Peters and National Disability Insurance Agency (NDIS) - [2025] ARTA 2053

Peters and National Disability Insurance Agency (NDIS) [2025] ARTA 2053 (14 October 2025)
Applicant/s:  Josephine Peters
Respondent:  National Disability Insurance Agency
Tribunal Number:                2023/8578

Tribunal:General Member L Proske
Place:Adelaide
Date:14 October 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 14 October 2025 at 4:17pm
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – disability requirements – substantially reduced functional capacity – likely to require support under the NDIS for lifetime – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Administrative Review Tribunal Act 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Cases
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC, 11
Re Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
NRNK and National Disability Insurance Agency [2024] AATA 110 (15 January 2024)
Morris and National Disability Insurance Agency [2024] ARTA 186 (27 November 2024)
Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607 (26 May 2025)
Brickhill and National Disability Insurance Agency [2025] ARTA 707 (11 June 2025)
Secondary Materials
NDIS, Applying to the NDIS – Pre-legislation changes updated 14 October 2024
Statement of Reasons

Dr Peters (Applicant) is 67 years old. She lives with her husband (Mr Dawson) and works part-time as a general practitioner. The Applicant has applied to the Tribunal for review of a decision made by the CEO of the National Disability Insurance Agency (Respondent). That decision confirmed an earlier decision made by the Respondent that the Applicant did not meet the access criteria to become a participant of the National Disability Insurance Scheme (NDIS).
For the reasons below, the Tribunal has determined the Applicant does not meet the access criteria to become a participant of the NDIS.
BACKGROUND AND JURISDICTION
The Applicant made an access request to become a participant of the NDIS. On 29 May 2023, a delegate of the CEO of the Respondent determined that the Applicant did not meet the access criteria for the NDIS (original decision).[1] On 24 August 2023, the Applicant requested that the original decision be reviewed by a reviewer.[2]
[1] Exhibit 1 (E1), 87.
[2] E1, 73.
On 21 October 2023, a reviewer confirmed the original decision (internal review decision).[3] On 16 November 2023, the Applicant made an application to the Administrative Appeals Tribunal (AAT) for review of the internal review decision.[4] The AAT had jurisdiction to review the internal review decision under s 103(1) of the National Disability Insurance Scheme Act 2013 (NDIS Act), in combination with s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act).[5]
[3] E1, 51.
[4] E1, 47.
[5] All sections referred to in this Statement of Reasons, including in the footnotes, are sections in the National Disability Insurance Scheme Act 2013 (NDIS Act) unless otherwise stated.
The Administrative Review Tribunal (ART) was established on 14 October 2024 and replaced the former AAT.[6] The Applicant’s review application was not finalised before the transition to the ART. Proceedings in the AAT that were not finalised before the transition to the ART must be continued and finalised by the ART.[7] In this Statement of Reasons, the ART will hereafter be referred to as ‘the Tribunal’.
[6] Administrative Review Tribunal Act 2024, s 8.
[7] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
LEGISLATION AND POLICY
The Applicant must meet the access criteria in s 21(1) to become a participant of the NDIS. In summary, s 21(1) provides that a person meets the access criteria if they meet the age requirements in s 22; the residence requirements in s 23; and either the disability requirements in s 24 or the early intervention requirements in s 25.
It is not in contest between the parties, and the Tribunal is similarly satisfied, that the Applicant meets the age and residence requirements in ss 22 and 23.[8] The Applicant does not contend that she meets the early intervention requirements in s 25.[9] The issue for determination by the Tribunal is therefore whether the Applicant meets the disability requirements in s 24.
[8] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [11].
[9] Applicant’s Statement of Facts, Issues and Contentions (ASFIC), [3.2]. This was also confirmed by counsel for the Applicant in opening submissions and closing submissions.
Section 24 provides:
24  Disability requirements
(1)A person meets the disability requirements if:
(a)   the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)   the impairment or impairments are, or are likely to be, permanent; and
(c)   the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self‑care;
(vi)self‑management; and
(d)   the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)   the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4)     Subsection (3) does not limit subsection (2).
Under s 209(1) the Minister may make rules prescribing certain matters. Relevant to this application, the Minister has issued the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Access Rules), which form part of the legislation.
Operational Guidelines published on the NDIS website contain information about what the Respondent considers when making decisions under the legislative framework. These are essentially policy documents. The Operational Guideline ‘Applying to the NDIS’ (Access Guideline) last updated 14 October 2024 is relevant to this application. The Tribunal will take this into account unless there are cogent reasons not to.[10]
[10] Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420.
EVIDENCE AND SUBMISSIONS
An agreed joint tender bundle was filed with the Tribunal. That joint tender bundle included the T-Documents filed by the Respondent in accordance with s 37 of the AAT Act, and evidence filed by the Applicant and the Respondent during the review. The joint tender bundle was received into evidence at the hearing, marked ‘Exhibit 1’.
The following documents were also received into evidence at the hearing:
a)    Respondent’s supplementary hearing bundle, marked ‘Exhibit 2’.
b)    Applicant’s supplementary hearing bundle, marked ‘Exhibit 3’.
c)    Applicant’s My Aged Care application dated 27 March 2025, marked ‘Exhibit 4’.
d)    Applicant’s My Aged Care Online Account ‘Summary’ dated 14 August 2025, marked ‘Exhibit 5’.
An in-person hearing was held on 14 and 15 August 2025. Mr Nicholas Healy appeared as counsel for the Applicant, and Ms Matoula Makris appeared as counsel for the Respondent. The Applicant, Mr Dawson, Dr Jill Maxwell (Dr Maxwell) and Ms Emma Johnson (Ms Johnson) gave oral evidence at the hearing.
The Respondent filed a Statement of Facts, Issues and Contentions (Respondent’s SFIC) dated 5 March 2025. The Applicant filed a Statement of Facts, Issues and Contentions (Applicant’s SFIC) dated 11 April 2025. Counsel for the Applicant and the Respondent each made opening and closing submissions at the hearing.
The Tribunal has considered the written evidence, oral evidence, and submissions referred to above in paragraphs [11] to [14].
CONSIDERATION
The issue for determination by the Tribunal is whether the Applicant meets the disability requirements in s 24.
The Tribunal will begin by setting out the evidence as it relates to the Applicant’s impairments and treatment thereof.
The Applicant fell from a stairwell landing in March 2018.[11] She sustained bilateral intra-articular proximal humerus fractures with rotator cuff avulsion.[12] In the immediate aftermath of the fall, the Applicant underwent open reduction and internal fixation of those fractures with Mr James McLean (Dr McLean), an orthopaedic surgeon.[13] Dr Michael Henningsen (Dr Henningsen), an orthopaedic surgeon, reported that despite intensive physiotherapy and hydrotherapy following that surgery, the Applicant remained significantly impaired, in particular in relation to her dominant right shoulder.[14] He recommended she consider undergoing a right reverse total shoulder replacement.[15] Dr Nicholas Wallwork (Dr Wallwork), a shoulder surgeon, similarly reported the Applicant remained with a degree of dysfunction and disability following this surgery.[16]
[11] E1, 75, 77, 114, 117, 284, 253.
[12] E1, 75, 77, 114, 284, 259.
[13] E1, 75, 77, 116, 117.
[14] E1, 75.
[15] E1, 75.
[16] E1, 77.
In October 2018, Mr Richard Pope (Mr Pope), performed a right reverse total shoulder replacement in an attempt to maximise the Applicant’s function and decrease her pain.[17] Dr Henningsen reported the Applicant thereafter underwent intensive physiotherapy and hydrotherapy and her range of motion and strength in her right shoulder improved; but she did remain with significant weakness, instability, stiffness and symptoms of fatigue in relation to her right shoulder.[18] Dr Henningsen reported those symptoms were mirrored on the contralateral side, which whilst significant were not as severe.[19] Dr Wallwork, Mr Pope and Dr Maxwell similarly reported that the right reverse total shoulder replacement resulted in some improvement in terms of function, movement and pain.[20]
[17] E1, 75, 114.
[18] E1, 75.
[19] E1, 75.
[20] E1, 114, 235, 267, 268.
Dr Wallwork reviewed the Applicant in January 2022. He recorded the referred complaint as right shoulder acute pain post right total shoulder replacement, and reported the Applicant had recently developed sudden pain over the anterior aspect of her shoulder, which had persisted and left her very restricted.[21] Dr Wallwork recommended a CT scan and undertook to review the Applicant after that investigation.[22]
[21] E1, 114.
[22] E1, 269.
