 11 years old. He poos all up his back, he needs showers twice a day because…he’s double incontinent, he has diarrhea because he has got dumping syndrome...” She stated YC has support workers who shower him, but she showers him three or four times a week on average. He can dress and undress himself but needs prompting. He can dry himself but needs help. If his support workers are present, they get him ready for school and she kisses him goodbye. She has support workers overnight, caring for YC, about three nights a week. Otherwise, about every second night, she gets up and prepares thickened fluid for him if he needs a drink in the night. She checks his nappy and consoles him. She never takes YC to and from school because there is a school bus. She might attend a school meeting once a year. She or support workers take YC to his appointments. She has support only four to sixteen hours over the weekend.[33] The rest of the time she cares for YC herself.

    [33] Transcript of proceedings, 28 February 2023, p 127.

14. The Applicant told the Tribunal that she has four cats and two dogs.[34] She has had three dogs in the past. She is responsible for feeding and looking after her pets. If they need to see a vet “(w)ell, I have to ask either my ex-partner, see if he’ll take them or my daughter. I don’t have the capacity to drive all the time and do that.”

    [34] The Applicant confirmed that she previously had seven cats, but now only has four.

15. The Applicant told the Tribunal she spends at least four days a week in bed due to pain and fatigue and that she cannot get out of bed without help. She spends the majority of her time in bed. She struggles to toilet. She forces herself to get up to get food for YC. His support workers prepare his after-school snacks. By 7:00 PM she sits on the sofa and interacts with him. Between 7.30 PM and 9:00 PM she lies down with him. She has more energy in the evenings so she walks him to the toilet and puts him to bed. She then addresses any emails to do with his therapies. That is when she is at her best. She is very proactive and likes to make sure she is on top of things. She may access social media or speak with her father and sister in England, although some nights she does not have the energy. It can take her until 2:00 AM or 3:00 AM to go to sleep, because of insomnia and fibromyalgia.

16. The Applicant stated the four days in bed can be consecutive if she has a fibromyalgia flare up. The Tribunal asked about the care of her animals on those days. She stated “I have to do my cats, I will get the bowl, put the food in put it down and do the litter in the evening once I’m able to…I’ll put my son first, the animals second, and myself last because I feel when you are responsible for a life, then it is imperative that…they get the care they need which limits me and my self-care because of what I have to do”.

17. The Tribunal asked the Applicant about her good days. She stated:

    “(a) good day would be less fatigue. I still suffer with the pain and the mobility is still an issue. But I would feel a bit better in myself and a bit more alert…so a good day would be, maybe I could buy a couple more things in the supermarket, or you know, I might be able to do something in the house a little bit more so, rather than let things pile up.”

18. The Tribunal asked the Applicant who looks after YC on her bad days. She stated:

    Well, he does have the NDIS. Where I really struggle is when I can’t find a support worker, then YC has sat next to me in bed with his iPad watching a movie because I physically can’t care for him. And I feel awful because I feel that I should be doing it, but I physically can’t...But I will push myself to like change his nappy because I have to.  But I really do struggle.

19. The Tribunal asked that the Applicant clarify whether she still cares for YC, including changing his nappy, on the four days a week she stays in bed. She stated “I do, but I struggle if there is no support worker...” She claimed she was in Fremantle Mental Ward for five weeks from December 2020 until January 2021 because she was so distraught as the NDIS was not providing her son with the support he needs.

20. When asked about shopping the Applicant stated it is only a two- to three-minute drive to the shops. She parks in a disability bay. She picks up one or two items from the fridge at the front of the store, such as lasagne for YC or a bag of salad for herself. She has lots of tins of chickpeas in the cupboard, so she just picks up what YC needs. She then returns to her car and drives home. She is then very fatigued. There are some days she cannot do this. She buys only one item because she cannot physically walk around a supermarket and buy a whole lot of shopping as it exhausts her and hurts her arms. She also gets brain fog and sensory overload. She paces herself by buying one item each time rather than doing a massive shop once a week. When asked if she dresses to shop, she stated she does not; she might wear what she slept in, tracksuit pants and a t-shirt.

21. In response to Counsel’s questions the Applicant indicated that her usual place to shop is at Rockingham Centre, about 20 minutes’ drive from her home, a large shopping mall, but her daily shopping is at a store only two minutes’ drive from her home. She clarified that she lost her car in the shopping centre carpark while she was at the main shopping centre for clothes, not food.

22. The Applicant was asked about Ms Jodrell’s suggestion that she do her shopping online. She stated she does not do this because of “brain fog sensory overload. It’s overwhelming to choose lots of different things and look at a computer. I don’t go on (the) computer...when you’ve got sensory overload…it’s exhausting.” She does not use an iPad or a laptop; she uses her phone. When asked to comment on Ms Jodrell’s report that the Applicant said that she “can’t be bothered” shopping online, she stated she found it “quite demeaning. It’s a fact that I find it very hard and I could potentially try to do that of an evening but then I am reducing my social aspect of doing something for myself...”. She admitted watching TV, but said it was not very often because of the “overstimulation with the blue light”. She admitted to video calls with her family and to contact over social media but said “it will be at night …between 7 and midnight I’m not as fatigued”. When it was put to her that she could shop online weekly, given what she does on her phone, she said “I’m not too sure if I was doing that then that would impact…on the other things I have to do because I still have to (deal with) emails and physios and speech therapists and OTs and school and behaviour specialists and, you name it, I’ve got the emails for it and they don’t - you know, they don’t take five minutes.” She claimed to spend an hour and a half a week on emails relating to YC’s therapies and the NDIS, the house, her pets and mortgage issues. She claimed she got her member of parliament involved in YC’s NDIS plan.

23. Regarding meal preparation, the Applicant indicated that her daughter makes some meals for her but she does not eat well. She might have a tin of chickpeas and salad. The Tribunal sought to clarify who purchases the chickpeas. Ultimately the Applicant admitted that her daughter or her ex-husband buy groceries for her.

24. Regarding housework, the Applicant stated she was paying a cleaner until the previous year but now does not have the money. Sometimes she will get YC’s support worker to do the laundry but some workers refuse to do housework. The washing piles up because YC soils his sheets. When asked who does the basic housework, the Applicant stated the bathrooms do not get done and the fridge needs cleaning.

25. Regarding her arrangements for and attendance at her medical appointments, the Applicant indicated she makes her own appointments, either by calling or booking online. She goes to different GPs because Dr Narozny is so busy. In the last 12 months she has seen four or five different GPs, usually one every other week. She goes for candida, headaches, gynaecological problems and once for a kidney stone. She also has scans. Usually she drives and if she can’t, she will cancel the appointment.

