PZFT and National Disability Insurance Agency (NDIS)

PZFT and National Disability Insurance Agency (NDIS) [2024] ARTA 184 (13 December 2024)
Applicant/s:  PZFT
Respondent:  National Disability Insurance Agency
Tribunal Number:                2022/2656

Tribunal:General Member N Purcell
Place:Sydney
Date:13 December 2024

Decision:The Tribunal affirms the decision under review.

........................[SGD]................................................
General Member N Purcell
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access – substantially reduced functional capacity – idiopathic hypersomnia disorder – hearing dispensed with – hearing on papers – decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth), s106
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Mulligan v National Disability Insurance Agency [2015] FCA 544
Mulligan and National Disability Insurance Agency [2015] AATA 974
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Madelaine and National Disability Insurance Agency [2020] AATA 4025
National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415
Timofticiuc and National Disability Insurance Agency [2021] AATA 3015
Nika v National Disability Insurance Agency [2021] AATA 2127
Secondary Materials
Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024
Statement of Reasons
INTRODUCTION

The issue before the Tribunal is whether the Applicant meets the access criteria to be a participant of the National Disability Insurance Scheme (‘the NDIS’ or ‘the scheme’), in accordance with section 21 of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’ or ‘the Act’).
The Applicant is a 43-year-old woman who seeks to become a participant of the NDIS based on impairments arising from her diagnosis of idiopathic hypersomnia. On 29 September 2021, she made a request for access to the NDIS. On 8 October 2021, a delegate on behalf of the National Disability Insurance Agency decided that although the Applicant satisfied the age and residency access criteria, she did not meet the disability requirements under section 24 or the early intervention requirements under section 25 of the Act.
On 29 November 2021, the Applicant requested internal review of the original decision, pursuant to section 100(2) of the NDIS Act. On 9 March 2022, the Respondent affirmed the original decision (reviewable decision). The Applicant then sought external review of the reviewable decision under section 100(6) of the NDIS Act by filing an application with the Administrative Appeals Tribunal (AAT) pursuant to section 103 of the NDIS Act on 30 March 2022. The Administrative Review Tribunal (ART) replaced the AAT on the 14 October 2024. By virtue of the transitional arrangements, the matter was automatically transferred to the ART.
Interlocutory issue – hearing ‘on the papers’
Prior to hearing, the parties participated in 4 case conferences on 27 July 2022, 27 September 2022, 31 January 2023, and 5 September 2023. The Applicant did not attend a fifth case conference on 27 March 2023. The first directions hearing was held on 17 October 2023 and the Respondent provided a joint hearing bundle of relevant documents on 7 November 2023. A further 10 directions hearings were held, with the Tribunal providing additional time for the Applicant to seek representation, gather additional evidence and obtain her own independent medical examination report. Despite extensions of time, the Applicant failed to comply with various Tribunal directions and did not file any further evidence during this period. On 9 July 2024, the Applicant indicated she would prefer a decision be made ‘on the papers’ due to concerns about participating in a full day hearing.[1]
[1] Respondent’s submissions regarding dismissal of application, dated 10 September 2024.
On the 30 August 2024, a hearing was listed for 9 September 2024 at midday to accommodate the Applicant’s request for a later start time. On the 2 September 2024, the Respondent filed its hearing plan and indicated it planned to call one witness, the independent occupational therapist (OT), Ms Tiffany Hayes. On 3 September 2024, the Applicant informed the Tribunal she could not attend the hearing listed for 9 September 2024 because it would occur at a time when she needs to collect her son from school. A twelfth directions hearing was held the same day. The Applicant indicated to the Tribunal that she had difficulty obtaining representation and could not afford to pay doctors to attend to give oral evidence at hearing. The Tribunal vacated the hearing by video listed on 9 September 2024 and directed the parties to file written submissions by 10 September 2024 as to whether the Tribunal should exercise its discretion pursuant to section 42A(5) of the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to dismiss the matter.
On the 10 September 2024, the Applicant filed a statement from her ex-husband and the father of her son in support of her application.[2] The Respondent also filed a statement, submitting, amongst other things, that the Applicant had failed within a reasonable time to proceed with her application for review and the matter should be dismissed under section 42A(5) of the AAT Act. In the alternative, the Respondent consented to the application for review being determined without a hearing under section 34J of the AAT Act, based on the Tribunal’s consideration of the material already provided by the parties.[3]
[2] Ibid.
[3] Ibid.
The Member who had been constituted the matter at the time decided not to dismiss the matter pursuant to section 34J of the now repealed AAT Act. The matter was reconstituted to a different Member in late September 2024 who wrote to the parties that month confirming the Tribunal’s understanding that both parties had consented to a hearing on the papers. The Administrative Review Tribunal Act 2024 (Cth) (ART Act) came into effect on the 14 October 2024. Section 106(1) of the ART Act states the Tribunal may reach a decision without a hearing in certain circumstances. Relevant to this matter, s 106(2) of the ART Act provides that the Tribunal can proceed to make a decision without a hearing if the parties consent to the proceeding being determined without a hearing and if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.' Subsequently, on the 21 October 2024 the Tribunal listed a hearing to be done on the papers on 18 November 2024.
In arriving at its decision, the Tribunal has considered the various documents contained in the joint hearing bundle (JHB), which was accepted into evidence, including:
(a)documents filed by the Respondent, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) (‘T-Documents’);[4]
(b)various medical and allied health reports filed by the Applicant;
(c)a brief and undated statement of daily living, otherwise known as a statement of lived experience (SOLE) filed by the Applicant in July 2022;
(d)an independent functional capacity assessment report from Ms Tiffany Hayes dated 18 July 2023.
[4] Joint Hearing Bundle (JHB).
The following documents were also admitted into evidence:
(a)the Respondent’s statement of facts, issues and contentions dated 23 September 2023;[5]
(b)an undated statement from the Applicant’s ex-husband filed on 10 September 2024;[6]
(c)a copy of the Applicant’s son’s NDIS plan dated 9 September 2024;[7]
(d)a Functional Capacity Assessment Report for the Applicant’s son dated 15 March 2024;[8]
(e)the Respondent’s submissions regarding dismissal of Application, dated 10 September 2024.[9]
LEGISLATIVE FRAMEWORK
[5] Marked E1.
[6] Marked E2.
[7] Marked E3.
[8] Marked E4.
[9][9] Marked E5.
The access criteria
To become a participant of 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).
There is no dispute that the Applicant satisfies the age and the residence requirements. What the Tribunal must decide is whether the Applicant satisfies the access criteria in section 24 (‘the disability requirements’) or section 25 (‘the early intervention requirements’).
Section 24 of the Act states:
(1) A person meets the disability requirementsif:
(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.
If the Applicant does not meet the disability requirements, the Tribunal must consider whether she meets the early intervention requirements set out in section 25 of the Act which relevantly states:
(1) A person meets the early intervention requirementsif:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has a developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that the NDIS rules may prescribe circumstances and criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules in the Applicant’s case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), which form part of the legislative framework.
The NDIS Operational Guidelines are also relevant to 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 at time of decision is Our Guidelines – Becoming a participant – Applying to the NDIS (1 February 2024)(‘the Access Guideline’).[11]
[10] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[11] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 February 2024).
In Mulligan,[12] Mortimer J held that the legislation pertaining to the access criteria 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] The Full Court of the Federal Court of Australia in Foster also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[14]
[12] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’) at [55].
[13] Mulligan at [55].
[14] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’) at [44].
ISSUES IN DISPUTE
In this case, the Respondent does not dispute that the Applicant experiences physical impairments, namely reduced balance, fatigue and somnolence[15] and cognitive impairments, namely reduced concentration and poor memory arising from her diagnosis of idiopathic hypersomnia. Idiopathic hypersomnia is a neurological sleep/wake disorder characterised by excessive sleep and daytime sleepiness despite extraordinary amounts of good quality sleep.[16] The Respondent also accepts that the impairments are permanent. Accordingly, this decision focuses predominantly on the key issue in dispute, namely whether the Applicant satisfies section 24(1)(c) regarding substantially reduced functional capacity.
[15] Sleepiness, drowsiness or sleeping for unusually long periods.
[16] See footnote 1 in Report of Ms Tiffany Hayes (OT), JHB, p211.
EVIDENCE
The Applicant described herself as a previously high functioning individual. She worked as an associate lecturer at a university for 8 years, teaching political science[17] and conducting research in the field of psychology.[18] In 2014, the Tribunal understands the Applicant contracted a seasonal virus which precipitated the development of idiopathic hypersomnolence / hypersomnia disorder (IH).[19] She withdrew from PhD in 2015 “due to several factors, including her IH”.[20]
[17] Statement of ex-husband at [9].
[18] JHB, p230.
[19] JHB, p10.
[20] JHB, p215.
Dr David Cunnington, specialist sleep physician described the Applicant’s condition in 2016.
[The Applicant’s] clinical symptoms would best fit with a hypersomnia of central origin such as idiopathic hypersomnia with long total sleep time. This has also been called postinfective hypersomnia and some neurologists still refer to it as this. Typical symptoms are very similar to [the Applicant’s] symptoms, that is, long periods of sleep together with still feeling sleepy following periods of intercurrent illness with ongoing sleepiness being the persistent symptom.[21]
[21] Letter dated 12 February 2016, JHB, p172.
Psychiatrist, Dr Andrew Nielson, explained the Applicant is treated with dexampfetamine 5mg tablets, 8 per day, and methylphenidate 10mg tablets, 2 per day. The current medications have been used for 6 years (as of November 2022), following trials with other medications.[22] Dr Nielson explained, “The expected outcome of the treatment is that [the Applicant’s] condition will not improve, but the treatment does mitigate the symptoms a little”.[23]
[22] See JHB, p 174, 176 and 177.
[23] Letter dated 8 November 2022, JHB, p186.
Dr Sara Winter, clinical psychologist, reported in November 2018 that the Applicant was first referred to her in June 2017 for management of IH, on the recommendation of her sleep consultant. The Applicant attended 10 sessions to address anxiety, mood and adjustment in the content of her chronic sleep disorder and to develop cognitive strategies to maximise function and address difficulties with attention and memory.[24]
[The Applicant’s] experiences regular migraines which improve after sleep, several cognitive complaints including poor concentration, poor episodic memory, poor vigilance and attention. This impacts on her participation in the community as it is difficult to achieve wakefulness in order to attend to regular activities of daily living including Doctors appointments and taking her son to school. [The Applicant’s] drives only short distances due to her somnolence and vigilance issues, which limits her engagement in her community. [the Applicant’s] is significantly socially isolated as a consequence of the above fatigue and cognitive issues.
[24] JHB, p56.
Dr Winter found that the Applicant had:
Good hygiene and grooming, cooperative, orientated, no thought disorder noted at interview although speech is rapid and occasionally tangential. [the Applicant’s] is consistently late to her appointments, but has never failed to attend. Reactive and appropriate affect, good eye contact.[25] (Tribunal’s emphasis).
[25] JHB, p57.
She opined the Applicant would benefit from ongoing psychological support, cognitive rehabilitation with an occupational therapist (OT), engagement with an exercise physiologist and linkages to social supports and transport services.[26]
[26] JHB, p58.
As of November 2018, Dr Winter indicated the Applicant attended 10 sessions beginning in June 2017.[27] Despite the recommendation for ongoing psychological support, it appears the Applicant did not engage with Dr Winter again until June 2021.[28]
[27] JHB, p56.
[28] JHB, p10.
In August 2021, Dr Winter provided a further report following the Applicant’s re-engagement. At that time, the Applicant was the primary carer for her son, then aged 10 years old (now 13 years old) who lives with level 3 Autism Spectrum Disorder (ASD).
[The Applicant] reports a persistent decline in functioning across most areas of adaptive functioning over the past 5 years, and presents with significant concerns about her capacity to meet her own self-care needs in terms of daily routines and functioning, as well as her ability to maintain a clean home environment for both herself and her son as they both have significant allergies to household allergens such as dust mites, and a significantly limited capacity for community engagement.
…
[The Applicant] describes several cognitive complaints including poor concentration, poor episodic memory, poor vigilance and attention. This is consistent with her presentation at sessions, she is consistently late, distractable and often dominates the interview and needs to be redirected often.
…
[The Applicant] states she has very poor short-term memory, is unable to engage in physical activity, is unable to cook as this involves too many steps and is too cognitively complex, she engages in minimal driving due to poor vigilance, and cannot go shopping as this is too physically effortful.[29]
[29] JHB, p10.
The Applicant completed the Adaptive Behaviour Assessment System – Third Edition (ABAS-3) in August 2021 which is a rating scale useful for assessing skills of daily living in individuals with developmental delays, autism spectrum disorder, intellectual disability, learning disabilities, neuropsychological disorders, and sensory or physical impairments. The Applicant’s assessment was scored and interpreted by Dr Winter.[30]
[The Applicant’s] overall adaptive behavior can be characterised as lower functioning than that of most other individuals her age. [the Applicant’s]'s conceptual adaptive behavior, social adaptive behaviour, and practical adaptive behaviour can be characterised as lower functioning than that of most other individuals her age. These results are consistent with her self-report of her daily functioning as well as her presentation at our sessions.[31]
[30] JHB, p12.
[31] JHB, p12-13.