Dr Wallwork reviewed the Applicant in September 2022.[23] He recorded the referred complaint as a right shoulder subluxation episode.[24] Dr Wallwork opined the Applicant had suffered an episode of instability which has a tendency for recurrence; and recommended she avoid actions such as leaning on her elbow as well as distraction forces.[25] Dr Wallwork also reported the Applicant had persistent weakness related to her rotator cuff from a prior injury.[26]
[23] E1, 113.
[24] E1, 113.
[25] E1, 113.
[26] E1, 113.
In May 2023, Dr Maxwell reported the Applicant has bilateral impaired upper limb function due to complex fractures, chronic pain and limitation of movement.[27] At that time, those impairments were being treated with analgesic medications daily, hydrotherapy 2 to 3 times weekly, therapeutic massage fortnightly, and physiotherapy as required for pain.[28] She opined these treatments are the only available treatments; and whilst useful to ease the pain and maximise function they will not lead to any improvement.[29]
[27] E1, 84.
[28] E1, 84.
[29] E1, 85.
In June 2023, Dr Maxwell opined that in relation to the Applicant’s shoulder impairment, all available and appropriate treatment options that are likely to relieve or cure the impairment have been exhausted.[30] Dr Maxwell reported the Applicant had seen 4 shoulder specialists, and none have anything to offer her; and her only option now is to continue physiotherapy and massage to prevent progression of her disability.[31]
[30] E1, 79.
[31] E1, 79.
Dr Henningsen reviewed the Applicant in July 2023. Dr Henningsen reported:
‘Given her initial injury, treatment to date and her current examination and investigation I informed her that, in my opinion, further surgery would not have any benefit unfortunately, in fact, further surgical intervention had the probability of worsening her current function and pain. Given my review it is my strong opinion that further surgery would be deleterious to her function and my strong recommendation has been that she continues to manage her symptoms by physiotherapy, hydrotherapy and being as active as possible within the constraints of her function.’[32]
[32] E1, 76.
Following a further review in July 2023, Dr Wallwork reported:
·     The Applicant’s right shoulder continues to give her pain and discomfort; and she reported to him several episodes of a sense of subluxation with the shoulder that produce very sharp pain and restricted movement, and a sense of catching with movement.[33]
·     The Applicant remains limited from movements with her right arm. This movement has mild discomfort at best and can occasionally produce severe discomfort. [34] In her left shoulder, the Applicant reports a greater range of internal and external rotation. This shoulder similarly has pain with movement.[35]
·     In relation to her right shoulder there does not appear to be acute loosening of the implants and the joint remains enlocated and stable. At this point there is no need for further intervention or treatment. He did not believe there is a clear benefit from further operative treatment. In relation to her left shoulder, the fracture remains united, healed and stable and similarly there is no clear indication for further intervention.[36]
·     He would regard her current symptoms as stable for the purposes of assessment of her disability.[37]
[33] E1, 77.
[34] E1, 77.
[35] E1, 77.
[36] E1, 78.
[37] E1, 78.
In October 2024, Dr Maxwell responded to targeted questions prepared by the Respondent. Relevantly, Dr Maxwell’s responses included the following:
·     The Applicant has bilateral impaired upper limb function due to complex fractures. This causes severe restriction of movement of both shoulders, bilateral shoulder joint instability, bilateral upper limb pain and weakness, and paraesthesia of the right arm, resulting in inability to undertake many activities of daily living.[38]
·     Right arm and hand paraesthesia are sensory disturbances caused by the injury to the right shoulder. They are symptoms caused by the bilateral impaired upper limb function due to complex fractures. The symptoms are worse when she is using the arm and improved by therapeutic massage.[39]
·     The likely cause of paraesthesia is nerve entrapment in the shoulder area resulting from the original injury and subsequent surgery. This is not correctable – further surgery would be likely to aggravate rather than relieve the problem.[40]
·     Treatment of paraesthesia is ongoing rehabilitation and massage, in addition to ongoing strong analgesia.[41]
·     Many orthopaedic surgeons have already assessed and given opinions, no further reviews will add to the diagnosis or management of the shoulder pain, impairment or right arm and hand paraesthesia.[42]
[38] E1, 234.
[39] E1, 234, 235.
[40] E1, 235.
[41] E, 235.
[42] E1, 236.
In December 2024, Dr Maxwell responded to further targeted questions prepared by the Respondent. Relevantly, Dr Maxwell’s responses included the following:
· The Applicant’s shoulder joints no longer function as normal shoulder joints, the movements are severely restricted. The pain is a by-product of attempting to use her arms for activities of normal daily living.[43]
· The Applicant has been treated by four orthopaedic surgeons, a physiotherapist, an occupational therapist, a massage therapist, and her general practitioner. There has been communication between the parties. This constitutes a multidisciplinary chronic pain management program. There is nothing to be added by seeking alternative pain management services.[44]
[43] E1, 246.
[44] E1, 247.
At the hearing, Dr Maxwell gave oral evidence to the effect:
·     Until recently the instability had been confined to the right shoulder, but that is now happening in the left shoulder as well.
·     Pain and tingling are sequalae of the shoulder injuries. The Applicant has not been referred to a neurologist regarding paraesthesia because it is a minor symptom of the shoulder damage and not a major problem.
·     Paraesthesia is generally caused by irritation of a nerve. If arthritis was in some way affecting a nerve, it could cause paraesthesia. The applicant has minimal arthritis in her spine, feet and knee; however, the spine, feet and knee are not where the Applicant is having problems, her disabled shoulders are the problem.
·     The orthopaedic surgeons to whom she has referred the Applicant are upper limb specialist surgeons.
·     The Applicant has not been referred to a neurologist regarding her paraesthesia because that is a minor symptom of the shoulder damage and is not a major problem. There is no point asking a neurologist to provide an opinion regarding the Applicant’s paraesthesia as that is of the arm and hand and directly related to the shoulder injury, it would not make any difference.
·     With respect to her shoulder injuries, the Applicant needs allied health services (such as physiotherapy, hydrotherapy and massage) and support worker assistance to help with activities of daily living.
In a Statement of Lived Experience dated April 2025, the Applicant wrote:
‘My current disabilities, because of my upper limb impairments, result in severely restricted movement and limited function of the shoulder girdles and upper arms. My upper limbs are stiff, weak and, when moved, cause pain. They are unstable and easily fatigued. This means I can’t carry, lift, push, pull, reach or hang objects. My shoulder girdles have very limited range of movements.’[45]
[45] E1, 284-285.
At the hearing, the Applicant give evidence she has joint stiffness; there is restricted movement which is getting worse as time goes by; the weakness is getting worse and that is a big problem as she has muscle atrophy; the pain gets worse if she has not had help and tries to do things by herself; and the instability of the joints is getting worse and with that acute episodes of acute loss of function of both shoulders. It is lucky to date she has not had episodes in both shoulders at the same time.
Does the Applicant have a disability attributable to an impairment?
For the purposes of s 24(1)(a), the Tribunal must be satisfied that the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable.
The concept of ‘impairment’ is generally understood as involving the loss or damage to a physical, sensory or mental function.[46] The term ‘disability’ is used in s 24 as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life.[47]
[46] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), [51].
[47] Mulligan, [51].

The Applicant seeks access to the NDIS based on impairments attributable to bilateral intra-articular proximal humerus fractures with rotator cuff avulsion (shoulder injuries); and contends sequelae of the shoulder injuries include right upper limb and hand paraesthesia and chronic pain.[48]
[48] ASFIC, [2.1]; Applicant’s opening and closing submissions.
The Respondent accepts s 24(1)(a) is met on the following basis:
a) Physical impairments attributable to the shoulder injuries, including pain, fatigue, stiffness, lack of movement of shoulders, shoulder weakness, shoulder instability, and limited endurance with physical activities.
b) Sensory impairments attributable to upper right limb paraesthesia injury.[49]
[49] RSFIC, [29]; Respondent’s closing submissions.
In oral closing submissions, the Respondent asserted the paraesthesia is not encompassed by the shoulder injuries and is to be considered separately.
The Applicant agrees that she experiences physical and sensory impairments but asserts paraesthesia is the name for the sensory impairment, which is sequalae of her shoulder injuries.[50]
[50] ASFIC, [2.1]-[2.2], [4.4]-[4.5]; Applicant’s closing submissions.
Within the context of s 24(1)(a), the cause of the Applicant’s impairments – and indeed whether paraesthesia is separate to, or sequalae of her shoulder injuries – is irrelevant to the legal question arising, that being whether the Applicant has a disability attributable to one or more impairments.[51]
[51] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), [69].
