RZLV and National Disability Insurance Agency (NDIS) - [2024] ARTA 294

RZLV and National Disability Insurance Agency (NDIS) [2024] ARTA 294 (12 November 2024)
Applicant/s:  RZLV
Respondent:  National Disability Insurance Agency
Tribunal Number:                2022/9774

Tribunal:General Member Dodd
Place:Perth
Date:12 November 2024

Decision:The Tribunal sets aside the decision under review and in substitution decides that the Applicant meets the access criteria under section 21 of the National Disability Insurance Act 2013 (Cth).

.............[SGD]...........................................................
General Member Dodd
Catchwords
NATIONAL DISABLITY INSURANCE SCHEME – access to the scheme – bipolar disorder type II – obsessive compulsive disorder – autistic spectrum disorder – generalised anxiety disorder – disability requirements – whether impairments result in substantially reduced functional capacity to undertake one or more of the six prescribed activities – whether lifetime support under the NDIS is likely to be required – decision under review set aside and substituted
Legislation
Administrative Review Tribunal Act 2024 (Cth) ss 23, 70(1), 70(2)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 20, 21, 21(1), 22, 23, 24, 24(1), 24(1)(a), 24(1)(b), 24(1)(c), 24(1)(d), 24(2), 24(3), 25, 27, 99, 100(6), 209(1)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 ss 125, 126
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) rr 5.4, 5.5, 5.6, 5.7 5.8, 5.8(a), 5.8(b). 5.8(c)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rr 7.6, 7.7
Cases
Kilgallin and National Disability Insurance Agency [2017] AATA 186
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Agency v Davis [2022] FCA 1002
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Young and National Disability Insurance Agency [2014] AATA 401
Secondary Materials
National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) < align="center">Statement of Reasons
BACKGROUND

RZLV (the Applicant) is a 25-year-old woman who seeks access to the National Disability Insurance Scheme (NDIS). The Applicant has been diagnosed with bipolar affective disorder type 2 (BPAD II), obsessive compulsive disorder (OCD), generalised anxiety disorder (GAD)[1] and autistic spectrum disorder (ASD).[2]
[1] R1, T Documents, T1A, page 20.
[2] R1, #6, page 58.
The Applicant is a qualified teacher currently working four days per week as a Learning Support Coordinator at a primary school located about a 20-minute drive away from her residence. Her parents live about a 45-minute drive away.[3] She receives informal support primarily from her partner and her mother. At work she receives informal support primarily from her line-manager, Ms LM.
[3] R1, #5, page 7.
Pursuant to section 70(1) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) the Tribunal made an order on 31 October 2024 that prohibited the disclosure of information that may identify the Applicant. In accordance with those orders, the pseudonym, RZLV, is used instead of the Applicant’s name in this Decision. The Tribunal has used a further set of pseudonyms (for the names of the Applicant’s medical and allied health professionals and lay witnesses) to anonymise information that may lead to the identification of the Applicant. The Tribunal also made an order, pursuant to section 70(2) of the ART Act that excludes the publication of certain evidence in this Decision.
On 26 July 2022, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA or Respondent) made a decision under section 20 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) to refuse the Applicant’s request to access the NDIS (the Original Decision) on the basis she did not meet the access criteria set out in the Act.[4]
[4] R1, T Documents, T2, page 55.
On 24 October 2022, the Respondent received a request from the Applicant for internal review of the Reviewable Decision under section 99 of the NDIS Act.
On 10 November 2022, a delegate of the CEO of the Respondent affirmed the Original Decision under section 100(6) of the NDIS Act. The delegate found that the Applicant satisfied the age requirements (section 22 of the NDIS Act) and the residence requirements (section 23), but not the disability requirements (section 24) or the early intervention requirements (section 25). With regards to section 24 criteria, the reviewer was satisfied that the Applicant met subsection 24(1)(a) in that she had a disability attributable to GAD, OCD and BPAD II. The reviewer was not satisfied that the remaining criteria in subsection 24(1) had been met. [5] This is the Reviewable Decision before me.
[5] R1, T Documents, T2, pages 55 and 59-60.
On 29 November 2022, the Applicant lodged an application to the then Administrative Appeals Tribunal (AAT), seeking review of the Reviewable Decision denying her access to the NDIS.[6]
[6] R1, T Documents, T1, page 1.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the ART Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Administrative Review Tribunal. The ART Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
LEGISLATION
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Amending Act) commenced on 3 October 2024. An issue arises in relation to the Applicant’s Tribunal application, being whether the Tribunal should apply provisions of the NDIS Act as they were in force prior to the commencement of the Amending Act on 3 October 2024, or whether the amended provisions in force as of 3 October 2024 should be applied instead.
The age (section 22) and residence (section 23) requirements remain unchanged in the NDIS Act. However, sections 21, 24 and 25 of the NDIS Act have been amended by the Amending Act.
Under section 125 of the Amending Act, the section 21 amendments apply to access requests that are made to the NDIA by a prospective participant on or after 3 October 2024.
Under section 126 of the Amending Act, the section 24 and section 25 amendments apply to access requests that are made to the NDIA by a prospective participant on or after 3 October 2024.
This means these amendments will only apply to access matters that are before the Tribunal when an original decision and an internal review decision have been made in accordance with the new Amending Act requirements.
Section 126 of the Amending Act also provides that the NDIS rules continue to apply (under section 27 of the NDIS Act as in force before 3 October 2024).
As the Applicant’s request for access to the NDIS was made before 3 October 2024, the Tribunal application should be determined in accordance with the NDIS Act and the NDIS rules as they existed before the commencement of the Amending Act on 3 October 2024.
The objects of the Act are set out in section 3 of the NDIS Act. These include giving effect to Australia’s obligations under the Convention of the Rights of Persons with Disabilities[7]; supporting the independence and social and economic participation of people with a disability; providing reasonable and necessary supports for participants; and enabling people with disability to exercise choice and control in pursuit of their goals. Section 4 sets out general principles guiding actions under the Act. These include that people with disability have the same right as other members of society to realise their potential and should be supported to participate in and contribute to social and economic life. They should also have certainty that they will receive the care and support that they need over their lifetime. I have considered the objects and general principles of the Act in making my decision.
[7] Australian Treaty Series [2008] ATS 12.
To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:[8]
(1)A person meets the access criteria if:
(a)    the CEO is satisfied that the person meets the age requirements (see section 22); and
(b)    the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)    the CEO is satisfied that, at the time of considering the request:
(i)the person meets the disability requirements (see section 24); or
(ii)the person meets the early intervention requirements (see section 25).