Dr Winter’s letters were addressed ‘To Whom It May Concern’ and were not completed in accordance with the Tribunal’s guideline on persons giving expert and opinion evidence.[32]
[32] See -
On 20 October 2022, Dr Winter responded to targeted questions provided by the Respondent. In this letter, Dr Winter indicated the Applicant re-engaged between June 2021 and January 2022 however she did not say how many sessions were attended. She said, “I last spoke to [the Applicant’s] on 27/9/22, who confirms that there have been no substantive change or improvement in her functioning since my last comprehensive review in August 2021 – which is consistent with the chronic nature of her conditions”.[33] (Tribunal’s emphasis). Dr Winter provided the following overview of the Applicant’s fluctuating functional capacity:
Her 'best day' she described as waking at 7.15-8.30am with multiple alarms. If she wakes to these alarms, she will attempt to have her medication and some food, and notes that she often feels nauseous. She will try to take on fluids and get some rest on the couch. At 11.30am she is able to get off the couch, take her second dose of medication and begin her self care routine of showering, getting dressed, and she will attempt to put on a load of washing or the dishwasher. This routine takes a few hours, and she will have her third dose of medication about 2pm. Her afternoon is occupied by attempting to engage with her son in developmental activities. She will attempt to retire to bed from 10pm but this can be hampered at times by her son's evening arousal. [the Applicant’s] describes about three days per week that she will inadvertently (sic) sleep through her multiple morning alarms and instead will wake between 11.45am and 1.45pm. This significantly disrupts her routine, generates anxiety and guilt, and often preceeds (sic) migraine.
On a 'bad day', which can occur up to a few days per week, [the Applicant’s] describes she cannot be roused from sleep, when awake she will feel very ill, and is unable to meet her own and son's basic care needs. She typically is unable to remember what has happened on these days.[34]
[33] JHB, p179.
[34] JHB, p184.
It appears that Dr Winter’s report was based on the Applicant’s self-reports, with no evidence of Dr Winter conducting a functional capacity assessment or attending the Applicant’s home. Dr Winter did not elaborate on how the Applicant did not meet her son’s basic care needs or whether this posed a risk to the child.
Psychiatrist, Dr Nielson responded to targeted questions on 8 November 2022, stating he had been treating the Applicant for 7 years for IH. “On her best and worst days, her functioning is more-or-less the same”.[35] He indicated, the Applicant will need the NDIS for the rest of her life “to be able to better manager her disability, for instance, she is unable to plan and manage shopping and meal preparation, though she would help to manage her symptoms and ensure she does not forget to eat”.[36] He did not provide any details of the regularity of his sessions with the Applicant or how he formed his views with respect to the Applicant’s functional capacity.
[35] JHB, p191.
[36] JHB, p191.
Respiratory and Sleep Physician, Dr Claire Ellender also provided a response to targeted questions on 29 November 2022. In relation to issues of functional capacity, she contended “[The Applicant] has pathological sleepiness which impacts her ability to sustain complex psychomotor tasks and sustained attention/concentration for extended periods”.[37]
[37] JHB, p192.
Ms Tiffany Hayes, OT, conducted an independent functional capacity assessment with the Applicant in her home on 10 July 2023 and finalised her report on 18 July 2023. Ms Hayes’ report provides the most contemporaneous expert evidence before the Tribunal and was completed in accordance with the Tribunal’s guidelines on persons giving expert evidence.[38] The Applicant told Ms Hayes she experiences approximately 21 ‘typical’ days and 3 or less ‘good’ days and 5 to 6 ‘bad days’ per month.[39] The Applicant told Ms Hayes that the day of the assessment was a ‘good day’.[40]
[38] JHB, p209.
[39] JHB, p216.
[40] JHB, p216.
A typical day was described as follows:

7:35 am First Alarm scheduled (often not heard or dismissed).

7:45am 34.      Ex-husband arrives and provides a heavy mechanical prompt to wake and get out of bed.

8:00am 35.      Second alarm scheduled. [The Applicant] estimated ‘One day a week I’m up by 8am’.

9:15 – 9:30am 36.     Ex-husband provides final mechanical prompt to wake and get out of bed, prior to leaving the home.