26. The Tribunal noted that Ms Scales had recorded in her October 2021 report that the Applicant presented as well-groomed and had reported to Ms Scales that she can independently brush her hair and put on deodorant. In her oral evidence Ms Scales had told the Tribunal that the Applicant’s hair was in a ponytail.[35] The Applicant denied this and stated she could not lift her arms to do her hair. She indicated her daughter does her hair, tattoos her eyebrows and does her nails. When asked if she washes the Applicant’s hair she stated “she’s never washed my hair. She won’t go that far.” When asked why her daughter will do her hair, eyebrows and nails but not wash her hair she stated “because she’s not always available to do these things for me. At the time she was living with me.”

    [35] Transcript of proceedings, 28 February 2023, p 86.

27. The Tribunal also noted Ms Scales recorded that the Applicant reported putting on clean clothes when going out and changing her underwear daily. The Applicant denied this. When asked to address this apparent inconsistency, the Applicant stated she might have been doing it at the time she saw Ms Scales but things can change. She admitted on good days she can change her underwear and clothes but there are times that she goes to the shop in what she slept in. She later confirmed she usually changes her underwear daily.

28. The Applicant told the Tribunal she drives a van, registered in her name. When asked about the management and maintenance of the van she stated YC’s trust fund does that. She admitted however that she manages the trust, pays the registration and insurance, and pays her utility bills by arranging for them to be automatically paid from her Centrelink benefits.

29. The Tribunal asked the Applicant if she has ever been concerned that she should not be driving because of fatigue. She indicated she does not think it is safe for her to drive but she has no choice. She claimed to have been pulled over by the police because she was not driving straight but the officer let her off. The Tribunal asked if she is concerned driving her son. She stated “I should not be driving when I’m fatigued period. I don’t know about being assessed. I can drive okay usually but when the fatigue is that profound and I have no choice to push myself…”.

30. The Applicant confirmed that she went to Adelaide three times, in June 2018, January 2019 and August 2019, for three weeks each time, to the Timmermans Method clinic so that YC could undergo specialist therapy. She went with YC and her ex-husband who also attended the therapy sessions. A lot of the therapy was funded through the Lions Club after the Applicant made contact with the Club, seeking their help.

31. The Applicant told the Tribunal that she travelled overseas with YC in 2017. When Counsel for the Respondent referred to her travel to the United States (USA), the Applicant corrected her and said she went to the UK for six weeks. She stayed with her father. She took YC for therapy, once a week, for about two hours. The rest of the time she spent with her family. She ‘partially’ cared for YC. Her father, who is fit and youthful, cared for him most of the time. She showed the Tribunal a video of her father, dated 27 August 2015, on a wave board. She denied that her father was too unwell to look after YC, stating he had prostate cancer, but it is managed and not really affecting him. She confirmed she travelled with YC by herself with a stopover in Dubai for an hour.

32. The Applicant claimed to seize up at times and needs someone to assist her to get out of bed. She claimed there are days she stays in bed all day. When asked whether she went to the toilet on those days she admitted “I have got to force myself”.  

33. With respect to Ms Jodrell’s recommendation that the Applicant use a technique to wash her hair, she acknowledged Ms Jodrell made this suggestion. She could not recall if she raised this with Ms Scales two months later. When asked whether she had attempted the modification the Applicant stated “if someone wants to pay for a shower adaption they are more than welcome.” Counsel suggested it was something that the Applicant could try without a modification. The Applicant stated her handheld showerhead is very high. She denied being able to use it sitting down but acknowledged she can use it to assist YC but only because he has short hair. The Applicant has not had the showerhead adapted because “I don’t have the funding to adapt it. That’s what the NDIS is about.” She has sought assistance from local council and charities about funding for showerheads and was told the NDIS fund bathrooms and adaptive equipment. A project manager was visiting her the following week to look at adapting a wet room for YC. When asked who made this arrangement she stated she is “pro-active with my son and his needs.”

34. The Tribunal noted there was a medical record in the filed documents dated 25 February 2020 that referred to the Applicant’s recent trip to the USA. The Applicant admitted that she had travelled to the USA, with YC, her ex-husband and her daughter. She claimed they took YC to California for treatment. She estimated she was there “(A) week and a half, two weeks...” After the hearing the Applicant submitted that they had departed Australia on 10 December 2019 and departed Los Angeles on 2 January 2020. She stated her father paid for the trip, including for her ex-husband.

35. The Tribunal also raised with the Applicant evidence in the filed documents referring to her consulting a sexual health consultant in January 2019 in relation to the impact her symptoms were having on her intimate relationship with her husband.

36. The Tribunal also asked the Applicant about Dr Narozny’s oral evidence about a drug trial for fibromyalgia. Her evidence on this issue is discussed in more detail below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

37. The Tribunal has taken into account all of the written material included in the joint bundle of documents filed with the Tribunal for the hearing, and evidence regarding the Applicant’s overseas travel, and the parties’ closing submissions, filed after the hearing. It has also taken into account all of the oral evidence given at the hearing.

38. The hearing was conducted by videoconference on 27 and 28 February 2023.  It is relevant in this case, for the reasons discussed below, that the Applicant participated in the hearing, with some breaks, from 9:00 AM until 3.30 PM on the first day and 9.20 AM until 3.30 PM on the second day, supported at the hearing by a disability advocate. She gave oral evidence by videoconference. The Tribunal also heard oral evidence by telephone from Dr Narozny, Ms Scales and Ms Jodrell.

1. At the commencement of the hearing the Tribunal asked the Applicant if she had before her the joint bundle of relevant documents. Initially she indicated she did, but she did not have a hard copy. She thought her disability advocate had the documents on her phone. However, while the Tribunal noted the Applicant had before her Ms Jodrell’s written report while Ms Jodrell gave her oral evidence, the Tribunal was informed by her disability advocate that she did not have access to the entire joint bundle during the hearing. Accordingly, at times, for the sake of clarity and procedural fairness, the Tribunal read to the Applicant relevant parts of the written evidence under discussion.

2. In her statement of lived experience, the Applicant has claimed she has difficulties with communication, and “difficulty focusing, understanding, following and interpreting long and/or complex conversations… sometimes I have difficulty communicating as I forget what I am saying. I am unable to communicate while completing another task.”[36]

   [36] Applicant’s Statement of Lived Experience dated 16 May 2022.