[8] s 21(1) of the NDIS Act before the commencement of the Amending Act on 3 October 2024.
There is no dispute the Applicant satisfies the age and residence requirements. Accordingly, the matters in issue are whether the Applicant satisfies the access criteria in section 24 (the disability requirements) or section 25 (the early intervention requirements) of the NDIS Act.
Section 24 of the Act states:[9]
[9] s 24 of the NDIS Act before the commencement of the Amending Act on 3 October 2024.
(1)A person meets the disability requirements if:
(a)    the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)    the impairment or impairments are, or are likely to be, permanent; and
(c)    the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self care;
(vi)self management; and
(d)    the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)    the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
The Respondent has submitted that they accept that the Applicant meets the criteria in paragraphs 24(1) (a), (b) and (d) of the NDIS Act in respect of her psychosocial disability attributable to one or more impairments arising from GAD, OCD, BPAD II and ASD.[10]
[10] R1, #9, page 145 at [17]; #10, page 163 at [27].
If the Applicant does not meet the disability requirements, I will consider whether she meets the early intervention requirements set out in section 25 of the Act which state as follows:[11]
[11] s 25 of the NDIS Act before the commencement of the Amending Act on 3 October 2024.
(1)A person meets the early intervention requirements if:
(a)    the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)is a child who has developmentaldelay; and
(b)    the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)    the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note:        In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(1A)For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)    as part of a universal service obligation; or
(b)    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(Original emphasis.)
The Minister may, under section 27 and subsection 209(1) of the NDIS Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation. The Tribunal is bound to apply the legislation as enacted, including the Access Rules.
The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[12] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guideline).[13]
[12] Re Drake and Minister for Immigration and Ethnic Affairs(1979) 2 ALD 634.
[13] National Disability Insurance Agency, Our guidelines – becoming a participant – Applying to the NDIS – Pre-legislation changes, (14 October 2024).
ISSUES BEFORE THE TRIBUNAL
There is no dispute that the Applicant has a disability attributable to one or more impairments arising from GAD, OCD, BPAD II and ASD (paragraph 24(1)(a) of the NDIS Act). It is also common ground between the parties that the Applicant’s impairment or impairments are permanent (paragraph 24(1)(b)) and affect her capacity for social or economic participation (paragraph 24 (1)(d)). Having regard to the evidence before me, I agree with this view. Nevertheless, I will need to consider with some precision the impairment or impairments attributable to the psychosocial disability, because the threshold questions on reduced functional capacity operate not on the concept of disability, but on the concept of impairment.[14] The concept of impairment is generally understood as involving the loss of, or damage to, a physical, sensory or mental function.[15]
[14] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [51] (Mulligan).
[15] Mulligan at [51].
The Respondent contends that the Applicant’s psychosocial disability attributable to one or more impairments arising from GAD, OCD, BPAD II and ASD, does not result in substantially reduced functional capacity to undertake any of the six activities described in paragraph 24(1)(c) of the NDIS Act.[16]
[16] R1, #10, page 163 at [31].
The Respondent also contends that in circumstances where the Applicant's psychosocial disability does not satisfy the substantially reduced functional capacity criteria in paragraph 24(1)(c) of the NDIS Act, that the Tribunal cannot be satisfied that the Applicant is likely to require support under the NDIS for her whole life (paragraph 24(1)(e)).[17] The Respondent further contends that such support is more appropriately provided by other government and community services.[18]
[17] R1, #10, page 172 at [66].
[18] Respondent’s Closing Submission, 27 September 2024.
With regards to the early intervention requirements, the Respondent contends that, on the available evidence, the Tribunal should not be satisfied that the Applicant meets the early intervention requirements in paragraphs 25(1)(b) and 25(1)(c) of the NDIS Act.[19]
[19] R1, #10, p 173 at [72].
THE HEARING AND THE EVIDENCE
The application was heard by the Tribunal on 25, 26 and 27 September 2024. The Applicant was represented and supported by her mother, Ms M (the Applicant’s mother). The Respondent was represented by Ms Jennifer Flinn of Counsel, instructed by Ms Ismailjee. The Applicant gave evidence in person and the witnesses gave evidence in person, by videoconference and by telephone.
The Respondent filed with the Tribunal an agreed joint tender bundle of documents which was admitted into evidence (Exhibit R1). R1 included the T-documents filed by the Respondent on 5 December 2022 under section 37 of the then Administrative Appeals Tribunal Act 1975 (Cth), the Respondents Statement of Facts Issues and Contentions (RSFIC) dated 27 March 2024, the amended RSFIC dated 2 September 2024, the evidence previously filed by the Applicant and Respondent during the review process and documents obtained under summons from various health care providers.
Three further documents were admitted into evidence at the hearing. Two of these were lay witness statements from Ms LM (Exhibit A1) and Ms TL (Exhibit A2). The current Operational Guideline that has since replaced that contained in the T-documents was also tendered (Exhibit R2).
The Tribunal had the benefit of oral opening and closing submissions from Ms Flinn and Ms M.
In addition to providing her own oral evidence, the Applicant called Ms M, Ms LM, Ms TL and Mr P to give lay evidence. None of the Applicant’s treating practitioners were called to give evidence. The Respondent called as a witness occupational therapist Ms Rebecca Thompson.
I have considered the relevant factual and expert evidence. I will refer to evidence in my decision that was specifically relied upon by a party or that in my view is directly relevant to the determination of this matter.
Some initial considerations
In their closing submission, the Respondent submits that the Functional Capacity Assessment (FCA) report prepared by occupational therapist, Ms Thompson, does not accurately describe the Applicant’s impairments and overstates the extent of the reduction in functional capacity when compared to the factual evidence before the Tribunal. The Respondent contends that Ms Thompson’s conclusions are not consistent with the contemporaneous oral evidence of the Applicant and those closest to her with regards to meeting paragraph 24(1)(c) and 24(1)(e) of the NDIS Act. The Respondent further contends that Ms Thompson’s report was based on a 2-hour interview and that it appears no practical assessments were carried out.

Ms Thompson was engaged by the Respondent to carry out a FCA of the Applicant and to provide independent expert evidence to the Tribunal in a report of that assessment.[20] The assessment took place on 3 October 2023.
[20] R1, #8, pages 78-142.