9:30am Third alarm scheduled.

9:30 – 10:00am 37.      On most days, up by 9:30am – 10am. Take medications. Make and eat breakfast (vegemite on toast).

11:00 – 1:00pm
38.      ‘Trying to stay awake’ until the second dose of medications at 12pm (however these do not take effect until 1-2pm).

39.     Engaging in physically passive activities only, such as listening to music and reading ABC or BBC news articles from her phone.

40.     [The Applicant] described the need to avoid any activities considered to be

41.     taxing – ‘Doing something makes you feel like you need to sit down to rest’.

42.      However, resting is reported to increase the likelihood of her falling asleep

43.     and being unable to be woken, thus jeopardising her ability to pick her son

44.     up from school. She therefore needs to engage in tasks which keep her

45.     awake but aren’t fatiguing.

46.     Napping ‘two to three times per week’ usually on the weekend when her son

47.     is with his father.

1:00pm 48.     Shower and get dressed. Heat and eat lunch. Vacuuming ‘most days’ to minimise the impact of her dust allergy.

3:00pm
‘Finally awake’. Pick up son from school
‘I am physically able to be productive when my son is here’ (from 3pm).
From 3pm, her time is spent caring for her son who is reported to have a
requirement for constant supervision to ensure his safety, due to his
disability. As such, domestic duties (other than vacuuming) do not get

49.     attended to.

6:00pm
Heat evening meal and ‘Come back to some sort of catastrophic event’ due

50.     to not supervising her son from the same room.

8:30 – 9:00pm
Attend to son’s bedtime routine, sometimes involving showering her son a

second time

10:00pm ‘My son is a night owl’ and will typically not go to sleep until around 10/11pm,
impacting what time she can go to bed.

11:00pm Fall asleep

Overnight Son sleeps in same bed which ‘impacts my quality of sleep but I get more
consolidated sleep because of this arrangement’.
‘Unpredictable/no patterns overnight. I can wake every 2-4 hours, can fall
back asleep within 30 minutes or be awake for several hours, or can sleep
through the night’

At the time of the functional capacity assessment, the Applicant was living alone with her 12-year-old son.
Her ex-husband comes over to their home each weekday morning (whilst [the Applicant] is still asleep), to support [child] to get ready for and be transported to school. From [the Applicant’s] reports (corroborated by the Paediatrician’s report within T2 – document T1B), her son requires constant supervision and physical assistance for tasks beyond what would be expected of a typically developing 12-year-old.[41]
[41] JHB, p214.
The Applicant’s living situation had changed at the time of her ex-husband’s statement, filed on 10 September 2024. Her ex-husband told the Tribunal he had moved back to live in the same house as the Applicant, which they both own, so he could continue to parent his son and because he couldn’t find anywhere to rent nearby when his tenancy ended.[42] Neither parent provided any evidence of a parenting agreement, child support arrangements and/or their son spending overnight time with the ex-husband prior to his return to the home which is a curious omission given the claimed level of the Applicant’s impairments and her ex-husband’s regular involvement in his son’s life. Further, some of the tasks which the ex-husband characterises as support for the Applicant, might properly be considered parenting responsibilities, such as helping their son get to school and preparing meals for him.[43] In the Tribunal’s view, both parents have a clear responsibility to contribute towards the child’s care and development which includes undertaking tasks to assist him with daily living.
[42] Statement of ex-husband at [10].
[43] Statement of ex-husband at [12].
Noting the key area of dispute concerns whether the Applicant has substantially reduced functional capacity in one of the 6 relevant domains under section 24(1)(c), it is useful to consider the evidence in these proceedings under each domain.
Communication
Dr Nielson opined that the Applicant’s “communication is within normal limits”. He suggested the Applicant had lost her friends because they were academics who “tend to move from place to place and she could not keep in contact with them”.[44] The Tribunal assumes this was self-reported by the Applicant.
[44] JHB, p188.
The Applicant said in her statement of lived experience (SOLE) filed in July 2022, “I do not have communicative impairments, however, my ability to be specific about dates and times is impaired by my neurological condition, which causes an impairment of memory due to impaired state of consciousness”.[45] While the Applicant clearly experiences fatigue and somnolence, there was no expert evidence suggesting the Applicant’s IH results in an ‘impaired state of consciousness’. Ms Hayes’s assessment indicated normal cognition.[46]
[45] JHB, p193.
[46] JHB, p221.
Dr Winter was of the view that the Applicant can communicate using spoken and written language and understands others. However, she suggested the Applicant’s ability to communicate her needs and maintain appropriate social conversation is impacted by excessive daytime sleepiness and ‘brain fog’.[47] Dr Winter added:
[The Applicant] requires increased time and repetition to respond to questions and engage in reciprocal conversation effectively. She also requires compensatory strategies for maintaining new information communicated to her, particularly verbally, in order to effectively action and respond.[48]
[47] JHB, p179.
[48] JHB, p179.
The Applicant’s ex-husband said “understanding her can be difficult. She will mumble or make no sense. She might tell me that the windows are too loud and when I ask what she means, she will get upset and insist she said TV”.[49]
[49] Statement of ex-husband, p4.
Ms Hayes reported that the Applicant communicates with friends and family via phone calls and text message and can write emails. The Applicant indicated to Ms Hayes that her “somnolence (causing reduced short-term memory) is primarily impacting upon her verbal and written communication through her decreased ability to be specific about details such as dates and times”.[50] Ms Hayes concluded:
[The Applicant] was observed to effectively communicate with the assessor face to face, throughout the 3.5-hour assessment conducted between 11am to 2.30pm. During this time, her self-reported somnolence levels fluctuated between 4/10 and 6/10 on a visual analogue scale (with 0 being no sleepiness and 10 being extremely sleepy).
During the assessment, her somnolence did not impact upon her expressive or receptive language. Supporting this observation, she scored full points within the Language domain of the Montreal Cognitive Assessment (MoCA). Within this assessment, she was able to accurately repeat a 13-word sentence without any omissions or substitutions. In regard to receptive language, [the Applicant] did not require increased time or repetition to respond to questions or engage effectively in reciprocal conversation. Impressively, she was also able to identify 27 words beginning with the letter F, within 60 seconds (normative data = 11 words; Nasreddine, 1996). She did, however, report difficulty recalling the content of our discussion, after one hour (whilst rating her somnolence at 4/10).[51](Tribunal’s emphasis)
[50] JHB, p219.
[51] JHB, p218
The Tribunal notes that Dr Winter’s evidence regarding the Applicant’s need for increased time and repetition is inconsistent with Ms Hayes conclusions regarding the Applicant’s functional capacity over 3.5 hours. The Tribunal prefers the evidence of Ms Hayes because it was an independent assessment using objective tests and it was conducted over an extended period, including a time of the day when the Applicant’s somnolence is reported to be particularly impactful.
Social interaction
Dr Winter said the Applicant:
has no social contact other than with her son, health professionals and her ex-husband due to excessive daytime somnolence and fatigue. All functional areas within the social domain, including the leisure skills needed for engaging in play and planning recreational and her ability to interact socially, initiate and maintain friendships are extremely impaired.[52]
[52] JHB, p180.
Dr Nielson stated, the Applicant “has no friends and is not being assisted in that area of her life”. He explained because her previous friends were academics “who tend to move from place to place” she could not keep in contact with them”.[53]
[53] JHB, p188.
The ex-husband said she has “virtually no family support… She used to be close to a few extended family members, but since her health has deteriorated, these relationships seem to have ended… [The Applicant] used to have very close friendships. For whatever reason these have ended”.[54] The ex-husband did not provide any further details about the Applicant’s friends, despite their own friendship and relationship since 2006[55] and it appears the Applicant’s estrangement from some of her family members is relatively long standing.
[54] Statement of ex-husband, at [4 – 7]
[55] Statement of ex-husband, at [1].
The Applicant said,
I have an aunt I see about 3-4 times per year. I have a cousin in Brisbane I see probably 2-3 times per year, and another on the Sunshine Coast also probably 2-3 times a year. I have a friend from high school who will occasionally deliver emergency groceries probably once every few months. I used to have a wide circle of friends and regular social activities, but sleeping through social engagements, and repeating the same stories while forgetting their significant life events seems to have been a bit of a bummer for them.[56]
[56] JHB, p194.
Ms Hayes reported that the Applicant engages in social media forums to research her son’s interests, including the game Dungeons and Dragons and that she “has had few leisure interests due to her devotion to her work” which ended in 2014.[57] The Applicant was observed to demonstrate appropriate interactions during the assessment and indicated to Ms Hayes that her social connections were largely connected to her job.[58] She reported contacting people by talking or text message almost every week, however Ms Hayes attributed the Applicant’s low Electronic Social Networking score to her “detest” for social media.[59]
Primarily, she reported having social interactions with a best friend from high school, Justin, who lives 1km away, and with cousins. She reported seeing Justin approximately once per month. She reported attributing her limited social interactions to her short-term memory loss, causing her to repeat herself in conversations or causing friends to need to repeat previous conversations. She reported perceiving friends to be frustrated with such repetition.[60]
[57] JHB, p215.
[58] JHB, p219.
[59] JHB, p219. See also JHB, p195.
[60] JHB, p219.
The Applicant’s perception about the frustration of her friends is at odds with her explanation to Dr Nielson that her friends had moved away. Ms Hayes suggested “other factors appear to compound [the Applicant’s] avoidance of or limited opportunities for social interactions” including not using public transport due to allergies or nausea triggered by cologne or perfume and attending playgrounds in the evening due to concerns about her son’s behaviour. The Applicant’s son’s ASD reportedly impacts his ability to form friendships and consequently reduces her opportunities to develop networks with school parents.[61]
[61] JHB, p219.
The Tribunal prefers the evidence of the Applicant and Ms Hayes which is relatively consistent over Dr Nielson, Dr Winter and the ex-husband who appear to have overstated the extent of the Applicant’s social isolation.
Learning
The Applicant also claimed to be affected by an impaired state of consciousness with respect to learning. She stated it is:
difficult to encode new information into memory, and also to retrieve known information in a normal/appropriate processing time. For example, I am frequently unable to recall entire events or periods of time, for instance meeting new people, or whether I have discussed a topic with someone before. It is possible that this impairment could be managed by retraining learning and memory strategies, which would be done under the direction of therapists.[62]
[62] JHB, p194.
The Applicant did not provide any further details regarding the proposed learning or memory strategies including who recommended the strategies and what type of therapist could help implement or supervise the strategies.
Dr Nielson said, “At the time of writing, [the Applicant] did not know the day or date”.[63]
[63] JHB, p188.
Dr Winter said the Applicant “describes several cognitive complaints including poor concentration, poor episodic memory, poor vigilance and attention… and will often forget appointment times and other information without several reminders and other scaffolding”.[64] It is unclear what appointments Dr Winter is referring to, noting her evidence at paragraph 22 that whilst the Applicant is routinely late, she doesn’t forget appointments. The Tribunal observes the Applicant was able to attend a significant number of conferences and directions hearings as part of these proceedings.
[64] JHB, p180.
Ms Hayes observed during her assessment:
[The Applicant] was oriented to time (day, month, year) and place. She was observed to read a consent form provided during the assessment, prior to signing, and complete a questionnaire independently and within a reasonable timeframe. She maintained appropriate attention throughout the 3.5-hour assessment and showed no signs of reduced concentration whilst presenting with 6/10 somnolence and prior to taking her second dose of medications for the day. Her score within the Attention domain of the MoCA supports this observation (score 6/6). There were no signs of difficulty organising her thoughts; with her conversation being fluid and non-tangential/on-topic. Whilst completing all tasks within the MoCA, there were no delays with [the Applicant’s] processing speed. For example, she completed the executive functioning tasks, serial seven subtraction task and abstraction tasks without any delays. The observation of no difficulties with processing speed was also evident through her ability to list 16 words above the norm, within the verbal fluency task.[65]
[65] JHB, p220.
Ms Hayes opined that the reported difficulties with the Applicant’s short-term memory were not evident during the administering of the MoCA and she could recall 5 words without any cues after an interval of approximately ten minutes (scoring 5/5).
[The Applicant] was observed to effectively employ compensatory strategies to minimise the functional impact of her reduced short-term memory. During the MoCA, she linked two words together to form a meaningful association (‘red velvet’), in turn enabling her to recall the words without cues. Compensatory strategies are also used whilst selecting alarms on her phone. For example, she uses a rattle snake sound for her medication prompts, as she associates the sound with medications being rattled within their bottle. Her morning alarm is music, rather than traditional alarms as this is considered more effective during deep sleep. She also reported ensuring that she changes her alarm sounds every few weeks, to reduce the likelihood of her becoming desensitised to the sound. This further demonstrates good insight into her functional impairments and an ability to problem solve.[66]
[66] JHB, p220-221.