On this point, it does not appear to the Tribunal that there is any contest between the parties, that is, the Applicant contends and the Respondent accepts she has physical impairments (those being the shoulder injuries which involve pain, fatigue, stiffness, lack of movement of shoulders, shoulder weakness, shoulder instability, and limited endurance with physical activities) (physical impairments) and a sensory impairment (that being upper right limb and hand paraesthesia) (sensory impairment). Based on the clinical evidence provided by Dr McLean, Mr Pope, Dr Henningsen, Dr Wallwork and Dr Maxwell as outlined in paragraphs [18] to [28], and the Applicant’s evidence as outlined in paragraphs [29] to [30], the Tribunal is similarly satisfied of this, and that the Applicant has a disability attributable to those physical and sensory impairments. Accordingly, the Tribunal is satisfied that the Applicant has a disability attributable to physical and sensory impairments, and the requirement in s 24(1)(a) is met.
Are the Applicant’s impairments permanent?
For the purposes of s 24(1)(b), the Tribunal must be satisfied that the Applicant’s impairment or impairments are, or are likely to be, permanent.
Rules 5.4 to 5.7 of the Access Rules provide that:
5.4 An impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
In National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) Mortimer J (as Her Honour then was) confirmed that within the context of Rule 5.4, the word ‘known’ means a treatment which can be identified by an Australian medical professional as suitable for a person’s particular impairment; the word ‘appropriate’ means a treatment which has a capacity to ‘remedy’ the impairment and is suitable for the particular individual to undergo; and the word ‘available’ means available to a particular individual.[52] The word ‘remedy’ in Rule 5.4 means something approaching a removal or cure.[53]
[52] Davis, [137]-[138]
[53] Davis, [136].
The Applicant contends her physical and sensory impairments are permanent as there are no further treatment options available for her shoulder injuries; and paraesthesia is a symptom or sequalae of her shoulder injuries.[54]
[54] ASFIC, [4.6]-[4.8]; Applicant’s closing submissions.
The Respondent accepts that the Applicant’s physical impairments are permanent on the basis that the Applicant’s shoulder injuries have been fully treated and there are no further treatment options available.[55] On the basis of evidence provided by Dr Henningson, Dr Wallwork and Dr Maxwell as outlined above, the Tribunal is similarly satisfied there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the Applicant’s physical impairments.[56] Accordingly, the Tribunal is satisfied the Applicant’s physical impairments are, or are likely to be, permanent and the requirement in s 24(1)(b) is met in relation to those.
[55] RSFIC, [37(a)]; Respondent’s closing submissions.
[56] r 5.4 Access Rules.
The Respondent contends there is insufficient evidence for the Tribunal to be positively satisfied there are no known, available and appropriate evidence-based treatments that would be likely to remedy the Applicant’s sensory impairment.[57] In oral closing submissions, the Respondent submitted:
·     The Applicant has not been referred to a neurologist to deal with tingling and numbing arising from paraesthesia injury.
·     Whilst Dr Maxwell’s view is that the paraesthesia injury is likely in connection with the shoulder injury, that is not a definitive conclusion and is merely a likely cause. Further enquiries have not been made to specialists to eliminate other causes such as the Applicant’s existing arthritis or any other possible cause.
·     Further enquiries have not been made beyond Dr Maxwell’s opinion to specialists as to whether there might be other available options to address the Applicant’s paraesthesia. While Dr Maxwell has a preliminary view, further enquiries are available to have been made that have not been made.
[57] RSFIC, [37(b)]; Respondent’s closing submissions.
The Tribunal considers that the Respondent’s submission the Applicant has tingling and numbing arising from paraesthesia injury is misconceived. The Tribunal understands from Dr Maxwell’s evidence that ‘paraesthesia’ is a descriptor for tingling and altered sensation; not an injury in and of itself.[58] In this way, upper right limb and hand paraesthesia is a sensory impairment the Applicant has.
[58] E1, 235.
Dr Maxwell’s evidence is that the Applicant’s shoulder injury causes paraesthesia of the right arm; paraesthesia is the result of the original injury and subsequent surgery to the right shoulder; and that this is likely due to nerve entrapment in the shoulder area.[59] Contrary to the Respondent’s submission, the Tribunal’s understanding of Dr Maxwell’s evidence is that in her clinical opinion the Applicant’s paraesthesia is – not is likely – sequelae of the shoulder injuries. Dr Maxwell opined there is no point referring the Applicant to a neurologist, or seeking any specialised input, regarding her paraesthesia as it is directly related to the shoulder injuries. Dr Maxwell’s evidence is that the Applicant’s paraesthesia is not correctable; treatment consists of ongoing analgesia, rehabilitation and massage; and further surgery would be likely to aggravate rather than relieve the problem.[60]
[59] E1, 234, 235.
[60] E, 235.
Dr Maxwell has been practising as a general practitioner for over 40 years; and she has been the Applicant’s treating general practitioner for approximately 14 years.[61] Subsequent to the Applicant’s shoulder injuries, Dr Maxwell has referred the Applicant to 4 orthopaedic surgeons who are upper limb specialists; and had the benefit of their input with respect to management of the Applicant’s shoulder injuries. In all these circumstances, the Tribunal considers Dr Maxwell is well placed to have a fulsome understanding of the Applicant’s upper limb impairments and her general health. The Tribunal gives Dr Maxwell’s evidence as it relates to the Applicant’s sensory impairment some weight.
[61] E1, 84, 234.
In evidence are letters to Dr Maxwell from Mr Pope, Dr Henningsen and Dr Wallwork, all of whom are orthopaedic surgeons and upper limb specialists. There is no suggestion in those letters that Dr Maxwell refer the Applicant to a neurologist, or indeed any specialist in addition to an orthopaedic surgeon, regarding her upper limb impairments.
Based on Dr Maxwell’s evidence, and the absence of any clinical recommendation that the Applicant requires referral to a neurologist or other specialist regarding her paraesthesia, the Tribunal is persuaded that the Applicant’s sensory impairment is sequelae of her shoulder injuries, which are permanent within the meaning of s 24(1)(b). In circumstances where the underlying cause of the Applicant’s sensory impairment cannot be remedied, and based on Dr Maxwell’s evidence that treatment of the Applicant’s sensory impairment is the same as treatment of the shoulder impairment and pain, the Tribunal is satisfied there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the Applicant’s sensory impairment.[62] Accordingly, the Tribunal is satisfied the Applicant’s sensory impairment is, or is likely to be, permanent and the requirement in s 24(1)(b) is met in relation to that.
Do the Applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the activities prescribed in s 24(1)(c)?
[62] r 5.4 Access Rules.
For the purposes of s 24(1)(c), the Tribunal must be satisfied that the Applicant’s impairments result in substantially reduced functional capacity to undertake one or more of 6 activities, those being communication, social interaction, learning, mobility, self-care and self-management (prescribed activities).
Rule 5.8 of the Access Rules provides that:
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The Tribunal must first consider whether the Applicant’s circumstances are within those set out in r 5.8 of the Access Rules. If they are, she will be deemed to have a substantially reduced functional capacity.[63] If they are not, the Tribunal must consider whether the Applicant’s functional capacity is nevertheless substantially reduced in any of the prescribed activities.[64]
[63] Mulligan, [76].
[64] Mulligan, [76].
When considering whether it is satisfied the requirement in s 24(1)(c) is met, the Tribunal must make a functional, practical assessment of what the Applicant can and cannot do.[65] That assessment involves consideration of the full range of tasks or actions that comprise each of the prescribed activities.[66] The Applicant need only have substantially reduced functional capacity in relation to one of the prescribed activities.[67]
[65] Mulligan, [56]; National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), [64].
[66] Foster, [64].
[67] Mulligan, [56].
The Applicant contends her impairments result in substantially reduced functional capacity to undertake the activities of self-care, mobility, and social interaction.[68] The Respondent accepts the Applicant experiences a reduction in her capacity to undertake the activities of mobility and self-care, however they do not accept that reduction is substantial.[69] The Respondent does not accept the Applicant experiences a reduction in her capacity to undertake the activity of social interaction.[70]
[68] ASFIC, [4.21], [4.29].
[69] RSFIC, [64], [73].
[70] RSFIC, [52].
In oral opening and closing submissions, counsel for the Applicant indicated that it is arguably the Applicant’s functional capacity to undertake the activity of self-care that is most profoundly reduced by her impairments. In these circumstances, the Tribunal will begin by considering the activity of self-care.
Self-care
The Access Guideline provides the following guidance regarding the range of tasks and actions that comprise the activity of self-care:
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.[71]
[71] Access Guideline, 8; Foster, [62].