The Tribunal agrees that contemporaneous oral evidence should be given weight in the context of a point in time assessment the Tribunal is required to make with regards to whether the Applicant has a substantially reduced functional capacity to undertake the six prescribed activities identified in paragraph 24(1)(c) of the NDIS Act. However, the Tribunal was assisted by the expert evidence provided by Ms Thompson in her FCA report and at the hearing. Ms Thompson is a qualified occupational therapist who has worked in her field of expertise since 1994 and has declared an overriding duty to provide impartial assistance to the Tribunal.[21] In response to questioning at the hearing, Ms Thompson clearly identified aspects of the assessment that she could not recall and was able to confidently respond to other questions based on her report. The Tribunal considers her to be appropriately qualified in possessing the necessary skills in assessing functional capacity and providing expert opinion to the Tribunal.
[21] R1, #8, pages 78 and 130-131.
The Tribunal notes that impairments related to a disability may fluctuate or vary in intensity over time, as is often the case with psychosocial impairments. In this context, the Tribunal did not consider the findings of Ms Thompson to be significantly inconsistent with the oral evidence provided by the Applicant and other lay witnesses at the hearing. For example, when assessed by Ms Thompson in October 2023, the Applicant had been able to attend 3 of the one-to-two weekly roller-skating activities over a three-month period, however at the hearing the Applicant gave evidence that she had eventually been able to attend weekly and subsequently has not been able to attend for several months due to feeling so overwhelmed following the introduction of new people to the group.[22] Furthermore, apart from contending that the evidence of Ms Thompson in relation to the domain of learning was inconsistent with the oral evidence provided by the Applicant and her mother, the Respondent has not drawn the Tribunal to other specific aspects of the FCA that it contends overstate the extent of the reduction in the Applicant’s functional capacity.
[22] Transcript 25 September 2024, page 53.
With regards to the FCA being based primarily on an interview, the Tribunal finds that it is not uncommon for this to be the case when experts are assessing impairments to which a psychosocial disability is attributable. Such an assessment largely relies on the self-reporting by the Applicant. The Tribunal did not develop any concern as to the reliability of the evidence provided by the Applicant at the hearing. The Tribunal found that she undertook her task seriously and conscientiously. She responded to questions from the Tribunal and Counsel in a consistent and unambiguous manner without obvious exaggeration or inconsistency. The Tribunal is satisfied that the Applicant’s self-reported history can be considered reliable.
Ms Thompson was also able to observe how the Applicant interacted and communicated during the assessment. In addition to the interview, Ms Thompson administered the following self-reported measures: Brief Fatigue Inventory; Community Integration Questionnaire – Revised, Depression Anxiety Stress Scale; World Health Organisation Disability Assessment Schedule 2.0; and World Health Organisation Quality of Life – Bref.
Considered overall, the Tribunal is satisfied that it will be assisted by the evidence provided in the FCA report of Ms Thompson and the evidence she provided at the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Paragraph 24(1)(a) – Does the Applicant have 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?
As mentioned above, the Respondent accepts that the Applicant has impairments to which a psychosocial disability is attributable.[23] As identified by Counsel at the hearing, the legislation requires the Tribunal to consider the concept of impairment rather than condition or diagnosis.
[23] R1, #10, page 163.
The Act does not define the term impairment, but it is generally understood as involving a loss of, or damage to, a physical, sensory or mental function.[24] Relevantly, the NDIS Operational Guideline state as follows:
[24] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [51].
An impairment is a loss or significant change in at least one of:
·your body’s functions
·your body structure
·how you think and learn.
To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below:
•intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information
•cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention
•          neurological – such as how your body functions
•          sensory – such as how you see or hear
•          physical – such as the ability to move parts of your body.
You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and tasks due to your mental health.
(Tribunal emphasis.)
The Applicant currently sees consultant psychiatrist Dr T for treatment and management of her mental health conditions. She has been seeing Dr T on a regular basis since 2021. In the Access Application Form dated 4 April 2022, Dr T recorded the Applicant’s disabilities as GAD, OCD and BPAD II.[25] Dr T outlined impairments the Applicant experiences including social isolation and difficulties with socializing, difficulties with decision making and problem solving, low mood, heightened anxiety, avoidance behaviours and difficulties communicating her needs and accessing support.[26]
[25] R1, T Documents, T1A, page 20.
[26] R1, T Documents, T1B, page 37.
On 7 March 2023 the Applicant lodged a Statement of Lived Experience in which she described her impairments and how they impact her day-to-day life as follows:[27]
[27] R1, #5, pages 7-8.
… My experience of mental illness has affected the entirety of my life and has had no set starting point. I am unable to think of a life without my symptoms because this is how my brain works.
…My months are highly variable depending on where I am in my mood cycle. As an estimate, I have 5-7 ‘bad’ days per month, which looks like struggling to get out of bed, struggling to complete care tasks, and withdrawing from speaking to friends and family. I typically have 2-3 ‘good’ days where I have higher energy, am enthusiastic about seeing friends/family to socialise, and can initiate a range of care and home tasks. The rest of the month is what I would consider normal, although my ‘normal’ looks like a flat mood, low energy, and persistent difficulty in initiating daily tasks.
…
Bipolar Disorder Type 2
● Interrupted sleep, nightmares, and night sweats, resulting in constant tiredness and irritability.
● Racing mind that ruminates on depressive and anxious thoughts, getting mentally stuck on worst-case scenarios.
● Impulsive behaviour and sudden changes of mind, leading to relationship and work conflict.
● Mild paranoid sense to thinking that ‘people have it out for me’, combined with anxious thought patterns contributing to social avoidance.
Generalised Anxiety Disorder
● Ongoing physical symptoms: heart palpitations, cold sweats, uncontrollable fidgeting.
● Changes to thinking — catastrophising, paranoia, racing thoughts.
● Avoidance of social situations and public spaces.
● Need to rehearse things — practising what I will say before every phone call, practising moving/doing something to avoid looking strange.
Obsessive-Compulsive Disorder
● Constant reassurance seeking from others.
● Considerable time spent doing and re-doing actions until things feel ‘right’, resulting in lots of time wasted.
● Continually checking and re-checking things (emails, locks on doors, money in bank account etc.) despite already knowing the answer, leading to more time lost.
● Need to complete things the same way each time (e.g. driving the same route every day); high level of anxiety and sometimes panic attacks after attempts to deviate from routine.
● High level of anxiety relating to any degree of change in daily life.
The Applicant was independently assessed by occupational therapist, Ms Rebecca Thompson on 3 October 2023. Ms Thompson provided a written report dated 17 October 2023 based on a two-hour semi-structured interview.[28]
[28] R1, #8, pp 78-142.