The Applicant reported she could not recall the majority of one hour’s worth of content communicated during the assessment (whilst scoring 4/10 somnolence). It is not clear to the Tribunal what level of recall would ordinarily be expected following a one-hour session.[67] The Applicant’s score of 29/30 on the MoCA indicates normal cognition at the time of the assessment.[68]
[67] JHB, p220.
[68] JHB, p221.
Significantly, Ms Hayes concluded there were no safety concerns observed or reported and the Applicant structures her day to ensure maximal functional capacity when caring for her son. This appears to be consistent with the child living full time with the Applicant, with no evidence that her ex-husband has ever assumed the role of primary carer for any period, either due to concerns about the child’s safety and/or to ensure the Applicant has a break from primary care duties.[69]
[69] JHB, p221.
Mobility
Community
The Applicant reported in her SOLE that she walks to the local shops which is located 50 meters from her house provided she is “conscious and alert enough to do so”. She generally drives after midday and for “15 minutes of continuous driving”. She said, “I rely on other people to repeatedly phone me to ensure I am awake for appointments, or, in most instances, to collect things for me”.[70]
[70] JHB, p193.
Dr Nielson suggested the Applicant can drive 6 days per week, between 3pm and 10pm.[71] He opined that she needs the NDIS to drive her son to appointments and social groups, though did not state what these appointments were for, where they were located or how regularly they are scheduled.[72] It was also unclear from Dr Nielson’s evidence whether the Applicant’s ex-husband was taking their son to any appointments.
[71] JHB, p191.
[72] JHB, p191.
Dr Winter was of the view that the Applicant has “low exercise tolerance resulting from excessive daytime sleepiness which has resulted in significantly impacted capacity for mobilising around her community”. She said the Applicant described feeling lightheaded if standing for greater than 30 minutes.[73] Dr Winter also indicated the Applicant has poor exercise tolerance, is unable to engage in physical activity and cannot go shopping as it is “too physically effortful”.[74] However, Dr Winter also noted the Applicant “is responsible for the high care needs of her son, including taking him for therapy and intervention, and managing behaviour and safety around the home and community”.[75]
[73] JHB, p180.
[74] JHB, p180.
[75] JHB, p181.
The Applicant’s ex-husband provided limited evidence about the Applicant’s mobility, in terms of walking or driving. He said she “can’t’ drive long distances” and “spaces out when she goes to the shops. If she has organised a click and collect, she can manage to drive there, pick it up, and return.” He indicated the Applicant is sometimes gone for 2 hours “because she didn’t hear them call her name and lost track of time”.[76] This evidence suggests the Applicant is capable of doing online shopping and being out in shopping centres or public places for extended periods.
[76] Statement of ex-husband, p5-6.
Ms Hayes reported that the Applicant accesses the community by driving for up to 15 minutes after 1pm when her medication has taken effect. She drives to pick up her son each afternoon from the school and drives to the park at least three times a week in the evening. Ms Hayes said the Applicant receives assistance from her ex-husband to drive their son to school each morning.[77] Rather than assistance, this arrangement could perhaps be more accurately described as parenting, noting it is not the Applicant’s sole responsibility to provide additional support to their son on account of his disability.
[77] JHB, p231.
The Applicant told Ms Hayes that the day prior to the assessment she had walked 4.3km around a park with her son which she does 3 times per week.[78] She does not use public transport because she drives.[79] This evidence is inconsistent with Dr Winter’s evidence that the Applicant has poor exercise tolerance and can’t go shopping as it is too effortful. It is unclear how Dr Winter formed this opinion. The Tribunal prefers the Applicant’s report to Ms Hayes regarding her capacity to walk more than 4km several times per week, noting it is the more recent evidence. It suggests the Applicant has good capacity to mobilise around the community, whether it’s at a park or in a shopping centre.
Home
[78] JHB, p222.
[79] JHB, p215.
Ms Hayes observed the Applicant walk around her home with normal gait and pace. Ms Hayes assessed the Applicant as independent with transfers and stair use. She did not use a walking aid but reported IH results in “clumsy” movements resulting in “a few” falls in the past 12 months. Ms Hayes opined that the Applicant’s balance is likely to be reduced whilst experiencing high levels of somnolence, dizziness or visual disturbance (such as bright lights); further contributing to her falls risk.[80] There was no medical evidence of falls before the Tribunal and the ex-husband did not mention any falls in his statement.
The Applicant has a BMI of 32.5 which places in her in the obese weight range.[81] Her regular walks of more than 4km suggest she has reasonable stamina and fitness.
[80] JHB, p222-223.
[81] JHB, p221.
Self-Care
Dr Nielson said the Applicant “should not cook as she burns food if it takes more than 10 minutes to cook it”.[82] He also stated:
[The Applicant’s] showers most days. She cleans her teeth every day. She changes into clean clothes most days. She is able to take her medications, although experiences difficulty remembering when to take them despite an elaborate reminder app on her phone. [The Applicant’s]'s aunt has to telephone her to wake her up to attend appointments. This is in spite of her having several alarms. She often misses appointments for herself or her son because she has fallen asleep.[83]
[82] JHB, p190.
[83] JHB, p189.
The Applicant reported to Dr Winter that her house is unclean which contributes to her allergies (dust mites) and that “food choices are often driven by convenience (e.g. take way).”
[The Applicant] has significant troubles with organising information, which impacts her basic self-care routines including her ability to plan and eat regular and healthy meals, attend to hygiene consistently, and manager her time.[84]
[84] JHB, p180-181.
In her SOLE, the Applicant said she was receiving twice weekly domestic support from her ex-partner with grocery shopping, meals and washing. She also acknowledged that she cooked simple meals for her son including frozen or pre-prepared meals.
My own dinner is prepared by my ex who cooks once to twice a week and then portions food into reheatable servings, which I then heat as I cook for my son. My ex does not like this arrangement, fairly understandably, but is aware that I can't really cook a meal for myself. I do not use meal preparation or delivery services.[85]
[85] JHB, p195.
It is unclear why the Applicant does not use meal preparation or delivery services but is prepared to buy take-away. It is also unclear why the Applicant can cook simple meals for her son but was relying on dinners prepared by her ex-husband while they were living separately. The Tribunal notes the availability of microwave meals and/or other relatively inexpensive food options requiring limited assembly in all major supermarkets.
The ex-husband indicated in his statement the Applicant “almost never eats independently”, often skips lunch and feels sick from eating including vomiting. “When I didn’t live here and was not around in the evening, she lost a lot of weight”.[86] The Applicant’s BMI at the time of Ms Hayes’ assessment suggests the Applicant was consuming sufficient calories to maintain her general health despite the ex-husband living elsewhere. The Applicant told Ms Hayes that the medication she takes causes migraines, nausea, feeling light-headed, vertigo, reduced appetite and sensitivity to noise and lights and that she vomits about twice per month.[87] Whilst such side-effects are clearly not pleasant and impact her appetite and food choices, the Tribunal does not accept the ex-husband’s claim that the Applicant is not independent with eating.
[86] JHB, p5.
[87] JHB, p213.
Dr Winter also confirmed the Applicant uses multiple alarms to help with “remembering to take medications, attend appointments for herself and her son, however she often forgets to charge her phone or loses her phone around the house”.[88]
[88] JHB, p181.
Ms Hayes explained the Applicant can make appointments independently, however she has difficulty attending appointments on time despite the use of reminders on her phone which are set to go off 24 hours, 2 hours and 30 minutes prior to the appointment. The Applicant reportedly arranges for an aunt to phone her to remind her of important appointments however it was unclear to the Tribunal how often this occurs or why such an arrangement would be more effective than a loud alarm system or Google home. The Tribunal also observes that many medical or health service providers send reminder alerts prior to appointments.
Ms Haye’s considered the Applicant capable of effectively planning and structuring her day using strategies to manage fatigue, migraines and medication side effects.[89] The Applicant stores her medications in a dosette box which she fills herself. Ms Hayes observed the phone reminder to administer medication was effective on the day of the assessment and the Applicant took the medication from the correct compartment. With respect to collecting her medications from the pharmacy, the Applicant stated, “Technically I could, but it’s quicker if [ex-husband] does it” due to the location of the pharmacy.[90]
[89] JHB, p224.
[90] JHB, p226.
Ms Hayes considered self-limiting behaviours, noting:
[I]t is difficult to ascertain if [the Applicant’s avoidance of activities of daily living prior to 1 or 2pm is reasonably required (reportedly to not jeopardise her ability to do school-pick up and supervise her child from 3pm). I would note that my assessment was completed prior to 1pm on a day which [the Applicant] reported her functioning closely resembled a typical day of functioning and the Applicant did not present with any significant cognitive or physical limitations with no evidence of dizziness. The assessor considers that she would have had the functional capacity to independently and safely engage in a few tasks prior to her second dose of medication taking effect. Such tasks would include showering, dressing, simple meal preparation or self-management tasks such as banking.[91] (Tribunal’s emphasis)
[91] JHB, p234-235.
Ms Hayes thought self-limiting behaviours (possibly linked to her depression or anxiety identified by Dr Winter) may be limiting her function – specifically reduced initiation and motivation to engage in functional tasks. She suggested psychological interventions such as Cognitive Behavioural Therapy might help the Applicant address this.[92]
[92] JHB, p235.
Self-management
Dr Nielson said “[the Applicant’s] does not manage her finances well. Bills are paid late. She manages her own appointments, but she frequently misses these or is late”.[93] He said she was assisted by her former partner with respect to domestic tasks and grocery shopping “though this is motivated by ensuring that their son has adequate food and medications”.[94] Dr Nielson also opined, “She does need a louder alarm system and physical prompting to complete tasks, as she has become desensitised to various electronic alarms and reminders”.[95] (Tribunal’s emphasis).
[93] JHB, p189.
[94] JHB, p190.
[95] JHB, p190.
Dr Winter indicated the Applicant is currently making all decision independently.
She is able to make everyday decisions without assistance, although her cognitive difficulties impact her organisation and execution of every day choices (e.g. she will leave tasks half done, lose track of her progress, or lose the materials required to complete a task).[96]
[96] JHB, p181.
The Applicant told the Tribunal she vacuums daily and mops “about every other day” to reduce dust and associated allergies. She said her home “lacks deep cleaning and is in a constant state of disarray”. She doesn’t do washing because she tends “to forget that it is in the machine and they are left, which leads to the clothes smelling and needing to be rewashed”. She does put clothes away after they have been washed.[97] The Applicant did not provide evidence of using simple strategies or commonly used items such as a white-board, daily check-list or other visual prompts to remind her to hang out the washing.
[97] JHB, p196.
The Applicant doesn’t do gardening due to exposure to pollens and insects resulting in allergic reaction. Her ex-husband does maintenance gardening around twice a year which involves pruning and removing vines from the house. The Applicant was able to top up the water on a collection of carnivorous plants every few days, suggesting routines can be implemented and adhered to.[98] Ms Hayes noted there is no grassed area to mow and leaf litter is the primary maintenance task.[99]
[98] JHB, p196.
[99] JHB, p228.
The ex-husband told the Tribunal he emptied the kitchen bin because the smell was making the Applicant feel sick[100] though it is unclear why the Applicant couldn’t empty the bin herself. Ms Hayes observed a reminder on the Applicant’s phone to empty the bins. The Applicant also said she is independent taking out/bringing in the rubbish bins.[101] The ex-husband reported he does shopping and washing, but noted the Applicant “can do washing but she forgets she has done it” and because the laundry is dusty, it causes her a rash. He confirmed the Applicant will vacuum and wipe benches “but anything more involved than that might trigger her allergies”. The ex-husband claimed to do most of the cleaning but did not provide any details of the cleaning tasks or the regularity with which he performs such tasks.[102] There was no evidence of the Applicant or the ex-husband (as a co-owner and current resident) paying for occasional cleaning assistance. The ex-husband stated the Applicant “gets dizzy when she bends down”,[103] however there was no other evidence suggesting she is incapable of cleaning the toilet or bath/shower recess.
[100] Statement of ex-husband, p4
[101] JHB, pp 225 and 228.
[102] Statement of ex-husband, p6.
[103] Statement of ex-husband, p6.
Ms Hayes suggested the Applicant could wear a mask when undertaking laundry to minimise her exposure to dust, explore non-drowsy antihistamines and use a Google Home system to provide verbal reminders to complete particular tasks.[104] The Tribunal is satisfied that these are reasonable measures for the Applicant to take to assist her to undertake tasks of daily living.
[104] JHB, p239.
The ex-husband said the Applicant needs “ongoing support mainly in managing herself in waking and getting up, taking medication, constantly being prompted to do thing so she doesn’t fall asleep”.[105] He said she has lost her organisational abilities. “She was definitely the more organised of the two of us. She handled all the admin and planning, as well as many domestic tasks. She is no longer able to do this”. However, the ex-husband confirmed the Applicant still pays household bills including rates, phone and internet.[106] There was no evidence before the Tribunal about mortgage payments, other household financial arrangements or debts associated with the systemic late payment of bills.
[105] Statement of ex-husband at [15].
[106] Statement of ex-husband, p7.
The Applicant told Ms Hayes her ex-husband provides a “heavy mechanical prompt” at 7:45am to wake her up and get her out of bed and a “final mechanical prompt” at 9:15 – 9:30am.[107] The ex-husband said the Applicant “requires manual assistance to actually get out of bed… She will only stay awake if she is forced to get up”.[108]
[107] JHB, p216.
[108] Statement of ex-husband, p4.
Ms Hayes noted the Applicant carefully considers her suitability to drive, independently pursued her internal review request and appeal to this Tribunal and set up direct debit to manage bill payments.[109]
[109] JHB, p225.
13-year-old son and his NDIS plan
As mentioned above, on 14 October 2024, the Applicant filed a copy of her son’s NDIS plan dated 9 September 2024 and a Functional Capacity Assessment Report (FCA report) dated 15 March 2024 by OT Ms Mikayla Eggins.
The FCA report confirmed that the child has a diagnosis of ASD (Level 3) and a “complicated presentation in relation to his communication and social skills”.[110] His skills in all functional domains were found to be well below what would typically be expected for a child his age and his Mum was providing a significant amount of support during activities of daily living. Ms Eggins considered the Applicant to be at high risk of carer burnout.[111]
[The child] currently resides with his Mother ([the Applicant’s]) in their privately owned home in Brisbane. [the Applicant’s] does not currently engage in paid employment, due to her own significant health issues. She is also required to be at home so that she is able to meet [the child’s] substantial day to day needs in the home. His father lives nearby and visits regularly to help with school drop off a couple of mornings a week and helping with errands such as delivering groceries when he is available to do so.[112]
[110] Functional Capacity Assessment Report for the Applicant’s son dated 15 March 2024 (E4), p1.
[111] Functional Capacity Assessment Report for the Applicant’s son dated 15 March 2024 (E4), p1 and p18.
[112] Functional Capacity Assessment Report for the Applicant’s son dated 15 March 2024 (E4), p2
Ms Eggins opined that the Applicant’s health issues “adds a significant safety risk for [the child] due to her very high sleep needs and at time vacant episodes”.[113] There was no other information about the involvement of the child’s father except a brief reference on page 12 of the report.
[113] Functional Capacity Assessment Report for the Applicant’s son dated 15 March 2024 (E4), p2
It was reported by Ms Eggins that the child had been accessing OT since December 2022 however monthly speech pathology sessions had ceased. The Applicant was in the process of commencing with a Support Coordinator to assist with engaging and communicating with providers.[114] It was unclear what, if any, support the father was providing in respect of arranging appointments for their son.
[114] Functional Capacity Assessment Report for the Applicant’s son dated 15 March 2024 (E4), p3.
The child has apparently settled into high school “quite well with additional support” despite being “mostly homeschooled during 2022 as [the Applicant] reports his needs were not being sufficiently met in the classroom and reports the school was unable to provide suitable support”.[115] (Tribunal’s emphasis). This information was not provided in earlier documents nor mentioned by the Applicant’s treating practitioners. It suggests the Applicant was providing a much greater level of assistance and support to her son throughout the day in 2022, rather than solely in the late afternoon and evenings, as previously reported.
[115] Functional Capacity Assessment Report for the Applicant’s son dated 15 March 2024 (E4), p3.
On 9 September 2024, the child’s new statement of participant supports was approved following an unscheduled reassessment pursuant to section 48 of the NDIS Act. The plan totals $90,759 of funding for a range of capacity building supports and includes plan management costs and level 2 support coordination.
This additional evidence supports a conclusion that for some time the Applicant has done the lion’s share of parenting for a 13-year-old boy with high disability support needs, in addition to dealing with her own impairments. It also casts doubt on the claim that her ex-husband takes their son to school every morning. However, the child’s plan is the appropriate place to deal with the child’s reasonable and necessary supports including any question of respite for the Applicant as primary carer. The Tribunal observes that the NDIS supports do not replace parenting obligations and any consideration of respite supports for the Applicant under the child’s plan would likely take account of what is reasonable to expect both parents to provide pursuant to section 34(1)(e) of the Act.
CONSIDERATION