3. At the commencement of the hearing, the Tribunal explained to the Applicant that she could request a break at any time and that, if she needed to have a rest, she should let the Tribunal know. It also explained that, if she was having any difficulty understanding anything she should let the Tribunal know. At the commencement of the second day of the hearing the Applicant’s disability advocate told the Tribunal that the Applicant was feeling fatigued however the Applicant appeared able to participate in the hearing.  The Tribunal observed her transfer independently a few times from the table to a couch for short rests. It was informed she could still hear the proceedings. There was one occasion when she indicated she was fatigued but, apart from that, the Tribunal observed she remained engaged and attentive during the entire two-day hearing. The Tribunal observed she was able to take written notes while witnesses were giving oral evidence. She was also able to provide comprehensive answers to the questions asked.

4. Having regard to the Applicant’s oral evidence, and from observations of her engagement during the hearing process, the Tribunal is satisfied that any fatigue or communication issue the Applicant has reported did not impact on her capacity to participate in the hearing such that she was not able to give her evidence and present her arguments as to why the Tribunal should find she meets the access requirements. The Tribunal is satisfied the Applicant was able to communicate effectively and engage meaningfully in the hearing process.

   Inconsistencies/anomalies in the evidence

5. There were several apparent inconsistencies/anomalies in the evidence which raised concerns for the Tribunal, particularly because the Applicant seeks to rely on medical reports which were, to a large extent, completed on the basis of her self-reporting. While weight can be given to medical evidence relying on self-reporting, the Tribunal must be satisfied that the Applicant’s reports to witnesses are reliable and credible.

6. The Tribunal gave the Applicant an opportunity to comment on its concerns. Some do not relate directly to the Tribunal’s assessment of the Applicant’s impairments. However they were still discussed with the Applicant because they may raise concerns about the reliability of, and weight that can be given to, her evidence.

7. The Applicant has asserted that she stays in bed about four days a week due to pain and fatigue and she cannot get out of bed without help. This claim raised a concern for the Tribunal as it seemed to be inconsistent with other evidence. For example, in September 2019 the Applicant consulted Dr Duane Anderson at Fiona Stanley Hospital’s Pain Management Clinic.[37] He noted she lives “a modest active lifestyle” and “she lives an active life and she eats a healthy diet”. He recorded however that she reported spending “80% of her day in bed”. Dr Anderson indicated he could not reconcile “how excessive rest translates into an active lifestyle”.[38] When this was raised with the Applicant she stated:

   I remember reading that report because I do spend 80% of time in bed, however, my life is chaotic in the sense of I have so much that needs doing and a son that I need to care for, but I am not active as in doing badminton…maybe he misconstrued or wrote it in that way because that way completely contradicts me being in bed...[39]

   [37] JTB, pp 87-89.

   [38] Ibid, p 88.

   [39] Transcript of proceedings, 28 February 2023, p 113.

8. The Tribunal has considered this response but, for the following reasons, doubts that the Applicant spends four days a week, or alternatively 80% of her time, in bed as she has claimed.

9. The Applicant told the Tribunal that she cares for YC in various ways during the week. She drives to the shops on a daily basis to buy YC’s dinner. She spends time with him at night. She assists him with self-care. She prepares food for him during the night. She also attends to all YC’s therapy arrangements and takes him to his medical appointments. She deals with email correspondence and follows up on any issues relating to the NDIS. She makes enquiries with Council and charities, the Lions’ Club and researches various treatments which might assist YC’s mobility. She also claims to have travelled to pursue YC’s specialist therapy, to Adelaide, the UK, and the USA.

10. The Tribunal notes Mr Chad Timmermans’ evidence that the Applicant attended his clinic in Adelaide in 2018 and 2019, on three occasions, for three weeks at a time. When asked about these trips the Applicant stated she went because “I’m YC’s primary carer and I was told that my son will never walk, and I found out that there was this therapy that could get him to walk and to me my priority is YC, and YC can now walk with assistance holding hands.”[40]

    [40] Transcript of proceedings, 28 February 2023, p 117. Mr Timmermans stated the Applicant also received therapy at his clinic, having been referred by her doctor. He also noted that the day after her treatment the Applicant would sleep for a number of hours on the couch in the parent’s room but continued to receive the therapy over the period each time she attended: JTB, p 319.

11. The Tribunal is of the view this pattern of caring for YC does not support the claim that the Applicant spends four days, or 80% of her day in bed. This is no criticism of the Applicant. The Tribunal is mindful of the challenges she faces in supporting YC to reach his potential. While it accepts her caring support might be exhausting, the evidence she has provided about the attention she gives YC indicates she spends more than 20% of her day involved in his care. This is supported by the fact that Centrelink has accepted she is his primary carer.

12. The Tribunal also notes the Applicant is responsible for YC’s trust, the maintenance and registration of the van and that she has contact with the bank by phone regarding the mortgage. The Tribunal is of the view at least some of these tasks would need to be undertaken during the day. It notes Dr Narozny’s evidence that he understood the Applicant drove herself to her medical appointments and drove and accompanied YC to his. He indicated the Applicant attended six face-to-face appointments for herself in the previous year including attending the clinic for vaccinations. On the basis of his oral evidence there was no record of her failing to attend medical appointments since 2016, but occasionally she has not been able to attend appointments at 9:00 AM or 10.45 AM, and she tends to have afternoon appointments.[41] He estimated she lives about 12 kilometres from the clinic, about 16 minutes’ drive.[42] When asked if he has any concerns about her driving given her claims to be so fatigued that she needs to rest, he stated there was only once he was concerned that she could not drive, in 2019, when she was particularly fatigued.[43] Otherwise he has not thought she was not safe to drive. He did not have concerns that the Applicant’s conditions have caused her to not be able to attend to her disabled son’s needs.[44] The Applicant also gave evidence that she sees four other GPs and sees a GP every other week.[45] Some are closer than Dr Narozny’s surgery; some are further away.[46]

    [41] Transcript of proceedings, 27 February 2023, pp 26-27.

    [42] Ibid, p 26.

    [43] Ibid, p 28.

    [44] Ibid.

    [45] Transcript of proceedings, 28 February 2023, p 109.

    [46] Ibid, p 126.

13. The Tribunal also heard from Ms Scales, that she understood the Applicant drove to her three daytime appointments, a distance she estimated to be 20 to 30 minutes from the Applicant’s home. (It notes however Ms Scales saw the Applicant resting in her car after the last appointment.) It also takes into account that the Applicant drives to the shops regularly, including at times to a shopping centre which is 15 minutes from her home.[47]

    [47] Ibid,

14. At the hearing the Tribunal asked the Applicant about her apparent capacity to drive on a regular basis, and to do her daily shopping. The Applicant stated that she has cancelled many appointments.[48] However the Tribunal notes Dr Narozny’s evidence that there were no records of appointments being cancelled and Ms Scales said she attended her three appointments, the first two on time, the third only 15 minutes late.[49]  When this was put to the Applicant she stated that she still has to function because she does not have help.[50] She acknowledged however that, most of the time, she drives to her appointments.[51]

    [48] Ibid, p 109.