With regards to BPAD II, Ms Thompson reported that the Applicant was diagnosed with the disorder in 2022 but experienced symptoms since around 2015 when she was at school in Year 11.[29] Between 2017 and 2021 she had several hypomanic and depressive episodes and a period of approximately 6 months at the beginning of 2022 when, because of her symptoms, she took an extended leave of absence from her work.[30] The Applicant reported improvement in her mental health since commencing medication to treat her mental illness, although continues to experience fluctuations in her symptoms.[31] Her symptoms include sleep disturbance, constant tiredness and irritability, paranoid thoughts, racing thoughts and, during hypomanic or mixed episodes, elevated energy levels and impulsivity.[32]
[29] R1, #8, p 83.
[30] R1, #8, p 83.
[31] R1, #8, p 83.
[32] R1, #8, p 84.
Ms Thompson stated with regards to OCD that the Applicant reported constantly seeking reassurance from others, repeated checking and rechecking behaviours and needing to complete tasks the same way each time.[33] The Applicant reported making multiple telephone calls or text messages to her mother or partner each day to seek reassurance, even when she already knew the answer to a question or had previously been reassured about the issue. She reported spending significant amounts of time checking and rechecking things such as her emails and bank account as well as the actions of others.
[33] R1, #8, p 86.
With regards to GAD, Ms Thompson stated the Applicant reported symptoms being present daily and consisting of both physical and psychological symptoms.[34] The physical symptoms she described included intermittent heart palpitations, cold sweats and uncontrollable fidgeting. The Applicant reported that she would catastrophise and constantly think about the worst possible situation, saying or doing the wrong thing or being misinterpreted or offending someone. She described experiencing racing thoughts which she had difficulty controlling and that impacted her ability to remain focused. She reported avoiding public spaces and interacting with co-workers because of her anxiety. If attending a social activity, she required significant rehearsal and preparation for the interaction. Ms Thompson stated that the Applicant had spent the days prior to the assessment practicing responses to potential questions with her partner.[35]
[34] R1, #8, p 85.
[35] R1, #8, p 86.
Ms Thompson highlighted the difficulty in quantifying the number of ‘good’, ‘average’ and ‘bad’ days the Applicant experiences due to the fluctuating nature of her symptoms. The Applicant approximated that each month she would experience about 8-12 ‘bad’ days, 2-3 ‘good’ days with the remainder being considered ‘average’ days.
On bad days the Applicant reported an increase in the time spent checking, rechecking and in the rehearsing of conversations and actions with resultant fatigue and exhaustion. She would seek more reassurance from others and experience significant feelings of being overwhelmed.[36]
[36] R1, #8, p 87.
On good days she would continue to experience anxiety and feeling overwhelmed, but she described her mood and energy being improved compared to other days. On these days she may socialise such as visiting her parents or friends. She can participate in some tasks around the home but continues to require prompting, encouragement and reassurance from her partner and mother to participate.[37]
[37] R1, #8, p 87.
With regards to average days, Ms Thompson notes the following:[38]
The remaining days of the month are considered to be an average day (approximately 15-20 days per month), where [RZLV] experiences constant anxiety, low mood, a lack of energy, and difficulty initiating and participating in daily activities. [RZLV] must set several alarms and have [Mr P] or her mother call her to encourage her to get up out of bed. [RZLV] reported that the process of getting herself up and ready for the day of work is overwhelming and takes significant mental effort, as she must deal with unrelenting worrying thoughts and catastrophising regarding her upcoming day of work. [RZLV] will push herself through her anxious and depressive thoughts in order to attend and perform at work. This takes [RZLV] considerable effort, and she will often need to remove herself from an interaction (such as when teaching in a classroom) in order to manage her anxiety and thought patterns. By the end of [RZLV’s] workday, she is exhausted from the level of anxiety she has endured, and the effort required to overcome this and remain at work, and will go home and fall asleep on the couch for 1-1.5 hours as soon as she arrives home at 3.30/4.00 pm.
[38] R1, #8, p 87.
Ms Thompson reported that the Applicant’s partner is her main emotional and practical support. He works full-time, often being out of the house for more than 12 hours per day. He provides support to the Applicant throughout the day by way of reassuring text messages and telephone calls. He also completes daily living tasks such as cooking and grocery shopping. The Applicant’s mother provides further emotional and practical support throughout her workday.[39]
[39] R1, #8, pp 89-90.
The Applicant started seeing clinical psychologist Dr N in January 2024 after she self-referred for psychological therapy. Dr N has provided a report dated 31 July 2024 based on an autism assessment conducted over several sessions in April and May 2024.[40] The result of this assessment was that a diagnosis of ASD, level II requiring substantial support, was confirmed by Dr N as a single expert assessor.[41]
[40] R1, #6, page 13.
[41] R1, #6, pages 57 and 59.
Dr N has identified several impairments attributable to the Applicant’s diagnosis of ASD, summarised as follows:
(a)deficits in social emotional reciprocity;[42]
(b)deficits in non-verbal communicative behaviours used for social interactions;[43]
(c)deficits in developing, maintaining, and understanding relationships;[44]
(d)restricted, repetitive patterns of behaviour and activities;[45]
(e)insistence on the sameness, inflexible adherence to routines and ritualistic patterns of behaviour;[46]
(f)highly restricted fixated interests that are abnormal in intensity and focus;[47] and
(g)hyper-reactivity to sensory input and sensory aspects of the environment.[48]
[42] R1, #6, pages 29-36.
[43] R1, #6, pages 36-38.
[44] R1, #6, pages 38-43.
[45] R1, #6, pages 44-48.
[46] R1, #6, pages 49-52.
[47] R1, #6, pages 52-54.
[48] R1, #6, pages 54-57.
The Respondent accepts that the Applicant has a psychosocial disability attributable to one or more impairments arising from BPAD II, OCD, GAD and ASD. Based on the evidence the Tribunal agrees with this approach. I am satisfied that the Applicant has a disability within the meaning of paragraph 24(1)(a) of the NDIS Act.
Paragraph 24(1)(b) – Is the impairment permanent, or likely to be, permanent?
For the purposes of paragraph 24(1)(b) of the NDIS Act, the Tribunal must be satisfied that the impairment or impairments are, or are likely to be, permanent. Subsections 24(2) and 24(3) further notes that an impairment that varies in intensity or is episodic or fluctuating may be permanent.
In National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), Mortimer J considered the phrase ‘permanent impairment’ and stated:[49]
The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis.
(Emphasis added.)
[49] Davis at [130].
Relevantly, the Access Rules provide the following guidance in considering when an impairment is, or is likely to be permanent:
5.4An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5An 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.
5.6An 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).