In closing submissions, both the Applicant and the Respondent referred to a decision made by Senior Member French in Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607 (Burrows). Burrows was also included in an agreed joint bundle of authorities filed by the parties in advance of the hearing. In Burrows, the Tribunal considered what bundle of tasks falls within each of the activities prescribed in s 24(1)(c).[72] The Tribunal concluded that the activity of self-care includes tasks associated with personal care, including personal hygiene and grooming; eating and drinking; and health care.[73] The Tribunal also concluded that domestic tasks such as laundry, domestic cleaning, gardening and yard maintenance do not fall within any of the s 24(1)(c) activity areas.[74] This Tribunal has given careful consideration to the Tribunal’s reasoning in Burrows with respect to the bundle of tasks that fall within the activity of self-care, and respectfully agrees with the Tribunal for the reasons stated at paragraphs [73] to [95] of that decision that those are limited to tasks associated with personal care, including personal hygiene and grooming; eating and drinking; and health care.
[72] Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607 (26 May 2025) (Burrows), [73]-[86].
[73] Burrows, [87]
[74] Burrows, [90].
In May 2023, Dr Maxwell reported the Applicant needs daily assistance with washing, dressing, and to brush her hair; and assistance to toilet when her left arm is painful.[75]
[75] E1, 86.
Ms Johnson is a senior occupational therapist who was engaged by the Respondent to complete a functional capacity assessment. Ms Johnson assessed the Applicant in her home on 9 May 2024 and 30 May 2024.[76] Ms Johnson prepared a functional capacity assessment report dated 6 June 2024 in which she reported:
[76] E1, 291.
·     The findings of her assessment highlighted that due to the nature of the Applicant’s disability she may be able to perform certain tasks if she was to tolerate the pain and subsequent disfunction effects of pushing herself; but in order to get the most out of her day she has to choose carefully the tasks that she attempts to complete independently.[77] The Applicant explained that if she attempts to complete tasks beyond her capacity her shoulder function reduces significantly as a result, and she then has to ask for help for all tasks for the rest of the day and into the following days depending on the severity of her pain.[78]
[77] E1, 293-294.
[78] E1, 294.
·     The Applicant scored 113/180 for the WHODAS 2.0 she completed on 30 May 2024. For a previous WHODAS 2.0 completed 21 April 2023 she scored 93. This indicates that the impairments she is experiencing in her daily life are worsening over time.[79]
[79] E1, 294.
·     The functional capacity assessment utilised the FIM Assessment Protocol, which measures a person’s activity limitation. There are 18 items that are assessed and individually scored. Each item scored can achieve a maximum score of 7, indicating complete independence, through to a score of 1, being total assistance where the person is observed to do less than 25 percent of the task. It is important to consider the FIM in conjunction with other additional information obtained through further observations and interviews conducted on the separate date to the FIM being undertaken. This information provides conceptual information relating to daily living to complement the information formally assessed through the completing of the FIM.[80]
[80] E1, 294.
·     With respect to eating, the Applicant’s FIM Score was 5 and she was deemed by Ms Johnson to require minimal physical assistance.
·     The Applicant can hold normal cutlery and use it to feed herself without issues. The Applicant was observed to carry a heavy plate to the dining table using her left hand to set up for eating. She reported her left arm is slightly less affected than her right, but it is her non-dominant hand and therefore more difficult to coordinate. She reported experiencing pain (7/10) in the proximal shoulder while carrying the heavy plate and prefers to avoid this due to the aftereffects on her function. Her husband will carry heavier meals and plates to the table for her to avoid pain and strain on her shoulders. The Applicant reported she has to be careful when carrying hot drinks because she reports to experience numbness in her right hand which affects her sensation of temperature. Ms Johnson concluded the Applicant requires assistance with set up of the meal, specifically carrying of heavy meals/plates and hot items to the table.[81]
[81] E1. 295-297.
·     With respect to grooming, the Applicant’s FIM Score was 3 and she was deemed by Ms Johnson to require moderate physical assistance.
·     The Applicant was observed to be unable to lift her arms above shoulder height. She was also observed to lean over and place her head between her knees in order to reach her head and she was observed to still be unable to reach the back of her head due to reduced range of motion in the shoulder joint. These observations indicate the Applicant would not be able to wash her hair independently. The Applicant reported she attends a hairdresser once a week for hair washing. The Applicant reported she cannot brush her hair due to limited shoulder range of motion; her husband helps with this. She reported she can brush her teeth, apply makeup, shave, wash her hands and face independently. Ms Johnson concluded the Applicant requires formal assistance twice weekly for hair washing and hair brushing.[82]
·     With respect to showering, the Applicant’s FIM Score was 4 and she was deemed by Ms Johnson to require moderate physical assistance. Her WHODAS 2.0 score for washing her whole body was extreme difficulty or cannot do (5/5).[83]
·     The Applicant was observed to be unable to reach around to her back due to limited range of motion in her shoulders and limited external rotation in her elbows. The twisting motion in her shoulder joint and elbows to extend her arm around her back was reported to cause significant pain and was observed to be restricted. The Applicant reported this affects her ability to dry herself after showering. The motion of pulling the towel across her back is extremely painful and restricted meaning she cannot complete it independently. The motions involved with showering involve a significant amount of upper limb movement which the Applicant reports cause her pain and results in lasting fatigue for the remainder of the day. She benefits from having assistance with showering to reduce the number and frequency of movements performed so that she still has enough energy to go about her day and so the pain is not too severe to allow her to continue her day as planned. Ms Johnson concluded the Applicant requires assistance with showering and drying.[84]
·     With respect to dressing, the Applicant’s FIM Score was 3 for upper and 4 for lower, and she was deemed by Ms Johnson to require moderate physical assistance. Her WHODAS 2.0 score for getting dressed was moderate difficulty (3/5).[85]
·     The Applicant was observed to demonstrate how she places her head between her knees to get her shirts over her head, but she explained that if the shirt does not fall down her back, she cannot reach around her back to pull it down. In these instances, she reported to require assistance from her husband to pull her clothing down. The external rotation of the elbow joint and limited range of motion in the shoulder was observed to restrict the Applicant’s ability to reach behind and up her back. She was observed to place her head between her knees in order to get a pullover over her head but reported pain in her proximal shoulders and then she was observed to be unable to get the jumper down her back and required assistance with this. She was observed to put on a button up shirt by placing her right arm through the sleeve first and then she was observed to be unable to reach around her back for the other sleeve with her left arm. She required assistance to get her left arm into the sleeve. She reported to use very loose clothing or place a jumper over her shoulders only when unable to get assistance to put it on, but she reported this is not suitable for work.[86]
·     The Applicant explained that pulling tight clothing onto her lower limbs is particularly risky for her because it exerts pulling force through her shoulder joint that is reported to be partial subluxation with weakened muscles and tendons (according to doctors’ letters). For example, she reported that she was pulling on some tights when she experienced severe pain in her shoulder, and this resulted in loss of function for several weeks. She explained this is an example of a time when she pushed herself too far physically which resulted in further loss of function that affected areas of her life that she could previously manage independently. She reported if she was to push herself more often, she feels it would cause enough pain and loss of function that she risks becoming completely dependent on others for all upper limb tasks. She was observed to be able to reach down to her feet to put on socks and shoes independently.[87]
·     With respect to toileting, the Applicant’s FIM Score was 6, and she was deemed by Ms Johnson to require intermittent physical assistance during episodes of pain and fatigue.[88] The Applicant explained she can use her left arm to reach far enough for wiping after toileting however if she is already in pain or fatigued this movement is extremely uncomfortable.[89]
·     No issues were observed or reported with respect to bladder and bowel management.[90]
·     The Applicant reported to having an ‘average’ day at the time of the assessment. She reported that mornings are generally better than afternoons or evenings for her since her pain increases throughout the day due to the movements involved with daily life. She reported that is she has engaged with an upper limb task that has exacerbated her upper limb pain this can result in dysfunction lasting several days to several weeks. She reported some degree of dysfunction occurs monthly and severe dysfunction occurs on average 4 times a year and every time it occurs her baseline function worsens.[91]
·     With respect to the Applicant’s care support needs, Ms Johnson recommended the Applicant requires 1 hour per day 7 days per week of support worker assistance to assist the Applicant with her morning routine, including showering, dressing and grooming; and a total of 37 hours per week of support worker assistance.[92] Ms Johnson also recommended allied health therapy support, including physiotherapy, occupational therapy, hydrotherapy and remedial massage.[93] Ms Johnson opined that with respect to personal hygiene, the risk to the Applicant if her support needs are not met were as follows – Likelihood, highly likely; Consequence, major; Risk level high.[94] Ms Johnson further opined this risk could be mitigated by consistent formal support for personal care.[95]
[82] E1, 297-298.