    [49] Ibid, p 79.

    [50] Ibid.

    [51] Ibid,

15. The Tribunal also notes the Applicant is the carer of several pets and has taken into account the care she provides to her animals.

16. The Applicant has asserted that she seizes up and needs someone to assist her to get out of bed and that some days she does not sit up and stays in bed all day. However when challenged about this claim she admitted that she does in fact get up to go to the toilet without assistance. The Applicant also told Ms Scales that she is too fatigued to eat large meals so she just snacks throughout the day. The Tribunal observed the Applicant snacking throughout the hearing, which she confirmed. She showed the Tribunal that she was eating celery, carrot sticks and hummus. She indicated this is her eating pattern. The Tribunal is of the view this eating pattern suggests she would not be staying in bed all day as her evidence does not suggest there is someone at home during the day to assist her prepare these snacks. The Tribunal is of the view these are examples of the Applicant’s willingness to embellish her evidence. It does not accept that the Applicant seizes up and needs assistance to get out of bed some days.

17. Overall the Tribunal is not satisfied the Applicant spends four days a week, or 80% of her time, in bed. It has concerns that the Applicant has embellished her evidence regarding her fatigue and the time she needs to rest. This raises concerns for the Tribunal about the weight it can give her self-reporting to Ms Atkinson, Ms Scales and Ms Jodrell.

18. The Applicant has claimed to not be able to purchase more than one grocery item at a time and that she does not have informal supports or anyone else to help her. She has claimed she cannot cook meals, and that she is too fatigued to eat large meals, so she just snacks throughout the day. Dr Narozny told the Tribunal that tests to check the cause of her persistent fatigue have not identified any vitamin deficiency, except for one occasion when the Applicant had low iron.[52] The Tribunal also noted the Applicant appears to be of normal weight, as she has a normal BMI of 24.42.[53]

    [52] Transcript of proceedings, 27 February 2023, p 27.

    [53] JTB, p 977.

19. In relation to this, the Applicant stated she always has chickpeas in the cupboard. The Tribunal inquired about this as the Applicant had previously indicated that she could not carry groceries, did not purchase groceries online and had nobody to assist her with shopping. Initially she stated “they’ve been in there for a long time. So there’s chickpeas and lentils. I may have bought them if I’m able to on a day (when) the fatigue may not have been so bad.”[54] When the Tribunal noted that the Applicant had previously stated she can only pick up one or two items from the front of the shop, she stated: “There’s lots of other things that we all buy… in our grocery shopping.”[55] When the Tribunal inquired about the purchase of necessary grocery items, the Applicant stated “I’ve got my daughter to buy them when she’s going shopping… (YC’s) dad may have picked up a couple of things, like, for me that I need…”[56] The Applicant also admitted that her daughter makes healthy food for her and she eats nuts, pulses and has protein powder.[57] The Applicant also indicated her daughter sometimes collects her prescriptions for her.[58]

    [54] Transcript of proceedings, 28 February 2023, p 107.

    [55] Ibid.

    [56] Ibid.

    [57] Ibid, p 108.

    [58] Ibid, p 124.

20. The Tribunal is of the view this evidence is relevant because the Applicant has been emphatic at different times that she has nobody to help her and she supports YC on her own, and that her husband visits YC only “to say hello but does nothing else. I don’t have informal supports to help me”. These claims are inconsistent with the Applicant’s oral evidence that, in fact, her daughter and her husband do help her. The inconsistencies in the Applicant’s evidence regarding the support she receives from her daughter and her husband raise concerns for the Tribunal as to whether her evidence is reliable.

21. The Applicant told the Tribunal that she separated from her husband, from whom she is not divorced, in 2017 and claims to not know where he lives.[59] She stated however that she and her husband continue to own the house in which she lives, although she claimed she would be seeing a lawyer the following Wednesday about what she can do about this. She indicated the house is still mortgaged and up until recently, when her husband lost his job, he was paying the mortgage.  

    [59] Ibid, p 101.

22. The Tribunal warned the Applicant about incriminating herself in answering questions about her relationship with her husband, given she is in receipt of Centrelink payments based on her separated status. It asked if there had been any reconciliation with her husband since 2017. She denied this. It asked if she had had another partner since separating in 2017. She denied this. The Tribunal drew to the Applicant’s attention medical evidence in the joint bundle which recorded that she consulted a sexual health counsellor in January 2019 about the impact her symptoms were having on her intimate relationship with her husband.[60] The Tribunal read to the Applicant the relevant information, a letter from Dr Sally Murray, Sexual Health Consultant, dated 10 January 2019, as follows:

    I have also referred her to Carl Graham, clinical psychologist at Fiona Stanley Hospital to see if he is able to provide input on her chronic pain management given her other co-morbidities and the multiple stressors evident in her life.  He will hopefully also be able to address the impact her symptoms are having on her intimate relationship with her husband.[61]

    [60] JTB, pp 1046-1047.

    [61] Ibid, p 1047.

23. The Tribunal explained that the information may be relevant because inconsistencies in her evidence about her relationship may influence the weight the Tribunal gives to her evidence. When asked if she wanted to see the document first, the Applicant said she did not need to see it. She indicated there was a short period of reconciliation but there were problems in the marriage.[62] She claimed that in 2017 she could not cope, she had a breakdown and she went back to the UK. The Tribunal raised with the Applicant that it had asked her if there was any reconciliation and she denied this. The Applicant indicated she did not think she ever got back with him; “it was a case of seeing if things were okay”[63]. She then denied being with him or having help from him, despite her earlier evidence discussed below that she travelled with him to Adelaide and the USA, and her evidence that he shops for her.

    [62] Transcript of proceedings, 28 February 2023, p 135.

    [63] Ibid.

24. The Tribunal explained to the Applicant that in her September 2020 statement of lived experience she stated she has carer burnout because she has been attending to YC’s needs alone 24/7 for the last two years since separating from her husband and she claimed to have no-one to help her. She also claimed her ex-husband visits YC to say hello but does nothing else. It noted however the following evidence provided to the Tribunal:

    ·     her husband travelled to Adelaide with the Applicant and YC for three weeks on three occasions[64];

    ·     he travelled to the USA with the Applicant and son (and daughter) from 10 December 2019 to 2 January 2020[65];

    ·     he drives and shops for her, based on her oral evidence[66]; and

    ·     Dr Narozny’s evidence that her husband is involved in YC’s care.[67]

    [64] JTB, p 319; Transcript of proceedings, 28 February 2023, pp 135-136.