5.7If 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 Davis, Mortimer J considered the meaning of ‘known, available and appropriate’ within the context of Rule 5.4 and explained the word ‘known’ connotes a treatment which can be identified by an Australian medical professional as suitable for a person’s particular impairment;[50] the word ‘appropriate’ means a treatment which has a capacity to ‘remedy’ the impairment and is suitable for the particular individual to undergo;[51] and the word ‘available’ should be understood as directed at what treatments an individual can, in reality, access.[52] Mortimer J further explained that the word ‘remedy’ means something approaching a removal or cure of the impairment.[53]
[50] Davis at [137].
[51] Davis at [137].
[52] Davis at [139].
[53] Davis at [136].
In the Access Application Form dated 4 April 2022, Dr T states that the Applicant’s functional capacity has been progressively affected by her disability over the last 10 years and that the Applicant’s illness has been fluctuant and chronic and likely to remain so, especially without treatment and support.[54] Dr T states that the Applicant has been suffering from severe anxiety, depression and OCD since she was at least 13 years of age and that despite treatment with medications and psychology input, she continues to experience ongoing residual symptoms which affect her overall functioning.[55] Dr T explains that there has been no significant long term improvement in her symptoms.[56]
[54] R1, T Documents, T1A, page 20.
[55] R1, T Documents, T1B, page 36.
[56] R1, T Documents, T1B, page 38.
The Applicant first started receiving psychological therapy in 2005 while in primary school in the context of general anxiety and a phobia of birds.[57] At the age of 11 years she was diagnosed with GAD and depression.[58] Around 2013 she was commenced on antidepressant medication (fluoxetine).[59] Since that time, the Applicant has been reviewed by four psychiatrists including her current treating psychiatrist, Dr T. In terms of medication treatment, she been prescribed antidepressant medications including fluoxetine and venlafaxine. She is currently treated with sertraline and clomipramine. Following a diagnosis of BPAD II she was commenced on lamotrigine and later lithium was added. She has accessed several mental health treatment plans through her general practitioner to undertake psychological therapy. This has included group cognitive behaviour therapy, individual psychotherapy and specific exposure and response prevention psychological treatment for OCD.[60] The Applicant has been compliant with the treatment and recommendations of her practitioners and therapy providers.
[57] R1, #2, page 2; R1, #6, page 15.
[58] R1, #6, page 15.
[59] R1, #12, page 363.
[60] R1, T Documents, T13, page 82; R1, #2, page 2; R1, #12, page 358.

The Respondent’s position is that the Applicant’s impairments are, or are likely to be, permanent.[61] Based on the evidence, the Tribunal agrees with this view. I am satisfied that the nature of the Applicant’s impairments are such that they are enduring. Despite the evidence that some of her symptoms of mental illness fluctuate or are episodic, I am satisfied that her psychosocial impairments are likely to be permanent. The evidence is not supportive of treatment being likely to remedy the Applicant’s impairments, that is something approaching removal or cure of the impairment.[62] Accordingly, the Tribunal is satisfied that the Applicant’s impairments are permanent, or likely to be permanent, and the requirement in paragraph 24(1)(b) of the NDIS Act is met.
Paragraph 24(1)(c) – Does the Applicant’s impairment result in substantially reduced functional capacity to undertake one or more of the specified activities?
[61] R1, #9, page 147 at [33]; R1, #10, page 163 at [27].
[62] Davis at [136].
To satisfy the criteria in paragraph 24(1)(c) of the NDIS Act, the Applicant must demonstrate that her impairments result in a substantially reduced functional capacity to undertake one or more of the following six activities:
(i)Communication.
(ii)Social interaction.
(iii)Learning.
(iv)Mobility.
(v)Self-care.
(vi)Self-management.
It is enough for an individual to have substantially reduced functional capacity in relation to just one of the stated activities to meet the criteria in paragraph 24(1)(c).
Rule 5.8 of the Access Rules represent deeming provisions that must be applied when the Tribunal is considering whether the Applicant’s impairment results in a ‘substantially reduced functional capacity’ and provide as follows:
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.
In Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), Mortimer J held that the legislation requires ‘a relatively high degree of precision by decision-makers… in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted’.[63] With respect to Rule 5.8, Mortimer J explained that if an Applicant does not fall within the deeming effects of the rule, ‘the statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.’[64]
[63] Mulligan at [55].
[64] Mulligan at [77].
In Foster National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster) the Full Court of the Federal Court made clear that it is the assessment with respect to the bundle of tasks and actions within an activity which is relevant, rather than equating impairment to a single task within the activity.[65] The full court explained further that:[66]
…a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.
[65] Foster at [65].
[66] Foster at [88].
The Operational Guidelines state:
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
·Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
·Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
·Learning – how you learn, understand and remember new things, and practise and use new skills.
·Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
·Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
·Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.
These disability-specific supports include:
·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
(Original emphasis. Citation removed.)
However, as explained in Foster:[67]
…the Guidelines are merely administrative “tools”. They do not provide a legislative definition of the relevant activities. They do not control the meaning of the phrase “substantially reduced functional capacity”. Nor do they alter the threshold criteria for when a person meets the disability requirements as specified in s 24(1) of the NDIS Act. They are not the equivalent of a statutory provision and are not to be construed in like manner... Rather, they provide non-exclusive content to the range of “tasks and actions” (as referred to in r 5.8) that comprise the “activities” the NDIA is required to consider, consistent with the legislative history, context, and purpose.
[67] Foster (n 185) at [62].
Communication
The Operational Guideline with respect to communication states:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
In the FCA report of 3 October 2023, Ms Thompson opined that the Applicant experienced a reduction in functional capacity for communication arising from her anxiety, intrusive thinking and feeling overwhelmed when interacting with others. This was mostly evident when communicating outside the close circle of her immediate family and partner.[68] Ms Thompson also states that:[69]
As [RZLV’s] anxiety levels rise, her ability to express herself and understand others becomes increasingly impaired. Due to this, [RZLV] requires high-level guidance (currently being provided by her mother or [Mr P] to prepare for and engage in both written and verbal communication. [RZLV] reported that she will often practice/ rehearse prospective conversations with her mother or [Mr P] and make notes of the points she wishes to make during the conversation as she will become flustered and lose her train of thought when having to speak to someone. So too, [RZLV’s] mother provides very-high level guidance when [RZLV] is required to compose any work-related correspondence.
[68] R1, #8, page 122.
[69] R1, #8, page 94.
Ms Thompson reports that the Applicant will engage with a group of friends two to three times per week using social media or text messaging.[70] She stated that the Applicant has the capacity to tell a family member or friend about something that has happened.[71]
[70] R1, #8, page 94.
[71] R1, #8, page 122.