[83] E1, 299-300.
[84] E1, 299-300.
[85] E1, 301-302.
[86] E1, 300-301.
[87] E1, 301-302.
[88] E1, 303.
[89] E1, 303.
[90] E1, 304.
[91] E1, 331.
[92] E1, 332.
[93] E1, 333.
[94] E1, 333.
[95] E1, 333.

After the abovementioned functional capacity assessment report, the Respondent issued supplementary questions to Ms Johnson. In responding to those questions, Ms Johnson stated:
·     When the Applicant attempts to engage with upper limb tasks that she finds painful or difficult, she aggravates her shoulders and this causes her to experience dysfunction for some time after, up to days which can reduce her independence in all areas of her life due to the debilitating effects of performing painful or restricted movements with the upper limbs.[96]
·     The FIM Assessment which includes an objective observational assessment and the WHODAS 2.0 were used to assess the Applicant. The results of the WHODAS 2.0 were compared with the results of the FIM to confirm consistency; and all results of the WHODAS 2.0 were consistent with what was observed of the Applicant during the FIM assessment.[97]
·     The assessment considered whether the Applicant could complete the tasks that she needs to daily within her existing range of motion and without reporting pain.[98]
[96] E1, 347.
[97] E1, 353.
[98] E1, 353.
At the hearing, Ms Johnson’s oral evidence was as follows:
·     Long-handled aids could be trialled to extend the Applicant’s reach for some tasks, including reaching behind her in personal care tasks. She does not know if these things would work, but from her experience long handled aids are not very effective as you can’t really get the right strength or coordination that you need. She is not hopeful they will be effective. She understood the Applicant had trialled some long-handled aids in the past without success.
·     The only tasks Ms Johnson considered the Applicant would require support because of her paraesthesia are cooking and meal preparation. In her assessment, it is the shoulder injury that is leading to her upper limb dysfunction.
·     She needs support from another person with personal care.
·     Based on her knowledge of how the body works, if you try to perform a physical task that is causing pain, it can result in less ability to do that task and more pain and therefore more dysfunction.
In a statement of lived experience dated 11 April 2025, the Applicant stated:
·     She cannot get in and out of the bath due to arm weakness. She cannot wash her hair and cannot do this with her husband’s help. She needs to attend a hairdresser twice a week to have her hair washed. When showering, she cannot wash the back of her neck or body. Nor can she dry those parts of her body. She needs assistance to shower.[99]
·     When toileting, she cannot use her dominant right arm to wipe at all due to weakness and loss of internal rotation. She modifies and uses her left arm for toileting. This will usually work unless she is also experiencing an exacerbation of her left shoulder. In that case, neither shoulder can rotate sufficiently. This has been happening more frequently over the last 4 months.[100]
·     She needs to be set up prior to dressing as she cannot reach or hang clothes in a wardrobe. She needs assistance to put on many items of clothing. She cannot pull tights, stockings or boots on or off due to arm weakness, stiffness and pain. She cannot do up or undo a bra. She cannot put clothes over her head as she cannot reach. She can lean over and put clothes over her head with difficulty but then she is unable to pull the item of clothing down her back due to loss of internal and external rotation of her shoulders. She needs assistance with winter clothes due to their weight and her arms being weak. She cannot get a shirt, cardigan or jacket around her back as her shoulders don’t move in those directions. She cannot do up or undo clothes or jewellery behind her body or her neck due to lack of shoulder movement.[101]
·     When she minimises using her arms and her pain is not severe, and if she has help with her activities of living, then it can be a manageable day. On a bad day her arms are stiff, stuck and very painful; she is dependent on someone to help with just about everything.[102]
·     Her symptoms are getting worse, and her daily functioning and independence are deteriorating. She is becoming more and more dependent on Mr Dawson to help her with and to do her activities of daily living.[103]
[99] E1, 288.
[100] E1, 288.
[101] E1, 288.
[102] E1, 289.
[103] E1. 290.
At the hearing, the Applicant’s oral evidence was as follows:
·     She can eat meals independently. As long as liquids are within her reach, and what she is cutting doesn’t require downward pressure, she can drink and use cutlery independently.
·     She attempted to wash her hair by bending and placing her head around knee level, but this did not work. She needs someone else to wash her hair as she is unable to do it. Her husband also brushes her hair.
·     With respect to showering, Mr Dawson must set her up so that everything is within her reach; and he has to help wash parts of her body and dry parts of her body. She cannot effectively shower and dry without Mr Dawson’s help; if she is on her own there are parts of her body that are not washed and dried.
·     When Mr Dawson travels interstate for work, he will try to get a plane on a Wednesday afternoon so that he can help her shower and dress before he leaves; she doesn’t work on a Thursday so need not get showered and dressed to go to work; and then on the Friday, when she does work, she tops and tails and does as best as she can.
·     She requires assistance to set up what she needs to put on after her shower as she cannot get clothes out of the wardrobe. She requires assistance to get dressed, including bottoms and tops. For example, she needs help putting a bra or stockings on, pulling boots on and off, putting a dress on as she can’t pull that down her back, to pull on a jacket, to fasten things on the back of her body. She requires assistance with these aspects of dressing.
·     The issue with trousers and skirts is the pressure of pulling hurts. Having someone to assist with bottoms means less symptoms, less dysfunction. Left alone she must do things and then she exacerbates her symptoms and disabilities. Buttons or zips at the back are impossible. She cannot pull items around her body.
·     Lifting her arms above her waste starts to pull, hurt, is weak and causes pain. If she tries to lift her arms over 90 degrees, it really hurts. She could do this in an emergency but tries to avoid it because the subsequent symptoms mean she can’t effectively involve herself in the rest of the day.
·     With respect to toileting, she does not have the range of movement in her right arm to wipe. When her left arm is functioning, she will use that non-dominant hand to wipe.
·     In an incident in early 2022, her right shoulder just stopped working and caused excruciating pain. She was unable to use it at all. This is now happening more and more and leaves her with less ability to function. That episode lasted weeks and she sought an assessment with Dr Wallwork, and that was when he entertained the possibility that her shoulder was subluxing. This has happened several times, and in the past 6 months this is happening in the left arm as well. These episodes can last hours, days or weeks – it is variable. It is a big issue if it is her left shoulder because she cannot use her right arm to toilet and wipe; so if her left shoulder freezes and is in pain, she cannot toilet and wipe independently.
·     There have been 2 episodes this year where the left shoulder has frozen because of her doing something and it is extremely painful as a consequence. On one occasion it happened when she was trying to pull on an undergarment, trying to pull with pressure with an outstretched arm. This caused an acute loss of function and pain. The recovery period when this happens is variable. The surgeons think the joint is subluxing. There have been episodes where recovery takes hours, days and weeks. For episodes where recovery takes longer, she seeks specialist and allied health review.
·     If she has support, someone to help to do activities of daily living, it is a better day. She is never pain free. Her pain score at best is 4, on a bad day it can be 8. The day is predictably bad when she must do things on her own.
·     On the day of the hearing, the Applicant explained Mr Dawson helped her to shower, dry, apply moisturiser, and get dressed. With respect to the shower, he was in the bathroom with her, he made sure what she needed was accessible, he washed the parts of her body she can’t reach. She has stopped wearing makeup as it is one less thing to do. She can’t put her hair up; Mr Dawson has to do that.
·     When Mr Dawson travels, he is usually interstate from Wednesday afternoon until Friday evening. On Fridays, when Mr Dawson is away, and she must get ready for work on her own it is hard. She cannot have a proper shower; her hair remains as is.