    [65] Applicant’s Email to the Tribunal dated 3 March 2023.

    [66] Transcript of proceedings, 28 February 2023, p 136.

    [67] Transcript of proceedings, 27 February 2023, p 26.

25. With respect to the Adelaide trips the Applicant stated that she asked him to help and he was more amenable at the time.[68] She claimed however that in 2021 she had to call the police to remove him from the house.[69] The Tribunal noted however that the Applicant has travelled with him on several occasions and, contrary to her claim that she has nobody to help her, she has admitted he helps her by buying groceries. She stated he has borderline personality disorder, so he can be okay and helpful but then he can be abusive and she has to call the police.[70] The Tribunal has taken this explanation into account, and accepts the Applicant may have relationship issues, but it is not satisfied it explains the inconsistencies in her own evidence about the support her husband has provided. This raises concerns about the reliability of her evidence.

    [68] Transcript of proceedings, 28 February 2023, p 136.

    [69] Ibid, p 135.

    [70] Ibid, p 136.

26. The Tribunal noted Dr Narozny’s oral evidence that the Applicant was prescribed, by a pain specialist at Fiona Stanley Hospital, Memantine Hydrochloride in November 2022, a medication known to assist with pain. Dr Narozny stated it is a new drug, commenced on 9 November 2022.[71] It was prescribed to the Applicant because she had tried various treatments and medications with little success. He explained that it is a relatively new form of treatment for pain with central sensitisation, believed to be the leading factor in the pain experienced by people with fibromyalgia. He stated, from the hospital’s documentation, there appears to be evidence that it is helpful for people with chronic pain syndromes and reduces their overall pain levels.[72] The Tribunal noted however that the Applicant was not taking the medication. Dr Narozny stated that he prescribed it for her on 9 November 2022 but she contacted his surgery on 29 December 2022, saying she could not find the prescription.[73] He stated “it would appear that she had not started the medication as yet”.[74]

    [71] Transcript of proceedings, 27 February 2023, p 22.

    [72] Ibid.

    [73] Transcript of proceedings, 27 February 2023, p 32.

    [74] Ibid, p 33.

27. On this issue, the Applicant indicated she had asked about this prescription and “(Dr) Narozny have done a normal script to be picked up for me for this Memantine, which…went missing… I asked them where it was and they said that they’d lost it. It wasn’t myself that lost it, they did, so I asked them to redo another one. The receptionist couldn’t find it.” They redid the prescription and she picked it up at the end of December 2022.

28. The Tribunal asked the Applicant why she had not commenced taking Memantine in November 2022, given the drug showed promising results for people with chronic pain. The Applicant stated:

    Firstly, I’ve been told that, I don’t know how many times about every drug that I’ve been offered…(t)his is great for fibromyalgia. It’s a promising drug. We want to get you trying that…I’ve been told this for years and years of every drug...I have tried over and above what Dr Narozny has come up with. As he said yesterday, I have tried to contact other GPs to try and help my condition…I have gone over and above.  I’ve done hydro sessions. I’ve done graded exercise. I’ve done CBT for 7 years...you name it, I’ve done it. Reiki. I’ve tried alternative. I’ve gone to see a herbalist…I have tried my best to fix my pain and fatigue…The lignocaine and the ketamine infusions were private and they were 300 and something dollars each. I’m not going to do that if I’m a malingerer. I’m going to do that because I want my pain gone. I want quality of life.[75]

    [75] Transcript of proceedings, 28 February 2023, p 110.

1. The Applicant has claimed that there are days when she seizes up, cannot get out of bed and needs someone to assist her to get out of bed. However, when asked how she toilets on those days, she admitted she gets herself out of bed. The Tribunal has taken into account Ms Jodrell’s evidence that the Applicant reported to her that she is able to roll over, sit up and get out of bed independently, and that she can transfer to and from a chair. She was observed during the hearing transferring to and from her couch to a seat at a table. She described going to the shops on a regular basis, independently getting in and out of her van. The Tribunal is satisfied the Applicant is able to get out of bed, a chair and her van independently, even on days when she claims she seizes up.

2. The Applicant has indicated that she cannot undertake activities that require her to lift her arms above her head so she cannot, for example, wash her hair. Ms Scales noted however that the Applicant reported that she could independently brush her hair and put on deodorant and reported that she presented at her appointments as well-groomed. With respect to this claim Ms Jodrell suggested the Applicant adopt a modified approach to washing her hair. As at the time of the hearing, the Applicant had still not adopted the suggestion. The Tribunal has considered her explanation for this, that modifications to her bathroom should be paid for by the NDIS, but it is of the view that if the Applicant could not wash her own hair, she would have tried the suggested modifications to achieve this. The Tribunal also notes and accepts that the Applicant drives for 30 minutes at a time. Ms Jodrell’s gave evidence that holding arms up to drive can be fatiguing. The Tribunal has some doubt about the Applicant’s claim to not be able to raise her hands above her head or arms above shoulder height. However on the basis of Ms Jodrell’s report it accepts that doing this repeatedly may cause fatigue.

3. The Applicant claims to have difficulties dressing, both her upper and lower body, and that she does not change her clothes once she gets out of bed. The Tribunal notes however that Ms Scales recorded that the Applicant presented at her appointments as well-groomed and reported changing her underwear daily. Initially in her oral evidence the Applicant disputed this but ultimately she confirmed she does change her underwear daily. Ms Jodrell reported that the Applicant is able to dress her upper and lower body with complete independence. The Tribunal is satisfied the Applicant is able to dress herself independently.

4. The Applicant has claimed an inability to type effectively or completely without assistive technology. She also reported reduced grip strength and pain in her hands to Ms Atkinson. The Tribunal notes however that Ms Atkinson, unlike Dr Chowalloor, did not report testing the Applicant’s grip strength. Dr Chowalloor found that the Applicant has no muscle wastage and had strong grip strength. The Tribunal observed the Applicant taking notes during the hearing, indicating she is able to use her dominant hand to write. Ms Jodrell observed the Applicant to have appropriate grasp and release to interact with objects. The Tribunal also takes into account the Applicant’s own evidence that she regularly deals with emails in relation to YC’s care. She also does her banking on her phone. While she has indicated she does not have a computer, her evidence indicates she is able to complete typing tasks on her phone. The Tribunal is not satisfied the Applicant cannot type effectively or completely.