Ms Thompson’s opinion is that the Applicant requires very-high level guidance to prepare for and engage in both written and verbal communication. This guidance is currently being provided by her mother or partner.[72]
[72] R1, #8, page 94.
In the Access Application Form dated 4 April 2022, Dr T states that the Applicant struggles to effectively communicate her needs and the support she requires due to obsessional thinking that she does not deserve help.[73] In a letter dated 28 October 2021 to the Applicant’s general practitioner, Dr T documents that the Applicant ‘does acknowledge that she struggles to communicate openly at times as she is worried about how she is perceived by other people and often tends to minimize her symptoms. However, she is able to express and talk freely to her partner and her family…’[74]
[73] R1, T Documents, T1A, page 22 & 25.
[74] R1, #12, page 360.
In her report dated 31 July 2024, Dr N identifies that the Applicant can sometimes maintain a conversational topic but finds it difficult to sustain, particularly when she is not interested in the topic.[75] The Applicant reported that others have found it hard to follow her conversations due to her tendency to alternate between different parts of a story or topics in conversations with others.[76] Dr N notes that the Applicant’s conversations in her professional capacity are relevant and informed but that she does not seek out or engage in social conversations.[77] Dr N stated that the Applicant may sometimes use exaggerated arm movements and hand gestures and often appears tense in her non-verbal body communication.[78] She uses the same conversational script with many different parents that she works with and will use the same ‘small talk’, greeting and ‘exit’ scripts when interacting with people.[79] She tends to talk ‘like she is talking to children when she is talking to new people and tends to use the same tone, overexpression and exaggerated hand gestures’.[80] Dr N stated that the Applicant will often talk too loudly and that her words sometimes become enmeshed and poorly articulated. She tends to use a monotone voice when speaking and at times uses idiosyncratic words and echoed speech.[81]
[75] R1, #6, page 35.
[76] R1, #6, page 35.
[77] R1, #6, page 35.
[78] R1, #6, page 37.
[79] R1, #6, page 47.
[80] R1, #6, page 47.
[81] R1, #6, page 48.
In her Statement of Lived Experience, the Applicant described feeling comfortable speaking to a limited number of people over the phone, such as her parents, brother and partner. She stated that if she receives a call from anyone else, she will let it go to voicemail and reply by text.[82] She explained that she regularly text messages her mother and maintains contact with a small group of friends through a group chat.[83] At the hearing the Applicant explained that this is predominantly with one friend and the focus is on her interest in hockey scores and statistics rather than socialisation. She will generally avoid communicating with people face to face or over the telephone and has developed conversational scripts to assist her in communicating when faced with such situations.
[82] R1, #5, page 11.
[83] R1, #5, page 12.
During cross-examination the Applicant confirmed that she would text message or speak to her mother by phone several times per day and that most of her conversations revolve around dealing with the social aspects of her work. In the workplace she can communicate with teachers, students and parents and will have parent meetings that are usually face-to-face. She explained that she tries to make workplace communication process driven with structured conversations however has difficulty determining whose turn it is to speak and if someone disagrees with a predetermined conversation, she does not know what to do. Where possible she will communicate with staff, parents and outside agencies by email rather than by phone or face-to-face. She chairs an in-person weekly team meeting comprising 4 to 6 colleagues but will generally seek guidance from her line manager before meetings and often requests her attendance for support.
The Applicant’s mother, completed section B of the NDIS ‘evidence of psychosocial disability form’ on 11 July 2022 and noted that her daughter ‘can communicate clearly in a work context however she experiences great difficulty expressing her needs which leads to greater anxiety and a downward spiral’.[84] In a written Statement of Lived Experience filed with the Tribunal on 7 March 2023, she also described assisting her daughter to develop ‘scripts’ for her to use when speaking with others on the phone to help reduce the anxiety she experiences. [85]
[84] R1, T Documents, T1B, page 41.
[85] R1, #4, page 5-6.
At the hearing the Applicant’s mother gave evidence that her daughter has several scripts written down on cards attached to her keyring to assist her in communicating with teachers, parents and students in her work setting. During cross examination she stated that in the work setting, such as in meetings, her daughter can understand what others are saying and they can understand her.
In closing submissions, the Applicant’s mother submitted that communication for the Applicant has been an ongoing difficulty and that she has only been able to effectively communicate at work with the informal assistance provided by Ms LM. When such a level of assistance was not available in the past, the Applicant was unable to cope and needed to take several months off work.
In their closing submissions the Respondent cited the finding in Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine) where Deputy President Humphries explained at [79] that with respect to what the Access Guidelines set out about communication, ‘the communication functionality being referred to here is of a fairly basic kind: telling a family member about something that has happened, explaining to a doctor in what part of the body pain is experienced, asking for help to reach something, and so on’. The Respondent contends that the threshold for functional capacity in communication is a modest one. While not bound by the findings of a previous Tribunal, I agree with this formulation. The Respondent further contends that the evidence indicates the Applicant has a high capability to communicate and while she may require others to help her to reach an outcome with regards to her communication scripts, this has been provided as a problem-solving exercise rather than in the form of assistance from other people as described in Access Rule 5.8(b).
I note that the Applicant was able to effectively communicate during the hearing. This is a credit to her given that the process of providing evidence before the Tribunal was likely a cause of much anxiety for her. She understood questions and responded appropriately and coherently. She was also able to prepare a written Statement of Lived Experience in response to several targeted questions.
The Tribunal accepts that the Applicant finds communicating with others face to face or over the telephone challenging and, apart from a few specific people, she generally avoids doing so. The Tribunal also accepts that when having to communicate with others, the Applicant will frequently use preprepared scripts to assist her and often requests reassurance from others or assistance with preparing a communication script for a particular scenario. The evidence also indicates that she has difficulty communicating her needs, particularly with her treating professionals, and has some impairments in non-verbal communication, such as the ability to maintain eye contact. Nevertheless, I am of the view that the Applicant can have conversations with her partner and mother on a regular basis either by phone, text message or in person. She is also able to communicate effectively with her line-manager at work and with other staff in weekly team meetings. Despite frequently relying on preprepared communication scripts, she has been able to hold some team meetings and parent interviews without the presence of another person for support. I am not satisfied that the Applicant usually requires the assistance of other people to participate in communication tasks. I am satisfied that the Applicant can communicate effectively in writing and frequently does so. I acknowledge the evidence that at times her communication can be discursive and prescriptive, however I am not satisfied that she cannot be understood.
The Tribunal accepts that the Applicant has impairments in her ability to communicate, however considered overall, I cannot conclude that the Applicant has a substantial impairment in the functional capacity to undertake this task.