In a carer’s statement dated 4 April 2025, Mr Dawson stated:
·     On a typical day he will often have to help the Applicant to dress and do her hair. The Applicant cannot put on clothes that require her to raise her arms over chest height. For example, a dress, a jumper, heavy jackets or coats. She has difficulty putting on a bra even with a modified technique. He has to assist with buttons and zips that she cannot reach.[104]
·     The Applicant can no longer use a bath due to the need to use her upper body to get out of the bath. She can shower but she cannot wash the back of her body or her hair. To wash her back, he would need to assist. She cannot wash her hair unaided and it is logistically difficult to do it together in the shower. In practice she will usually go to the hairdresser to have it washed. However, this is not always possible due to the challenges in getting there.[105]
·     There is some variability in her condition. There are no good days but not all days are bad. On better days she can do some light activities early in the day and if she does not undertake any significant activities of daily living she will only experience moderate weakness/stiffness and subsequent pain and will remain quite cheerful.[106]
·     The Applicant has 2 to 3 bad days per week. On bad days she will be unable to undertake all but the least demanding of her activities of daily living. She often tries to undertake activities of daily living she probably shouldn’t. This results in higher levels of stiffness and pain.[107]
·     He has been looking after the Applicant for nearly 7 years. He resigned from his previous role in 2020 as it was increasingly difficult to balance the demands of that role with the Applicant’s competing needs.[108] He now works around half the time, and predominantly from home.[109]
·     He needs to travel around 10 to 15 times a year for work. These trips typically require 2 to 3 days away. These are very difficult periods for the Applicant to manage as she does not have him to support her. He suspects she tries to do many of the things that he does when he is at home. When he returns, her weakness, stiffness and consequent physical pain is always significantly higher.[110]
·     He typically spends 2 to 4 hours per day supporting the Applicant with many of her activities of daily living, which does not include housework, or the time spent just being her husband and friend.[111]
[104] E1, 276.
[105] E1, 276.
[106] E1, 277.
[107] E1, 278.
[108] E1, 275.
[109] E1, 277.
[110] E1, 278.
[111] E1, 275.
At the hearing, Mr Dawson’s oral evidence was as follows:
·     He has restricted his travel for work to Wednesdays, Thursdays and Friday. He leaves as late as possible on Wednesday afternoon; the Applicant does not work on Thursdays so she can stay at home that day; and then he typically comes home on Friday afternoon. Once home he must play catch up. Typically, the Applicant will be in a lot of pain by Friday when he returns home because she has been trying to do things for herself. Other strategies in place for when he is away include that he and the Applicant have sons who help when they can; and a cleaner comes in on Fridays when he is not there.
·     He estimated the Applicant had 1 or 2 good days a week where she hasn’t pushed herself because there have been people there to provide support. He estimated she has bad days 2 to 4 days a week when she has flare ups, because the arms are differently affected. She has mainly had problems with her right dominant arm, but when she has a flare up with her left arm it is very hard, and he must do just about everything.
·     Sometimes if it is a bad day, there is not a shower. If it is a good day then he will need to provide a little bit of help, such as washing areas she cannot reach with her arms, helping her dry. On a bad day, it is quite hard, he does quite a lot of the washing.
·     The Applicant has had 2 or 3 big flare ups this year, and the flare ups are getting longer.
With respect to their evidence in relation to the Applicant’s functional capacity, the Tribunal found both the Applicant and Mr Dawson gave their evidence in a forthright manner without embellishment. Their oral and written evidence was internally consistent; and evidence provided by each of them was consistent with that provided by the other. The Tribunal found them both to be credible witnesses.
As an occupational therapist that is registered with AHPRA and an accredited FIM assessor, the Tribunal considers Ms Johnson is appropriately qualified to have assessed the Applicant’s functional capacity. Her evidence demonstrated careful consideration of what she personally observed during her assessment, the results of standardised testing, what was self-reported to her by the Applicant, and clinical evidence annexed to the briefing letter prepared by the Respondent. The Tribunal found Ms Johnson’s written reports and oral evidence to be measured and objective.
Having considered the evidence as outlined above, and the weight to be given to that evidence, the Tribunal makes the following observations and findings.
The Applicant’s evidence – which is consistent with what she reported to Ms Johnson – is to the effect that the more she needs to use her upper limbs the more her functional capacity is reduced; and on bad days she is dependent on someone to help with just about everything. That evidence was to some extent corroborated by Ms Johnson’s opinion that if someone tries to perform a physical task that is causing pain, it can result in less ability to do that task and more pain, and therefore more dysfunction. That evidence was also corroborated by Mr Dawson’s evidence there are no good days, but not all days are bad; days that are not bad days are those where the Applicant hasn’t pushed herself because she has had support; and on bad days the Applicant is unable to undertake all but the least demanding of her activities of daily living. Mr Dawson estimated the Applicant had 2 to 3 bad days per week. Based on this evidence, the Tribunal broadly accepts that the Applicant’s functional capacity fluctuates; some days are worse than others; and on average she has 2 to 3 bad days a week.
Dr Maxwell gave evidence the Applicant is now experiencing instability in both shoulders. The Applicant gave evidence to the effect she has experienced exacerbations (be that instability or a ‘flare’) of her right shoulder several times in the last 6 months; 2 such episodes of her left shoulder this year; and these episodes can last hours, days or weeks. The Applicant reported to Ms Johnson some degree of dysfunction occurs monthly and severe dysfunction occurs on average 4 times a year. Based on this evidence, the Tribunal broadly accepts that approximately once per month, the Applicant experiences exacerbations in 1 of her shoulders; during these times her physical impairments are exacerbated – and with that the effect of those on her functional capacity – for hours, days or weeks.
The Applicant informed Ms Johnson that she was having an average day during the assessment; and there is no suggestion she was experiencing an exacerbation in either shoulder at that time. The Tribunal finds that Ms Johnson’s reported observations of the Applicant’s functional capacity reflect her functional capacity on an average day on an average week when she was not experiencing an exacerbation.
The Applicant, Mr Dawson, Dr Maxwell and Ms Johnson have each given evidence that the Applicant cannot brush or wash her hair because of her physical impairments. The Tribunal accepts this evidence and finds accordingly. The Applicant’s evidence, which the Tribunal accepts, is that she can brush her teeth, wash her hands, and wash her face. Ms Johnson assigned a FIM score of 3 for grooming, which suggests the Applicant can perform some aspects of grooming herself but requires moderate physical assistance with other aspects of grooming. This is consistent with the Tribunal’s findings she can independently brush her teeth, wash her hands and wash her face; but she cannot brush or wash her hair.
Ms Johnson observed the Applicant cannot reach around to her back. This was consistent with the Applicant’s and Mr Dawson’s evidence, and with what the Applicant reported to Ms Johnson. Their collective evidence is that because of this the Applicant cannot wash or dry parts of her body. The Applicant’s WHODAS 2.0 for ‘washing your whole body’ was 5, which equates to ‘extreme difficulty or cannot do’. Evidence provided by Mr Dawson is that on a good day he will wash parts of the Applicant’s body she cannot reach and help her to dry her body; and on a bad day he must do quite a lot of the washing.
The Applicant, Mr Dawson, Dr Maxwell and Ms Johnson have each given evidence that the Applicant requires physical assistance to shower and dry herself because of her physical impairments. Based on the evidence referred to in paragraphs [73] and [74], the Tribunal finds that on an average day the Applicant cannot shower or dry all of her body without physical assistance; and the extent of physical assistance she needs to complete these tasks increases on bad days or during periods when she is experiencing an exacerbation in 1 of her shoulders.
The Applicant reported to Ms Johnson and gave evidence to the effect she cannot use her right dominant hand for wiping after toileting because of her physical impairments; however, she can generally use her left arm to reach far enough for wiping after toileting. The Tribunal accepts that evidence and finds that on an average day the Applicant can toilet herself using her non-dominant left arm albeit with some difficulty.
Ms Johnson opined the Applicant requires intermittent physical assistance with toileting during episodes of pain and fatigue; Dr Maxwell opined the Applicant requires assistance to toilet when her left arm is painful; and the Applicant’s evidence is to the effect that using her left hand to wipe after toileting is not possible when she is experiencing an exacerbation of her left shoulder, in which case she cannot toilet herself. The Tribunal accepts this evidence and finds that on bad days when her left shoulder is in pain, and at times when she is experiencing an exacerbation in her left shoulder injury, the Applicant cannot wipe after toileting, and as such she cannot toilet independently during these periods.
Ms Johnson’s observations and the Applicant’s self-reporting to Ms Johnson with respect to the task of dressing, as outlined in paragraph [59], are broadly consistent with evidence provided by the Applicant and Mr Dawson in written and oral evidence. Based on that evidence the Tribunal finds that on an average day there are aspects of dressing the Applicant can do, and aspects of dressing she cannot do because of her physical impairments. Specifically, the Tribunal finds the Applicant can put clothing over her head in a modified way (that is, by placing her head between her knees), but if that clothing doesn’t then fall down her back, she cannot reach to pull it down herself; she can put one, but not both, sleeves of a shirt or cardigan on as she can’t reach around to get the second sleeve; she can put some shoes on; she can generally put very loose clothing on; she cannot do up a bra; she cannot pull tighter clothing or boots up her lower limbs; she cannot put heavier winter clothing on; she cannot fasten things on the back of her body; and she cannot get clothes from a wardrobe.