5. With respect to other activities of daily living involving mobility, the Applicant has claimed that she cannot prepare meals because she cannot stand for prolonged periods. Ms Jodrell accepted the Applicant may need physical support to prepare a meal. Ms Atkinson suggested she should trial a perching stool in the kitchen. There is no evidence before the Tribunal that the Applicant has trialled a stool. In any case the Tribunal is of the view a perching stool is a commonly used item. It is satisfied, based on Ms Atkinson’s report, that this may increase the Applicant’s functional capacity in the kitchen. It notes the Applicant’s evidence that she manages to prepare meals by warming up frozen meals, eating foods such as chickpeas and salads, which do not require cooking, and snacking. The Tribunal finds the Applicant is able to prepare simple meals for herself. It accepts however Ms Jodrell’s view that the Applicant may need assistance in the kitchen to prepare a full meal.

6. The Tribunal has considered the Applicant’s evidence that she cannot hang out and remove washing from the clothesline. She did report however that, while she had difficulty doing her laundry, she does it once a week. The Tribunal notes the Applicant’s circumstances are such that the washing needs to be done more frequently because of YC’s disabilities which result in incontinence. It accepts Ms Jodrell’s view that the Applicant needs assistance with laundry, particularly given YC’s incontinence.

7. The Applicant also claims not to be able to remove clothes from hangers. This was not explored in any depth at the hearing. The Tribunal notes however that Ms Atkinson recommended further assessments for equipment to assist with such limitations. The Tribunal considers the recommended equipment to be commonly used items. There is no evidence before the Tribunal to confirm the Applicant has undergone such assessments and trialled the use of the recommended equipment.

8. The Applicant has claimed that she cannot undertake a full grocery shop because her pain prevents her from moving around the shop, lifting items off the shelf and carrying groceries. Ms Jodrell recorded that, when she suggested shopping online, the Applicant said she “can’t be bothered and likes the opportunity to interact and see other people”. The Applicant denied this. She has claimed that when she tried to shop online she had difficulties locating the items she wanted. The Tribunal notes however that the Applicant has claimed to do her banking online, to deal with emails in relation to YC’s therapies, and to access social media. It also notes her report to Ms Jodrell that her social interaction is limited and she rarely goes out apart from visiting shops. While Ms Jodrell has suggested a wheelchair for exertion “over 250 metres, (on an outing for example)”[102] to avoid fatigue, the Tribunal notes the Applicant has been able to shop without such assistance. It also notes Ms Jodrell suggested a seated walker which the Applicant has not trialled. Considered overall, the Tribunal is not satisfied the Applicant’s impairment prevents her doing light grocery shopping.

   [102] JTB, p 369.

9. The Applicant has claimed an inability to drive effectively or completely without assistive technology. The Tribunal notes however that the Applicant drives on a regular basis, to and from the shops and to medical appointments. It has taken into account her evidence that on some days she cannot drive, but Dr Narozny’s evidence indicates there was no pattern of the Applicant cancelling appointments or notes that she did not attend. Her evidence also indicated she drives to the GP every other week and to the shops most days. She has also given evidence that she assists YC to get in and out of her van when she drives him to his appointments. At the hearing the Tribunal asked Dr Narozny if he has concerns about the Applicant driving. He referred to concerns raised in Ms Jodrell’s assessment but indicated there was only once, in December 2019, when he was concerned because of a flare up of fatigue. Apart from that one occasion he has never felt she would be unsafe to drive home. The Tribunal notes Ms Jodrell’s concern was in response to the Applicant self-reporting that she is so fatigued between 3:00 PM and 6:00 PM that she is not safe to drive and needs to pull over.[103] Dr Narozny told the Tribunal that the Applicant’s appointments tend to be after midday between 12:00 PM and 3:00 to 4:00 PM. Occasionally she has been unable to attend appointments in the morning and it seemed to him she prefers the afternoons. Given Dr Narozny has been able to make an informal assessment in person of the Applicant’s capacity to drive, after she has driven to his surgery, including in the afternoon, the Tribunal prefers his evidence. It is not satisfied the Applicant’s impairment prevents her driving.

   [103] JTB, p 361.

10. The Applicant reported to Ms Atkinson in 2019 that she had near-miss falls in the previous three months, predominantly in the shower. However, when assessed two years later, Ms Jodrell reported that on the Berg Balance Scale, the Applicant’s score placed her in a low falls risk category. The Applicant reported low confidence in her balance but admitted she had not had any recent falls. The Tribunal is satisfied the Applicant is not at risk of falling.

11. The Tribunal notes the Applicant’s evidence that she provides care to YC who has significant impairments, and this requires her to prepare him thickened fluids, assist him with showering, and change his nappy. She has also travelled overseas with him twice and to Adelaide three times for three weeks at a time for therapy. It accepts YC is her first priority and that she provides this care even when she is fatigued by pain. However, it notes her impairments of pain and fatigue have not reduced her mobility such that she has not been able to provide this significant care and support, including long distance travel.

12. The Applicant has claimed that she cannot effectively, safely or completely, without assistive technology or equipment assistance, complete housework such as vacuuming, mopping and cleaning. The Tribunal notes the Applicant reported to Ms Jodrell that she can complete some basic housework such as tidying, wiping down benchtops and like tasks - it is the heavier duties she cannot complete. The Tribunal accepts the Applicant cannot complete heavy housework.

13. Overall, having considered what the Applicant can and cannot do, the Tribunal accepts the Applicant may require assistance, to prepare a full meal, with heavier housework and with laundry. The Applicant has indicated that she provides 24/7 care to YC, attends to all his therapy needs and appointments. The Tribunal is of the view the assistance the Applicant requires is in part a consequence of YC’s needs and the fatigue she experiences as a result of caring for him, and not only because of her own impairments. Overall, while it accepts she requires assistance to prepare full meals and complete heavier housework and laundry, it is not satisfied she needs a high level of support from other people with respect to mobility as a result of her impairment. Considered overall, the Tribunal is not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to mobility.

    Self-care

14. The Operational Guideline with respect to self-care currently states 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.

15. The Applicant has claimed that pain and fatigue impact on her ability to dress, shower, brush her teeth, and complete household chores such as food preparation, cooking and gardening.[104]

    [104] Applicant’s Closing Submission, filed on 5 April 2023.

16. The Applicant has not claimed that she cannot toilet, eat and drink independently. In her report Ms Jodrell concluded, based on various assessments and the Applicant’s self-reporting, that the Applicant is independent in virtually all aspects of personal care, including toileting, showering, dressing and undressing, grooming, eating, drinking and medication management. The Tribunal accepts Ms Jodrell’s conclusions on these activities.