Social Interaction
The Operational Guideline with respect to social interaction states:
Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
With respect to social interaction, Ms Thompson states that the Applicant finds any kind of social interaction overwhelming and a cause of significant anxiety in the lead up to, during and after the interaction.[86] Ms Thompson reported that the Applicant experiences ‘severe difficulties’ interacting with others, whether by telephone, in writing or face to face, due to ‘the anxiety, catastrophic and paranoid thinking patterns, and mistrust of others which she experiences on a daily basis’.[87] She will rehearse, draft and take notes in preparation for any such interaction and will avoid social interactions with strangers. When attending work or a scheduled social outing with a friend, she will arrive 30 minutes early to manage her anxiety and intrusive ruminating thoughts.[88] Ms Thompson states that:[89]
[RZLV] reported that her group of friends arrange a roller-skating activity every 1-2 weeks, and will always invite [RZLV]. [RZLV] reported that in the past 3 months, she has only managed to attend on 3 occasions. More often than not, even though [RZLV] knows who will be there and the arrangement is very casual, the prospect of socialising with her friends is overwhelming and makes [RZLV] feel physically sick to the point that she will cancel in the days prior. On the occasion that [RZLV] does attend, she will factor in enough time to ensure she arrives at the venue approximately 30 minutes early so that she can sit in her car to allow herself time to cry and process her racing thoughts and anxiety.
[86] R1, #8, page 95.
[87] R1, #8, page 114.
[88] R1, #8, page 96.
[89] R1, #8, page 96.
Ms Thompson states that due to the Applicant’s anxiety, she has difficulty leaving her home and being in public areas without support.[90] Occasionally she will attend a pharmacy to collect her medications, however this is the extent of her ability to access the community alone.[91] Her partner does the grocery shopping due to her difficulties with social interaction and severe anxiety when in public.[92] She is able to take her family dog for a walk to the beach with her mother providing support to assist with anxiety management and reassurance.[93]
[90] R1, #8, page 97.
[91] R1, #8, page 97.
[92] R1, #8, page 107
[93] R1, #8, page 111.
Ms Thompson administered the World Health Organisation Disability Assessment Schedule (WHODAS 2.0) during her assessment. The Applicant’s overall score was 42.15% total disability and Ms Thompson interpreted the domain results as follows:[94]
[RZLV] experiences the most difficulty within the domains which involve social interaction and sound executive functions (ability to plan, organise, initiate, and problem solve). This is due to the profound impact [RZLV’s] anxiety, worrying, racing thoughts, and paranoia have on her ability to engage in social activities and complete complex routines and tasks such as the housework and cooking. [RZLV] becomes so overwhelmed that she is unable to participate and will withdraw from an activity or avoid it all together.
[94] R1, #8, page 93.

Ms Thompson’s opinion is that the Applicant requires very-high level guidance in many instances to interact with others and that this occurs on ‘good’, ‘bad’ and ‘average’ days to varying degrees.[95]
[95] R1, #8, page 95.
During cross examination, Counsel put to Ms Thompson that in the Community Integration Questionnaire – Revised, the Applicant achieved an average score in respect of social interaction. Ms Thompson stated in reply that while this was the case based on the raw scores of this screening tool, it does not consider the degree of difficulty the Applicant has in achieving that task. As an example, Ms Thompson explained that the Applicant’s communication using text messaging would lead to higher scores but did not take into account the amount of time spent drafting messages, ruminating about what others may think and the associated anxiety she experiences.[96]
[96] Transcript 25 September 2024, page 97.
At the hearing Ms Thompson agreed that at the time of her assessment, the Applicant could engage in social interactions with her family, was capable of interacting with friends online and interact in person with a small group of friends once a month. Ms Thompson explained that in other situations, apart from going to work and occasionally attending her local pharmacy or purchasing a coffee, the Applicant doesn’t interact with people without support.[97]
[97] Transcript 25 September 2024, page 98.
Ms Thompson was asked by the Tribunal to elaborate on her opinion that the Applicant requires a very high level of guidance in many instances to interact with others. Her evidence was as follows:[98]
…so if we take, for example, the workplace or going to a social setting with her friends, she … will have to rehearse conversations or practice scenarios in her head often with support from [Mr P] and her mother to create a framework of how she might approach a conversation, what she might say to someone. And she will write down prompts to use in that conversation.
[98] Transcript 25 September 2024, page 108.
Ms Thompson was also asked whether the Applicant described the emotions she experiences in social interactions. Ms Thompson stated:[99]
… she talked about – whenever she’s talking even with friends, she’s going through in her head what she wants to say, what they might say to her. Really worried about saying the wrong thing or accidentally offending somebody. It’s not – I don’t think social interactions are generally an enjoyable thing for [RZLV]. She does it because she wants to maintain these contacts, but struggles with the anxiety that’s associated with that contact.
[99] Transcript 25 September 2024, page 109.
With regards to how the Applicant functions in social situations in the workplace, Ms Thompson’s evidence was that the Applicant finds interactions with staff very challenging and actively avoids them. She won’t go to the staff lunchroom or attend any non-essential events. When she must interact directly with someone, she uses strategies she has learnt to manage the anxiety and will ‘…essentially push down the anxiety until she’s gone off site, and then she often breaks down when she gets in the car at the end of the day’.[100]
[100] Transcript 25 September 2024, page 109.
Ms Thompson gave oral evidence that the effort the Applicant must put in to manage her anxiety, OCD symptoms and low mood is ‘absolutely exhausting’.[101] She further stated that ‘by the time she gets home, she sleeps anywhere from one to four hours to recover from the effort of that day’.[102]
[101] Transcript 25 September 2024, page 100.
[102] Transcript 25 September 2024, page 100.
In the Access Application Form dated 4 April 2022, Dr T states that the Applicant tends to withdraw and isolate herself from social situations due to her depression, anxiety and OCD.[103] She is noted to have limited interactions beyond that of her family and professional supports. Dr T opines that the Applicant requires assistance from other people to provide support and encouragement in maintaining her social connections, establish new social supports and to help circumvent withdrawal and avoidance behaviours.[104]
[103] R1, T Documents, T1A, page 25.
[104] R1, T Documents, T1A, page 27.
In her report dated 31 July 2024, Dr N provides information on the Applicant’s functioning and capacity to engage in socialization, summarized as follows:
(a)She has no interest in other people except her parents, her partner, one friend and a few online friends. She can briefly engage with others if pressured or she absolutely must, but it is not something she wants to do. She has a set of general ‘small talk’ questions that she uses, especially when she meets new people. She avoids colleagues at work. At family events she will not go and mingle with others. When younger she was reported to always stay away from groups of people and preferred to spend time alone.[105]
[105] R1, #6, pages 32-33 & 36.