Ms Johnson and Dr Maxwell each opined the Applicant requires physical assistance to dress. Given the extent of aspects of dressing the Tribunal has found the Applicant cannot do even on an average day, the Tribunal accepts those opinions to be correct and finds accordingly. The Tribunal also accepts that on bad days and at times when the Applicant is experiencing an exacerbation in either of her shoulders, there are aspects of dressing she cannot do, that she can do on an average day.
The evidence of Ms Johnson and the Applicant is to the effect that the Applicant can eat and drink independently, provided what she is eating doesn’t require downward pressure to cut; and with respect to setting up for eating, she can generally manage this herself unless the plate or meal is heavy in which case carrying that to a table causes significant pain. Whilst the Applicant reported to Ms Johnson she must be careful when holding hot things, such as a hot drink, because of her sensory impairment, she did not go so far as to suggest she cannot hold hot things. Considering this evidence, the Tribunal finds the Applicant can generally eat and drink independently.
In closing submissions, counsel for the Applicant submitted that the evidence overwhelmingly establishes that it is not just the case that the Applicant usually requires assistance from other people to participate in the activity of self-care, or to perform tasks or actions required to undertake or participate in that activity; rather that assistance is almost always required; and in those circumstances the Applicant is deemed by operation of r 5.8(b) of the Access Rules to have substantially reduced capacity within the meaning of s 24(1)(c).
In closing submissions, counsel for the Respondent submitted that whilst the Respondent accepts there is a degree of reduced functional capacity to undertake the activity of self-care, that degree is not substantial. The Tribunal was taken to the total FIM Score for self-care that Ms Johnson provided to the Applicant of 39 out of 56, which equates to about 70 percent. The Respondent submitted that score does not support the proposition that the Applicant has substantially reduced functional capacity under the domain of self-care. With respect to the Respondent’s latter submission, the Tribunal notes Ms Johnson’s evidence which was to the effect that the FIM score is not to be read in isolation and must be considered in conjunction with other additional information obtained through further observations and interviews.
Having considered what the Applicant can and cannot do with respect to the range of tasks that comprise the activity of self-care, the Tribunal is satisfied that as a result of her physical impairments the Applicant usually requires physical assistance from other people to participate in the activity of self-care or to perform tasks or actions required to undertake or participate in that activity. In these circumstances, the Applicant’s physical impairments are deemed to result in substantially reduced functional capacity to undertake the activity of self-care by operation of r 5.8(b) of the Access Rules. It follows that the Tribunal is satisfied the requirement in s 24(1)(c) is met.
For completeness, even had the Tribunal not been satisfied the Applicant’s circumstances are captured by those described in r 5.8(b) of the Access Rules, on the basis of what the Tribunal has found the Applicant can and cannot do with respect to the range of tasks that comprise the activity of self-care, and considering her ability over time taking into account her ups and downs, the Tribunal is satisfied the Applicant’s physical impairments result in substantially reduced functional capacity to undertake the activity of self-care within the meaning of s 24(1)(c).[112]
[112] Access Guideline, 9.
Do the Applicant’s impairments affect her capacity for social or economic participation?
For the purposes of s 24(1)(d), the Tribunal must be satisfied the impairment or impairments affect the Applicant’s capacity for social or economic participation.
The Respondent accepts that s 24(1)(d) is met based on the Applicant’s permanent physical impairments.[113] The evidence with respect to this is overwhelming. For example, the Applicant has had to drastically reduce her clinical practise hours; she can no longer participate in activities she once enjoyed, such as gardening; and the time she can spend socialising is greatly diminished. On this basis, the Tribunal is similarly satisfied the Applicant’s physical impairments affect her capacity for social and economic participation and finds the requirement in s 24(1)(d) is met.
[113] RSFIC, [76].
Is the Applicant likely to require support under the NDIS for her lifetime?
For the purposes of s 24(1)(e), the Tribunal must be satisfied the Applicant is likely to require support under the NDIS for her lifetime.
The Access Guidelines provide that when considering whether a prospective participant is likely to require support under the NDIS for their lifetime, the Respondent considers the person’s life circumstances, the nature of the person’s long-term support needs, and whether those needs could be best met by the NDIS, or by other government and community services.[114]
[114] Access Guideline, 11.
The Applicant is 67 years old. She lives with her husband, Mr Dawson. She and Mr Dawson have adult children who live independently with their own families. The Applicant works as a general practitioner for 3 hours 3 days per week, and it is very important to her that she maintain this. Based on Dr Maxwell’s oral evidence, which the Tribunal accepts, the Applicant is generally well but for the impairments arising from her shoulder injuries.
Ms Johnson recommended several supports to address the reduction in functional capacity resulting from the Applicant’s impairments, which include support worker assistance, remedial massage, hydrotherapy, physiotherapy, and an occupational therapy assessment.[115] Dr Maxwell’s evidence is that the Applicant requires a high level of daily support from other people to perform activities of daily living.[116] Dr Maxwell also recommended regular hydrotherapy and remedial massage; and physiotherapy as required.[117] Based on evidence provided by Ms Johnson and Dr Maxwell, the Tribunal finds the supports required by the Applicant in respect of her reduced functional capacity include support worker assistance, remedial massage, hydrotherapy, physiotherapy, and an occupational therapy assessment.
[115] E1, 332, 333, 334.
[116] E1, 237.
[117] E1, 249.
The Tribunal has accepted that the Applicant’s impairments are permanent, and the overwhelming evidence is that their impact on her functional capacity will be ongoing for her lifetime. In those circumstances, the Tribunal accepts that the Applicant will require the supports referred to in paragraph [89] for her lifetime.
The remaining question is whether the Applicant is likely to require support under the NDIS for her lifetime.
In National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), the Full Court of the Federal Court of Australia made the following observations regarding the construction of s 24(1)(e):
·     The focus of 24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems.[118]
·     The ‘likely’ support referred to in s 24(1)(e) can only be referrable to the result of the impairment the subject of the application to gain access to the NDIS.[119]
·     Whether support available under another system is comparable to what would be available under the NDIS is not the question asked by s 24(1)(e).[120]
[118] Foster, [93].
[119] Foster, [94].
[120] Foster, [95].
On 27 March 2025, the Applicant applied online to My Aged Care.[121] My Aged Care referred the Applicant for an Aged Care assessment; however, the Applicant gave evidence she was informed in August 2025 that Aged Care assessment is essentially on hold pending the outcome of this review regarding whether she meets the access criteria to become a participant of the NDIS.[122] The Tribunal accepts that evidence and finds that despite My Aged Care referring the Applicant for an Aged Care assessment; that assessment will not take place until it becomes clear whether she will or will not become a participant of the NDIS.
[121] E3; Applicant’s oral evidence.
[122] E3; E4; E5; Applicant’s oral evidence.
Ms Johnson’s written evidence is to the effect:
· The Applicant’s condition is caused by injuries and has resulted in permanent disability; therefore, the NDIS would be considered the most appropriate avenue of support for provision of the recommended support worker assistance.[123]
· The recommended occupational therapy input regarding assessment of aids and equipment suitable for the Applicant is directly related to the Applicant’s permanent impairment and therefore, according to the Department of Social Services’ definition of the NDIS, it is most appropriately funded by the NDIS rather than mainstream healthcare or My Aged Care.[124]
[123] E1, 344.
[124] E1, 344, 345.
Ms Johnson gave the following oral evidence:
· Her understanding is that the support worker assistance and allied health therapy she has recommended for the Applicant are supports that would be available to her under My Aged Care if she was accessed to be eligible and depending on what level package she was awarded; and once the Aged Care assessment is completed, that would help outline what support the Applicant can receive through My Aged Care.
· Her professional opinion is that the supports required by the Applicant are best met by the NDIS.
Dr Maxwell gave the following oral evidence:
·     She has extensive experience in the aged care sphere, including having worked at the Strathmore Centre. She has patients that are involved with My Aged Care.
·     The types of supports the Applicant needs are available through My Aged Care, but she doesn’t think those would fit with the Applicant. By way of an example as to why that is so, she stated that if someone under the My Aged Care program needs help with showering, the person who helps with showring may come at any time; but if the Applicant is going to work, she needs something timely and targeted. In cross-examination, Dr Maxwell was asked whether, if someone with access to supports through My Aged Care required assistance to take medication at a particular time of the day, that could be arranged; to which she responded ‘yes, that could be arranged’. When pressed whether a similar such arrangement could be made in relation to the Applicant’s showering needs, Dr Maxwell said she couldn’t say.