For the Applicant to gain access to the Scheme, the Tribunal must be positively satisfied that all the access criteria in either the disability requirements or the early intervention requirements are met. The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[116]
[116] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
Disability - Subsection 24(1)(a)
The Respondent accepts that subsection 24(1)(a) is met with respect to the Applicant’s physical impairments. The term ‘impairment’ is “generally understood as involving the loss or damage to a physical, sensory of mental function”.[117]
[117] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at 212 [51].
The Tribunal finds that the Applicant has a disability attributable to physical and cognitive impairments, namely:
·reduced balance;
·fatigue and somnolence
·reduced concentration; and
·poor memory
The Tribunal finds that these impairments arise in the context of the Applicant’s diagnosis of IH. She meets section 24(1)(a) of the Act.
While there was some evidence in the material before the Tribunal of allergies, depression, anxiety and migraines, the Tribunal is not satisfied on the evidence that these conditions result in an impairment.
Permanence – Subsection 24(1)(b)
The Respondent also concedes that the Applicant’s impairments are permanent which means they are enduring.[118] Rule 5.4 of the Access Rules deem that 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. Davis outlines that a ‘remedy’ should be ‘understood to mean something approaching a removal or cure of the impairment’.[119]
[118] National Disability Insurance Agency v Davis [2022] FCA 1002 at [85] – [87]
[119] Ibid.
The Tribunal is satisfied the Applicant has engaged with a psychiatrist, psychologist and sleep physician over several years and had trialled various medications and wakefulness promoting agents to address her impairments. It is also accepted there is no cure for IH. The Tribunal finds the Applicant’s impairments are permanent for the purpose of section 24(1)(b).
Substantially reduced functional capacity – Subsection 24(1)(c)
Under section 24(1)(c) of the Act, the Tribunal must be satisfied that the above permanent impairments result in substantially reduced functional capacity to undertake one or more of the activities of communication, social interaction, learning, mobility, self-care or self-management.
The test in subsection 24(1)(c) is one of objective functional capacity and requires the Tribunal to consider both what the person can and cannot do.[120] The Tribunal must also distinguish between what the person does not do, as opposed to what they cannot do.[121]
[120] Mulligan at [55].
[121] Timofticiuc and National Disability Insurance Agency [2021] AATA 3015 at [96].
In respect of subsection 24(1)(c) of the Act, Rule 5.8 of Access Rules prescribe circumstances or criteria to be applied in assessing whether the Applicant’s impairments result in a substantially reduced functional capacity to undertake tasks of daily living in one or more of the six relevant domains:
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.[122]
[122] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth).
In Mulligan,[123] Mortimer J explained that rule 5.8 of the Access Rules is a deeming provision; that is, if a person’s circumstances are caught by its terms, they must be taken to have a substantially reduced functional capacity for the purposes of subsection 24(1)(c). However, her Honour was clear that considering a person’s circumstances through the prism of rule 5.8 is only part of the statutory task. If the deeming provision is not met, the decision maker must proceed to consider whether, regardless of rule 5.8, a person’s functional capacity is substantially reduced in any of the six domains of activity.[124] The Access Guidelines naturally inform this task.
[123] Mulligan at [66-67].
[124] Mulligan at [77].
The word “substantially” carries a high threshold in section 24(1)(c). Its meaning should be considered in the context that the NDIS was not intended to provide reasonable and necessary supports to every person with a disability. In assessing the Applicant's functional capacity, the Tribunal will take a 'wholistic' approach to determine what the Applicant can and cannot do. As the Tribunal said in Madelaine, having a substantially reduced functional capacity to care for oneself “imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being”.[125]
The application of rule 5.8: the deeming provisions
[125] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [121].
Rule 5.8(a)
This deeming provision requires the Tribunal to consider whether the Applicant needs assistive technology or equipment to effectively undertake one of the relevant activities.
Ms Hayes did not specifically recommend any assistive technology or equipment in her report. She suggested a commonly used item, such as Google Home, could be programmed to provide verbal prompts or reminders along with the existing commonly used technology that the Applicant uses, such as alarm clocks and her phone. Ms Hayes thought a shower chair or kitchen perching stool might assist in reducing the occurrence of the Applicant becoming light-headed whilst standing, however there was no evidence of this being a major concern for the Applicant.[126]
[126] JHB, p241.
The Tribunal is not satisfied Rule 5.8(a) applies to the Applicant.
Rule 5.8(b)
Under this rule, the Tribunal must consider the specific task or tasks that the Applicant usually requires assistance with to determine whether, overall, she experiences a substantial reduction of her functional capacity in the activity. The term ‘assistance’ incorporates physical assistance, guidance, supervision or prompting.
There was no evidence that the Applicant requires assistance form her ex-husband or anyone else in relation to communication, social interaction, learning and mobility and therefore Rule 5.8(b) does not apply to those domains. The Tribunal will consider assistance from the Applicant’s ex-husband and Aunt under the domains of self-care and self-management below.
Rule 5.8(c)
It is clear from the evidence that rule 5.8(c) is not relevant to the Applicant due to her current level of functional capacity.
Communication
The Guidelines require the Agency to consider – “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”.[127]
[127] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
The Tribunal accepts that the Applicant has experienced some reduction in her capacity to communicate including retaining information and responding in conversation. However, the evidence of Dr Winter, Dr Nielson and Ms Hayes all suggest the Applicant communicates within the normal rage. The Tribunal finds that she was able to effectively communicate for 3.5 hours during the functional capacity assessment which commenced at 11am, some 2 hours before the Applicant usually begins to reach her period of optimal functioning. She also scored full points within the language domain of the MoCA, during a day described as ‘typical’.
The Tribunal finds the Applicant is independent in the domain of communication.
Social Interaction
The Access Guideline refers to socialising as “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”.[128] This domain requires the Tribunal to focus primarily on the skills of social interaction, not the opportunity to exercise the skills.[129]
[128] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
[129] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [87]; Nika v
Whilst the Tribunal accepts that the Applicant has a rather limited social circle, the Tribunal finds that she has maintained some connections with friends and family despite the challenges associated with her IH. The Applicant reported that she sees her friend Justin about once per month, another friend every few months, an Aunt 3 or 4 times per year and a cousin in Brisbane 2 or 3 times per year. She is also currently co-parenting with her ex-partner living in the same house. Ms Hayes observed the Applicant to behave in a socially appropriate manner during the assessment.
The Tribunal is of the view that other factors beyond the Applicant’s physical and cognitive impairments appear to contribute to the Applicant’s difficulties developing and maintaining a wider circle of friends. These include her allergies, her son’s disability, limited hobbies/ interests, tension with her family of origin, depression or anxiety and Dr Winter’s observation that the Applicant may at times dominate an interview.[130]
[130] JHB, p10.
Fatigue, reduced concentration and poor memory undoubtedly impact the Applicant’s capacity for social interaction; however, the evidence does not support a conclusion that she experiences substantially reduced functional capacity in this domain.
Learning
This is “how you learn, understand and remember new things, and practise and use new skills”.[131]
[131] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
Like communication and social interaction, the Applicant’s impairments have affected her ability to concentrate and remember information or tasks. However, the Applicant performed well on the MoCA and Ms Hayes did not observe any difficulties with her processing speed or thought disorder. The Applicant was able to employ compensatory strategies to assist her to remember to take medications and attend appointments. She also reported reading ABC and BBC news articles and researched her son’s interests on social media.
The Applicant reported difficulty learning the rules to her son’s Dungeons and Dragons game and sewing skills (despite spending hours watching tutorials).[132] These examples suggest the Applicant still retains the ability to concentrate and learn new skills, despite it being more difficult due to her impairments. She was found to have normal cognition at the time of the assessment with Ms Hayes.
[132] JHB, p221.
The ex-husband suggested in his statement filed in September 2024 that the Applicant can no longer read news stories (but will play her son’s video games despite it giving her motion sickness).[133] The ex-husband’s claim about reading reflects a dramatic reduction in the Applicant’s capacity which was not accompanied by any expert or corroborating evidence. On the contrary, the medical evidence suggests relative consistency in terms of the decline in the Applicant’s functional capacity over several years, noting some of the medical reports date back to 2016.[134] The ex-husband did not provide any other evidence during the proceedings despite the matter being before the Tribunal for over 2.5 years. For this reason, the Tribunal prefers the evidence of the Applicant and Ms Hayes in relation to this issue.
[133] JHB, p2.
[134] See JHB p172, p174, p177 and p10.
The Tribunal finds the Applicant does not have substantially reduced functional capacity in the domain of learning.
Mobility
Mobility, or moving around which is described in the Guidelines as “how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs”.[135]
[135] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
In Madelaine[136], the threshold requirement to achieve functional capacity in relation to mobility was found to be ‘relatively modest’. There was no suggestion that the Applicant is unable to access important or regular locations in her community due to her reduced driving capacity. The evidence confirms she can drive up to 15 minutes and drives to her son’s school each day and regularly attends appointments, the park and the shops. She also walks around 4.3km three times per week, suggesting she has reasonable fitness and stamina to walk around shops, the park and other locations in the community.
[136] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [104].
The Applicant was observed to mobilise around her home independently and can complete all essential transfers and climb stairs without assistance. She also vacuums most days. Whilst the Applicant did report some falls, she did not provide details about how they occurred, simply describing ‘clumsy’ movements. The Tribunal cannot be satisfied that falls or the risk of falls interfere with her ability to mobilise independently.
Whilst the Applicant has experienced a reduction in her ability to drive longer distances, such as driving to the coast to visit extended family members[137] and reduced physical activity in the mornings due to fatigue, the Tribunal is satisfied that the Applicant can mobilise independently and access key sites and services in her community. She therefore does not have substantially reduced functional capacity in the activity of mobility.
[137] Statement of ex-husband, p6.
Self-care
The Access Guideline describes self-care as “personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bath, eat or go to the toilet”.[138]
[138] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
The Tribunal acknowledges that there can be some overlap between the domain of self-care and self-management and will use the descriptions contained in the guidelines to delineate between the two domains. For this reason, I will deal with cleaning tasks under self-management and appointments (noting many relate to health) under self-care.
The Applicant filed a letter on 14 October 2024 from Dr Ellender dated 3 April 2024 noting that she did not attend a medical appointment the same day. Dr Winter suggests “she consistently arrives late” rather than forgetting to attend, and noted the Applicant was responsible for taking her son to therapy and other interventions for his ASD.[139] The Applicant has implemented a range of strategies to support her attendance at appointments including multiple alarm systems, and at times, phone call reminders from her Aunt. It was unclear how often her Aunt provides reminders or why a phone call from her is more effective than an alarm or device such as Google home. The evidence does not suggest the ex-husband has assumed some or all responsibility for their child’s medical or allied health appointments. There was no evidence the Applicant has failed to pick her son up from school. The Tribunal accepts that the Applicant struggles to attend appointments on time however it is not satisfied she regularly fails to attend appointments, noting she attended 15 Tribunal events.
[139] JHB, p11
Having considered the evidence and accepting the Applicant can walk 4.3km three times per week and stand for up to 30 minutes at a time[140], the Tribunal finds that the Applicant can do the following:
·perform all personal care tasks independently and with sufficient regularity to maintain good hygiene. These tasks include showering, toileting, brushing teeth, grooming and changing clothes. (The Tribunal is satisfied that the Applicant’s decision not to go to a hairdresser in 5 years reflects her personal choice to grow her hair for a wig and is not due to an impairment).[141]
·prepare/cook simple meals or microwave pre-prepared meals,
·do online shopping.
·purchases items from the shops or pharmacy.
·attend most of her appointments, albeit often late.
·take her son to his appointments.
·play with and supervise her son’s behaviour each afternoon / evening.
·oversee personal care of son and put him to bed.
[140] JHB, p11.
[141] JHB, p224.
The Tribunal is satisfied on the evidence that because the Applicant can make or heat simple meals for her son, she can also do it for herself. The Tribunal accepts that there has been an arrangement in the past that her ex-husband cooks meals for her, however it is not satisfied the Applicant usually requires assistance from her ex-husband for meals within the meaning of the rule.
The Tribunal is not satisfied on the evidence that the Applicant usually requires the assistance of her Aunt to remember appointments. While her Aunt may remind the Applicant from time to time, there was insufficient evidence to satisfy the Tribunal that such reminders were either regular or essential, noting the availability of other reminder options including alarms and Google Home. Further, even if the Tribunal was satisfied that the Applicant usually required the assistance of her Aunt to remind her of appointments, the Tribunal would not be satisfied that this task was sufficiently central to the activity of self-care to engage Rule 5.8(b) due to the availability of other alarm options. Foster decided that it was an error to apply the NDIA’s guidelines in a way as to equate a person’s inability to undertake one task forming part of self-care (in that case, toileting) and to deem this to be the relevant activity for which functional capacity was required to be assessed. Katzmann, Perry and Derrington JJ observed that:
Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of “self-care”, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.[142]
[142] Foster at [64-65].
The Tribunal finds Rule 5.8(b) does not apply to the Applicant in relation to self-care.
Noting the tasks that the Applicant can do at paragraph128, the Tribunal is not satisfied the Applicant experiences substantially reduced functional capacity in the domain of self-care.
Self-management
This is “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”.[143]
[143] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p9.