17. For the reasons given above the Tribunal has found that the Applicant is able to dress her upper and lower body.

18. The Tribunal has considered the Applicant’s evidence that she is unable to shower. It notes Ms Jodrell’s evidence that the Applicant reported she does in fact shower but infrequently, once a fortnight, as she “has no motivation to shower regularly as she rarely goes out”. The Applicant admitted in her statement of lived experience that she can bathe and shower herself but does not on most days as she does not have the energy. To manage her fatigue, she will sit on YC’s shower chair (which she finds is not set at the correct height to facilitate her transfers). Ms Jodrell formed the view no support for self-care was indicated but recommended the Applicant use an appropriately heighted shower chair to facilitate transfers, minimise effort and ensure safety.

19. Ms Scales recorded that the Applicant has a hand-held shower head in her bathroom. At the hearing the Applicant claimed it is difficult to use and it needs adapting, but she has not done this because “I don’t have the funding to adapt it. That’s what the NDIS is about.” She stated a project manager would be visiting her home to adapt a wet room for YC. Having considered all the evidence, including the Applicant’s self-reporting, the Tribunal is satisfied the Applicant has a hand-held shower head in her bathroom. Ms Scales did not report that the Applicant had difficulty using it; rather her reason for not showering was fatigue. It does not accept she cannot use the hand-held shower for herself. The Tribunal is not satisfied the Applicant’s irregular showering is because of any difficulty using her hand-held shower. The Tribunal is satisfied that the Applicant is able to shower with the assistance of a shower chair, using her hand-held shower. It is of the view she would benefit from the use of an appropriately heighted shower chair, a commonly used item. The Tribunal takes into account the Applicant’s evidence about her responsibilities as the primary carer of YC, a severely disabled child, impacting on her fatigue and her prioritising his care over own self-care. It is of the view that these significant responsibilities exacerbate her fatigue and have an impact on the frequency of her showering.

20. The Applicant has stated she has difficulties brushing her teeth. It is unclear to the Tribunal why she is making this claim. Dr Chowalloor noted the Applicant’s grip strength was normal. Ms Jodrell concluded the Applicant is independent in virtually all aspects of personal care. The Tribunal notes the Applicant’s capacity to drive for 30 minutes indicates she has the strength to hold her arm up to clean her teeth, as Ms Jodrell gave evidence that holding arms up to drive can be fatiguing. The Tribunal is not satisfied the Applicant’s impairment prevents her brushing her teeth.

21. Ms Jodrell observed the Applicant is able to make and attend medical appointments and manage her own medication independently. The Tribunal notes the Applicant was able to give, in her oral evidence, a comprehensive summary of all the medications and treatments she has received.[105] The Tribunal is satisfied the Applicant manages her own health care and medication regimes, which includes going to a GP every other week.

    [105] Transcript of proceedings, 28 February 2023, p 110.

22. The Tribunal notes Ms Scales recorded that the Applicant could independently brush her hair and presented at her appointments as well-groomed. She told the Tribunal in her oral evidence that the Applicant’s hair was in a ponytail at her appointments and looked as if it had been brushed. After Ms Scales gave this evidence the Applicant’s disability advocate, in her questions to Ms Scales, indicated that the Applicant’s daughter had brushed her hair. The Applicant then told the Tribunal that her daughter assisted with her grooming because she lived with her. The Tribunal has taken this into account but notes this is not reflected in Ms Scales’ report. It clearly states the Applicant could independently brush her hair. Ms Scales also recorded that the Applicant reported that she has limited informal supports. The Tribunal has some concerns that the Applicant has introduced the evidence that her daughter brushed her hair to overcome Ms Scales’ record of her self-reporting that she could brush her hair independently. It is not satisfied that the Applicant cannot brush her hair independently.

23. The Tribunal has considered the Applicant’s claim that she cannot garden. It asked her about her garden at the hearing. She said she has a large overgrown garden with various plants and no-one was looking after the garden. Ms Jodrell indicated the Applicant would benefit from assistance with gardening and the Tribunal accepts this is the case.

24. Other aspects of self-care involving food preparation and housework are addressed above.

25. The Tribunal is satisfied the Applicant may need a shower chair to shower independently however it considers this to be a commonly used item. It is satisfied she is otherwise independent in other aspects of self-care such personal care, hygiene, grooming, eating and drinking, and health. It is satisfied she can get dressed, shower, eat and toilet independently.  It accepts that the Applicant may not be able to do the gardening. However it is not satisfied that her inability to attend to her large, overgrown garden demonstrates her impairments result in a substantially reduced functional capacity to undertake self-care.

26. Overall, the Tribunal is not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to the self-care activities listed in the Operational Guideline; personal care, hygiene, grooming, eating and drinking, and health. It is not satisfied the Applicant’s impairments result in a substantially reduced functional capacity to undertake self-care.

    Self-management

27. The Operational Guideline with respect to self-management relevantly states as follows:

    Self-management – 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.

28. The Applicant has claimed that she has substantially reduced functional capacity to undertake self-management tasks. Ms Scales reported that this is the consequence of chronic pain, fatigue and cognitive issues such as expressive language difficulties, impaired memory, attention and focus, delayed processing and impaired executive function.

29. With respect to the Applicant’s claim to have cognitive dysfunction, the Tribunal notes the Applicant deals with the bank regarding the mortgage and is trustee of her son’s trust. She also acknowledged to the Tribunal that she did the research on fibromyalgia and found the articles provided with her review application. The Tribunal notes the Applicant’s answers to questions asked at the hearing were particularly detailed. For example, in response to a question about the prescription of Memantine the Applicant gave a comprehensive, chronological description of the various medications and treatments she has undertaken in an effort to ameliorate her condition.[106] The Tribunal has considered the detail provided by the Applicant, in this and other responses, and has formed the view they indicate she understood the questions and was able to provide detailed, coherent answers. 

    [106] Transcript of proceedings, 28 February 2023, p 110.

30. The Tribunal notes Ms Jodrell’s oral evidence[107] that, on her assessment, she found the Applicant to be cognitively functioning suitably, to answer all the questions. She noted she was able to concentrate on the topics raised.  When asked if there was any evidence of impairment of cognitive function whilst assessing the Applicant, she stated she thought the Applicant was lucid, appropriate in her answers, and appeared to have good understanding and processing of information.[108] She found the Applicant to be a good respondent to the assessment and observed no dysfunction. She observed that when she asked the Applicant a question, she looked at her, responded, used appropriate sentence structure, and seemed to have good insight.[109] Ms Jodrell found her presentation to be good.

    [107] Transcript of proceedings, 27 February 2023, p 38.

    [108] Ibid.

    [109] Ibid.