·     The Applicant is in all respects a young person; she is cognitively extremely good and physically extremely good, but for her shoulders. The aged care system is not designed for young people with a specific disability; it is designed for people who are aging, and who are having difficulties because of their aging. The NDIS is more about looking after people who have a specific disability, which is exactly what the Applicant has; so, she would say a disability service is appropriate, not an aged care service because the Applicant is not aged. She doesn’t think My Aged Care is appropriate for the Applicant and she doubts those who work with My Aged Care are set up to deal with 1 disability; that is what the NDIS was set up for.
In evidence is information filed by the Respondent regarding My Aged Care, specifically booklets titled ‘Your guide to Commonwealth Home Support Program Service’ and ‘Your guide to Home Care Package Services.[125] These brochures explain that the pathway to accessing the Commonwealth Home Support Program (CHSP) or a Home Care Package is to contact My Aged Care; My Aged Care will refer a person for an Aged Care assessment; and the Aged Care assessment will determine whether a person is eligible for services under the CHSP or a Home Care Package.[126]
[125] E2, 358, 382.
[126] E2, 368, 394.
The CHSP funds a large variety of organisations (called service providers) across Australia to deliver care and services to eligible people aged 65 years and over; and aims to help older people to live as independently as possible.[127] In ‘Your guide to Commonwealth Home Support Program Service’ it is explained that there are different services to help manage day-to-day activities; and depending on a person’s needs, they may be eligible to receive transport to appointments and activities; domestic help (e.g. house cleaning, washing clothes); personal care (e.g. help with showering and dressing); home maintenance (e.g. changing light bulbs, gardening); minor home modifications (e.g. getting a grab rail installed); aids and equipment (e.g. bath seat, raised toilet seat, mobility aids); meals, help with food preparation, and cooking skills, nutrition advice; nursing; allied health (e.g. podiatry, physiotherapy, occupational therapy); social support; respite; and specialised support.[128]
[127] E2, 363.
[128] E2, 364.
A Home Care Package is coordinated care and services to help a person live independently in their home for as long as it is safe and appropriate to do so.[129] Depending on a person’s care and service needs, a Home Care Package can include personal services (assistance with personal activities such as bathing, showering, toileting, dressing, mobility and communication); nutrition, hydration, meal preparation and diet; continence management, mobility and dexterity; nursing, allied health and therapy services; transport and personal assistance; management of skin integrity; assistive technology; aids and equipment.[130]
[129] E2, 387.
[130] E2, 389-390.
Based on evidence provided by Ms Johnson and Dr Maxwell, together with information regarding the CHSP and a Home Care Package referred to in paragraphs [97] to [99], the Tribunal finds that the supports required by the Applicant in respect of her reduced functional capacity are available through My Aged Care; and whether those supports are available to the Applicant through My Aged Care will depend on the outcome of her Aged Care assessment.
In closing submissions, counsel for the Applicant contended that s 22 provides that it does not matter, if someone is granted access as a participant of the NDIS before the age of 65, the NDIS will provide supports for life. It is not in contest that the Applicant was under 65 when her access request was made and she therefore meets the age requirement in s 22; however, at the time the Tribunal is considering whether she is likely to require support under the NDIS for her lifetime, she is aged 67. Consistent with the view expressed by the Tribunal (differently constituted) in Morris and National Disability Insurance Agency [2024] ARTA 186, which was included in the joint bundle of authorities filed by the parties, this Tribunal considers that for the purpose of accessing whether the Applicant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems, it is her age at the time of this decision that must be considered.[131]
[131] Morris and National Disability Insurance Agency [2024] ARTA 186 (27 November 2024), [53]; Foster, [93].
The Tribunal notes that s 3(3)(b) provides that in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS; and s 4(17) provides that it is the intention of Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under the NDIS Act in accordance with the principles in s 4, having regard to the need to ensure the financial sustainability of the NDIS. The Tribunal agrees with the submission made by counsel for the Respondent in closing that this statutory context supports a construction of s 24(1)(e) that requires the Tribunal to undertake an assessment of whether the supports required by the Applicant could be provided by other services systems when considering whether it is satisfied the requirement in s 24(1)(e) is met.
The Tribunal has previously considered whether a person who is eligible to receive supports under My Aged Care is likely to require support under the NDIS for their lifetime; and has found that in those circumstances the support needs were most appropriately met by My Aged Care.[132] In Brickhill and National Disability Insurance Agency [2025] ARTA 707 the Tribunal dismissed a review application pursuant to s 101(1)(b) of the ART Act on the basis it had no reasonable prospects of success because it considered the Applicant incapable of meeting the disability requirement in s 24(1)(e) in circumstances where she was the current recipient of a Home Care Package.[133]
[132] NRNK and National Disability Insurance Agency [2024] AATA 110 (15 January 2024), [144]; Morris, [57].
[133] Brickhill and National Disability Insurance Agency [2025] ARTA 707 (11 June 2025) (Brickhill), [47].
Whilst the Applicant has applied to My Aged Care, and has been referred for an Aged Care assessment, that assessment is on hold pending the outcome of this review, and so it is unknown whether the Applicant is or is not eligible for supports under the CHSP or HSC programmes. In this way, the Applicant’s circumstances can be distinguished from those of the Applicants in the matters referred to in paragraph [103] who were at the time of the Tribunal’s decision receiving, or had been deemed eligible to receive, supports from My Aged Care. However, bearing in mind the point made by the Tribunal at paragraph [102], the Tribunal is not satisfied the Applicant will likely require supports under the NDIS for her lifetime, and that her support needs are not most appropriately met by other systems, in circumstances where the outcome of her Aged Care assessment is unknown; she may be eligible to receive supports under My Aged Care; and the supports required by the Applicant in respect of her reduced functional capacity are available through My Aged Care.
The Tribunal has considered whether because of the Applicant’s circumstances her support needs are not most appropriately met by My Aged Care. Dr Maxwell’s strong opinion is that My Aged Care is not an appropriate system to meet the Applicant’s support needs for the reasons outlined in paragraph [96]; and both Dr Maxwell and Ms Johnson opined that the NDIS is the appropriate system to meet the Applicant’s support needs for the reasons outlined in paragraphs [94] to [96]. In closing, counsel for the Applicant contended an aged care package is age related, and as supports under such packages come at random times, they are poorly suited for a high functioning individual such as the Applicant who has a profession and is eager to do as many hours as she can in that valued capacity.
However, as was noted by the Full Court of the Federal Court in Foster, whether support available under another system is comparable to what would be available under the NDIS is not the question asked by s 24(1)(e).[134] Similarly in Bricknell, Senior Member French stated:
‘The NDIS is not a panacea intended to cover gaps and limitations in other government programs. It would be contrary to the objects of the Act to interpret s 24(1)(e) as if this were the case. In this respect, in giving effect to those objects, regard must be had to the need to ensure the financial sustainability of the NDIS.’[135]
[134] Foster, [95].
[135] Brickhill, [45].
Whilst it may be the case that supports provided under My Aged Care are delivered in a way that is not ideal for someone such as the Applicant who is well but for her impairments and continues to work as a general practitioner; and that programs available under My Aged Care are intended to support older people to remain living independently and safely rather than to support an individual who only requires support because of a non-age related impairment or impairments; the fact remains that the Tribunal has accepted at paragraph [100] that the supports required by the Applicant in respect of her reduced functional capacity are available through My Aged Care; and in those circumstances, in the absence of evidence the Applicant is ineligible for support under that system, the Tribunal is not satisfied she is likely to require support under the NDIS for her lifetime.

For the reasons outlined above, the Tribunal is not satisfied the Applicant is likely to require support under the NDIS for her lifetime; and the requirement in s 24(1)(e) is therefore not met. In circumstances where the requirements in s 24(1) are cumulative, the Tribunal finds the Applicant does not meet the disability requirements in s 24.
The Applicant does not contend that she meets the early intervention requirements in s 25.[136] This is, to the Tribunal’s mind, an appropriate concession.
[136] Applicant’s opening and closing submissions.
In circumstances where the Tribunal has determined the Applicant does not meet the disability requirements in s 24; and concedes she does not meet the early intervention requirements in s 25; she does not meet the access criteria to become a participant of the NDIS.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for the decision herein of Member L Proske

................................[SGND]...................................
Associate

Dated: 14 October 2025

Date of hearing: 14 and 15 August 2025

Advocate for the Applicant:
N Healey

Advocate for the Respondent: M Makris (instructed by Maddocks Lawyers)

Date of hearing:	14 and 15 August 2025
Advocate for the Applicant:	N Healey
Advocate for the Respondent:	M Makris (instructed by Maddocks Lawyers)