Having considered the evidence, the Tribunal finds the Applicant can:
·take medications using alarm system and dosette box
·collect her son from school each afternoon.
·home-school her son for most of 2022.
·use a washing machine and pack away clothes.
·vacuum and mop multiple times per week.
·takes the rubbish out and brings the bins in.
·wipe benches / (and by virtue of this, a bathroom vanity).
·use dishwasher / do dishes.
·manages finances / pay bills (including through direct debit), albeit often late.
The Tribunal is satisfied the Applicant can do the washing but often doesn’t do it due to concerns about forgetting to hang it out or aggravating her allergies. The explanations put forth by the Applicant and her ex-husband regarding the difficulties associated with this task were rather unconvincing, suggesting a tendency towards resignation rather than proactive problem solving. The Tribunal is satisfied that there are additional visual and/or auditory prompts that could be used to remind the Applicant to empty the washing machine. Further, cleaning up the laundry and/or wearing a face mask when doing the washing would reduce the risk of the Applicant having an allergic reaction to dust. There was no evidence that the Applicant has ever forgotten to collect her son from school, and she regularly watered carnivorous plants, suggesting good routines can be implemented and adhered to, particularly when the tasks are considered important.
There was insufficient evidence to satisfy the Tribunal that the Applicant could not clean the toilet or shower/bath. The Tribunal accepts the ex-husband does limited gardening about twice a year, noting there is no grass.
The Applicant indicated she relies on her ex-husband to provide a “heavy mechanical prompt” to wake her up and get her out of bed and the ex-husband said she requires “manual assistance to actually get out of bed”. The Tribunal notes that the relatively recent OT report dated 15 March 2024 states the Applicant mostly home-schooled the child during 2022 and that the father takes the child to school “some days”. The Tribunal is satisfied that this information was reported by the Applicant and casts doubt on her previous evidence that her ex-husband takes the child to school each morning. The Applicant did not provide an explanation about weekend or holiday arrangements with respect to the child.
The Tribunal accepts that the ex-husband may help to wake up the Applicant from time to time, but the Tribunal is not satisfied on the evidence that the Applicant usually requires the assistance of her ex-husband to get up. Dr Nielson recommended a louder alarm clock and Ms Hayes reported the Applicant was able to get up without assistance on the morning of the assessment. The Tribunal is not satisfied the Applicant usually requires the assistance of her ex-husband to get up, nor that she usually requires his assistance with the other tasks that form the activity of self-management. The Tribunal finds Rule 5.8 is not engaged in the domain of self-management.
Noting the tasks that the Applicant can do at paragraph 134, the Tribunal is not satisfied the Applicant experiences substantially reduced functional capacity in the domain of self-management.
Social and Economic Participation – Subsection 24(1)(d)
The Respondent accepts that the Applicant’s impairments affect her capacity for social and economic participation. Noting the Applicant is no longer able to work and has experienced a reduction in her capacity to socialise, the Tribunal agrees this is an appropriate concession to make. The Applicant meets subsection 24(1)(d).
Lifetime NDIS assistance – Subsection 24(1)(e)
The Respondent contended that subsection 24(1)(e) of the Act only arises for consideration if the Tribunal finds the threshold requirement of subsection 24(1)(c) is met. This is because, where a person’s impairment does not result in a substantially reduced functional capacity, the Tribunal could not be satisfied that the person is likely to require NDIS supports for her lifetime. The Tribunal agrees and finds the Applicant does not meet subsection 24(1)(e).
SECTION 25 – EARLY INTERVENTION
Having concluded the Applicant does not satisfy section 24, the Tribunal is now required to consider her access to the scheme under section 25.
Impairment is likely to be permanent – Subsection 25(1)(a)
The Tribunal has found that the Applicant’s impairments are permanent for the purposes of subsection 24(1)(b), and therefore this section is also met.
Reducing the need for future support – Subsection 25(1)(b)
Subsection 25(1)(b) of the Act requires the decision maker to be satisfied the provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability.
Rule 6.9 requires the decision maker to consider the following matters when determining whether the provision of early intervention supports is likely to benefit the person by reducing the person’s future needs for support.
(a) the likely trajectory and impact of the person’s impairment over time; and
(b) the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity and in reducing their future needs for support;
…
The Respondent contended that the Applicant’s impairments are long-standing and have not improved despite pharmacological therapy. The supports recommended or alluded to by Dr Winter and Dr Nielson, including assistance with transport, shopping, and/or cooking, are ongoing core supports. There was limited evidence that capacity building supports are likely to provide a long-term benefit or decrease the Applicant’s need for future supports in the long term. Ms Hayes suggested the Applicant may benefit from cognitive behavioural therapy (CBT), but there was no evidence the Applicant has engaged consistently under a regular mental health plan, despite Dr Winter making a similar suggestion. Further, Ms Hayes thought CBT might help address self-limiting behaviours possibly connected with depression and anxiety rather than an impairment arising specifically from IH. Dr Winter thought the Applicant would be assisted by engaging with an exercise physiologist. Noting the Applicant’s ability to walk more than 4km 3 times per week, it is unclear on what basis this recommendation was made.
The Tribunal is not satisfied that there are available early intervention supports that would benefit the Applicant by reducing her future need for support. Accordingly, the Applicant does not meet section 25(1)(b) of the Act.
As the Applicant has not met either the disability requirements or the early intervention requirements of the Act, the Tribunal must affirm the decision under review. Should the Applicant’s functional capacity change in the future, she may make a further NDIS access request before turning 65 years of age.
The Tribunal accepts that there are additional challenges associated with the Applicant raising her son who lives with ASD, particularly his need for greater assistance or supervision with tasks of daily living. If the Applicant believes there are additional reasonable and necessary supports that should be included in her son’s plan, she can seek a reassessment of his plan pursuant to section 48 of the Act or submit a change in circumstances form. The same internal and external review options apply to any decision in relation to his plan.
DECISION
The Tribunal affirms the decision under review.