1. The Tribunal also notes, when asked about the Applicant’s functional capacity, Dr Narozny stated “when (the Applicant is) severely fatigued or in a lot of pain – (she has) found it difficult to focus and I have found myself having to repeat instructions and at times write them out for (her) to ensure that (she was) understanding what we were about to endeavour on in regards to any treatment or investigations.”[110] The Tribunal accepts that when the Applicant’s symptoms are exacerbated and she is severely fatigued and in a lot of pain, she may have some difficulty comprehending treatment plans and medical terminology, however it is not satisfied, in the absence of any formal assessment, that the Applicant has cognitive dysfunction or impairment.

   [110] Ibid, p 18.

2. As an example of reduced functional capacity in self-management, the Applicant has claimed that she could not find her car in a large carpark for an hour.[111] It was raised with her that this suggested she could walk further than she claimed. She indicated she might park on one side of a shopping centre but use the facilities situated on the other side of the shopping centre. She claimed this happened again recently when she went blank and could not remember where she parked. She confirmed she was able to find her car by walking to the other side of the car park. The Tribunal has considered this evidence but is not satisfied it demonstrates the Applicant has reduced functional capacity in self-management. It is not satisfied forgetting where she parked occurs regularly.

   [111] Transcript of proceedings, 28 February 2023, p 114.

3. The Applicant admits to improved functioning at night, when she answers emails and undertakes other self-management tasks. On her own evidence she manages banking, YC’s trust, car maintenance, shopping, her medical appointments, and contact with council and charities to seek supports for YC. The Tribunal is of the view this indicates her impairments do not result in substantially reduced functional capacity in the self-management domain. It notes there have been no formal cognitive assessments undertaken. In the absence of such, given its other findings on this claim, it is not satisfied the Applicant suffers cognitive dysfunction, or any other impairment, that results in substantially reduced functional capacity to undertake self-management tasks.

   Other activities

4. In her closing submissions the Applicant has not claimed that her impairments result in a substantially reduced functional capacity to undertake communication, social interaction and/or learning. However, the Tribunal has considered each of the remaining specified activities to avoid any doubt with respect to whether the Applicant meets the requirements of paragraph 24(1)(c) of the Act.

   Communication

5. The Operational Guideline with respect to communication currently states 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

6. Ms Scales recorded that the Applicant reported when she is extremely fatigued she has difficulties with expressive language, causing problems with participating in extended and complex conversations, and that she avoids phone calls and social interaction when severely fatigued.[112] Having regard to Dr Narozny’s concern that he observed extreme fatigue once in 2019, it is not satisfied the Applicant suffers extreme fatigue on a regular basis.

   [112] JTB, p 234.

7. The Tribunal is of the view it is appropriate to consider the Applicant’s functional capacity overall, rather than when she is severely fatigued. It notes that the Applicant was able to express herself clearly during her assessments with Ms Jodrell, Ms Scales and Ms Atkinson, as demonstrated by the detail she provided. Ms Jodrell reported that the Applicant maintained appropriate verbal communication during her assessment and assessed her as having complete independence in the communication domain. The Tribunal observed that she was able to provide comprehensive responses to questions asked at her hearing. It also takes into account her evidence that she speaks with family on the phone on a regular basis, deals with emails regarding YC’s supports, and had input into the preparation of her own statements of lived experience. The Tribunal accepts that there may times, when the Applicant is extremely fatigued, that she has difficulty remembering words and she avoids communication. Dr Narozny’s evidence indicates this does not happen often. Overall, the Tribunal is not satisfied the Applicant has a substantially reduced functional capacity to undertake communication activities.

   Social interaction

8. The Operational Guideline with respect to social interaction currently states as follows:

   Social interaction - 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.

9. Ms Scales recorded that the Applicant avoids social interaction because of her fatigue and pain, as she knows she will have difficulty communicating with others.[113] She has also prioritised her commitments in her life, such as caring for YC, completing household tasks and attending medical appointments.[114] She noted the Applicant has limited opportunities to socialise.[115] Ms Jodrell noted that the Applicant rarely goes out and does not have a best friend. She formed the view the Applicant is at risk of social isolation. She concluded that the Applicant is able to interact socially but does not have the opportunity. The Tribunal notes the Applicant’s oral evidence that she has regular contact with family members, indicating she is able to maintain relationships. There is no evidence before the Tribunal to indicate the Applicant’s behaviour is not appropriate in social situations. Overall the Tribunal is not satisfied the Applicant has a substantially reduced functional capacity to undertake social interaction activities.

   Learning

   [113] JTB, p 234.

   [114] Ibid.

   [115] Ibid.

10. The Operational Guideline with respect to learning currently states as follows:

    Learning – how you learn, understand and remember new things, and practise and use new skills.

11. With respect to this domain Ms Scales recorded that the Applicant was not orientated to date and day. The Applicant also reported that she had difficulty locating her car within a large car park, recalling the placement of medical documents and locating general items in her home. The Tribunal has some reservations about accepting that the Applicant was not orientated to date and day given the evidence from Dr Narozny and Ms Scales herself that, in the main, the Applicant attends her appointments on the scheduled day and time. The Tribunal also takes into account the Applicant’s evidence that she manages her own affairs and YC’s support needs using her phone, demonstrating her capacity to adapt to technology and practise new skills. It notes Ms Jodrell’s assessment that the Applicant has the capacity for new learning. Overall the Tribunal is not satisfied the Applicant has a substantially reduced functional capacity to undertake learning activities.

    CONCLUSION

12. For the reasons given above, the Tribunal finds the Applicant’s impairments do not result in substantially reduced functional capacity to undertake any of the specified activities (mobility, self-care, communication, social interaction, learning, and/or self-management) as required by paragraph 24(1)(c) of the Act.

13. Accordingly, the Applicant does not meet a mandatory provision of the disability requirements and so it is not necessary to consider whether her impairments affect her capacity for social or economic participation (paragraph 24(1)(d)), or whether she is likely to require support under the NDIS for her lifetime (paragraph 24(1)(e)).

14. While the Tribunal is not satisfied the Applicant’s impairments result in a substantially reduced functional capacity to undertake any of the specified activities, it accepts that she has impairments which impact on her functional capacity. It also accepts that she has extra demands placed on her because of YC’s needs. However, the Tribunal is of the view the extra work generated for the Applicant by YC’s disability should be addressed in his plan.

15. As the Applicant has not met the disability requirements set out in section 24 of the Act, and does not claim to meet the early intervention requirements set out in section 25 of the Act, she does not meet the access criteria under section 21 of the Act.

    DECISION

16. The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding two hundred and thirty-two (232) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. Connolly

.....................................[SGD]...................................

Associate

Dated: 4 May 2023

Date(s) of hearing:	27 and 28 February 2023
Date final submissions received:	4 April 2023
Advocate for the Applicant:	Ms G Bye, non-legal advocate
Solicitors for the Respondent:	Ms D Parra, National Disability Insurance Agency