Date(s) of hearing: 18 November 2024 (On the Papers)

Applicant: Self-Represented

Solicitors for the Respondent:
Maddocks Lawyers

National Disability Insurance Agency [2021] AATA 2127 at [241]

[2024] ARTA 184

13 December 2024

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Judicial Review

Substantially Reduced Functional Capacity

Permanent Impairments

Access to Disability Scheme

Medical Evidence

7:35 am	First Alarm scheduled (often not heard or dismissed).
7:45am	34. Ex-husband arrives and provides a heavy mechanical prompt to wake and get out of bed.
8:00am	35. Second alarm scheduled. [The Applicant] estimated ‘One day a week I’m up by 8am’.
9:15 – 9:30am	36. Ex-husband provides final mechanical prompt to wake and get out of bed, prior to leaving the home.
9:30am	Third alarm scheduled.
9:30 – 10:00am	37. On most days, up by 9:30am – 10am. Take medications. Make and eat breakfast (vegemite on toast).
11:00 – 1:00pm	38. ‘Trying to stay awake’ until the second dose of medications at 12pm (however these do not take effect until 1-2pm). 39. Engaging in physically passive activities only, such as listening to music and reading ABC or BBC news articles from her phone. 40. [The Applicant] described the need to avoid any activities considered to be 41. taxing – ‘Doing something makes you feel like you need to sit down to rest’. 42. However, resting is reported to increase the likelihood of her falling asleep 43. and being unable to be woken, thus jeopardising her ability to pick her son 44. up from school. She therefore needs to engage in tasks which keep her 45. awake but aren’t fatiguing. 46. Napping ‘two to three times per week’ usually on the weekend when her son 47. is with his father.
1:00pm	48. Shower and get dressed. Heat and eat lunch. Vacuuming ‘most days’ to minimise the impact of her dust allergy.
3:00pm	‘Finally awake’. Pick up son from school ‘I am physically able to be productive when my son is here’ (from 3pm). From 3pm, her time is spent caring for her son who is reported to have a requirement for constant supervision to ensure his safety, due to his disability. As such, domestic duties (other than vacuuming) do not get 49. attended to.
6:00pm	Heat evening meal and ‘Come back to some sort of catastrophic event’ due 50. to not supervising her son from the same room.
8:30 – 9:00pm	Attend to son’s bedtime routine, sometimes involving showering her son a second time
10:00pm	‘My son is a night owl’ and will typically not go to sleep until around 10/11pm, impacting what time she can go to bed.
11:00pm	Fall asleep
Overnight	Son sleeps in same bed which ‘impacts my quality of sleep but I get more consolidated sleep because of this arrangement’. ‘Unpredictable/no patterns overnight. I can wake every 2-4 hours, can fall back asleep within 30 minutes or be awake for several hours, or can sleep through the night’

Date(s) of hearing:	18 November 2024 (On the Papers)
Applicant:	Self-Represented
Solicitors for the Respondent:	Maddocks Lawyers