(b)She has one friend she sees once a month to watch ice-hockey games but she ‘is there for the hockey game’, and her friend, ‘is there for the talking with and company of [RZLV]’. ‘Her friendships are limited to areas of mutual interest in hockey. She has much less than normal to and fro [sic] social interactions or responsiveness with others’.[106]
[106] R1, #6, page 43.
(c)‘She finds the unexpected approaches from others very disconcerting and overwhelming and prefers to avoid contact unless absolutely necessary for her, for example, when she needs to meet with colleagues regarding work and there is no other way around it. She has her own office and will close her blinds so that others can’t see that she is in there. She also instructs her colleagues to email her rather than coming to see her in her office. She has directed her work colleagues to email her if they want to speak with her and that she would much prefer to come to them and see them in their office or classroom. This allows her the time and space to plan when she has the psychological capacity to approach them and also has a way of exiting when she is ready’.[107] She avoids going into the staff room at work as she feels overwhelmed with the possibility of having to interact with other staff members.[108]
[107] R1, #6, page 42.
[108] R1, #6, page 50.
(d)She doesn’t seek out or engage in social conversations.[109]
[109] R1, #6, page 35.
(e)She speaks with her mother, who mostly initiates a conversation with her. Her and her partner don’t talk for the sake of being social. Dr N opines that the number and frequency of her social conversations are significantly less than others her age and well below her level of functioning.[110]
[110] R1, #6, page 35.
(f)She finds it difficult if people don’t greet her in a certain way. She is unsure of what greeting to give if she can’t follow her ‘script’. She finds it difficult to say her farewells as she is not sure how and when to say she is leaving. Consequently, she often gets stuck in situations for longer because she hasn’t determined how to exit.[111]
[111] R1, #6, page 33.
(g)She can share interesting events with her mother and partner although will mostly need to be prompted to do so.[112]
(h)When issues around privacy are less obvious, she is unsure what not to share and will sometimes find herself over-sharing and needs to have this pointed out to her.[113]
(i)She often gets very impatient and will interrupt because she feels frustrated if she perceives others are taking a long time talking or, with multiple people, will be unsure when it is her turn to talk and so does not contribute.[114]
(j)She must mentally rehearse and develop scripts for difficult conversations when she has to share information. She finds it very difficult to respond to others’ negative emotions during these conversations.[115]
(k)She is unsure how to please others.[116]
(l)She feels ill with anxiety when it is her birthday or at Christmas because she does not know what she will receive and isn’t sure what facial expression she will show or be able to give a positive reaction.[117]
(m)She has impaired capacity to offer comfort. Her responses usually involve no clear attempt to comfort, or she only offers comfort in response to exaggerated expressions or in a particular routine. When she is having a meeting with the parents of a student, it makes her feel tense if they are crying. She will try to offer scripted words of support. She has placed prompts on laminated cards with correlating emotions to identify what students will look like in terms of their facial expressions and body movements when they are feeling calm or angry.[118]
(n)She occasionally shows empathy when faced with another person’s distress but finds it difficult as she does not know what to say. She finds her ‘empathy scripts’ for children much easier.[119]
(o)She prefers minimal physical affection and generally won’t seek it out.[120]
(p)Her eye contact is typically brief and fleeting. She does not show much variation in facial expression and sometimes laughs in situations where it is inappropriate to do so.[121]
[112] R1, #6, page 30.
[113] R1, #6, page 33.
[114] R1, #6, page 34.
[115] R1, #6, page 34.
[116] R1, #6, page 33.
[117] R1, #6, page 31.
[118] R1, #6, page 31.
[119] R1, #6, page 33.
[120] R1, #6, page 33.
[121] R1, #6, page 32.
The Applicant gave evidence at the hearing that she contacts her mother daily. She explained that this generally takes the form of messaging by Facebook Messenger, although she will also speak to her over the phone about three to four times per week. She stated that their conversations about work primarily relate to the stress surrounding the social aspects of her job. [122] During the current year, the Applicant stated she visited her mother approximately every month and a half. During these visits, she will often see her brother who lives nearby. She used to visit her mother and brother approximately every second week, however the frequency of her visits have decreased due to her feeling very tired by the end of the week.[123]
[122] Transcript 25 September 2024, page 76.
[123] Transcript 25 September 2024, page 52.
The Applicant has daily contact with her partner but stated ‘it’s more spending time near each other, not really talking’.[124] She will sometimes travel with him while he is doing day-to-day errands such as going to Bunnings.[125] She will generally ask him to accompany her if there is anything she needs to leave the house for other than work. She stated that even when being accompanied by her partner, she finds the going out ‘overwhelming and stressful’. She explained at the hearing: [126]
… if I know we’re going out, even like the day before I found out we’re going to go out and do something, it’ll sort of just be like weighing on my mind in the lead up to the thing, and then like the morning of, even if it’s not until like 3 pm, I’ll waste the whole day being stressed and anxious about something coming up, when all I’ve got to do is, like, put on some decent clothes and get out the house, but it doesn’t feel like that to me.
[124] Transcript 25 September 2024, page 51.
[125] Transcript 25 September 2024, page 84.
[126] Transcript 25 September 2024, page 57.
She stated in her oral evidence that she will stay in close proximity of an informal support person when she does go out. For example, she will visit her partners family with him approximately twice per year and described how she will stay close to him during this time. She explained that if he must leave her to go to the bathroom, she becomes anxious and panics despite having known his family for several years.[127]
[127] Transcript 25 September 2024, page 54.
The Applicant generally does not go to the supermarket. She will attend her local pharmacy to collect her medications but only on specific times on specific days when staff she is familiar with are working. Her partner does the weekly food shopping and she estimated that she might accompany him approximately ten percent of the time but finds the experience stressful due to her high level of anxiety. She will actively avoid interactions with people by using an exact route and self-checkout facilities.[128]
[128] Transcript 25 September 2024, page 58.
The Applicant stated that she has one friend she met when previously working at Aldi. She meets this friend approximately once every two to three months. She explained at the hearing:
she’s just super understanding, but when we catch up, it’s more she kind of just narrates stuff and then I don’t have to worry about talking. I can kind of just sit there and listen and maybe every now and then comment, but, like, she gets that I’m not a big social talker, and she doesn’t push, and I think that’s why when we catch up, it’s not totally overwhelming…
…we won’t really message in between seeing each other. Like, we won’t kind of talk for two or three months and then she’ll say, ‘Hey, let’s go to this place at this time’. And then we both show up and, we hang out…[129]
… I generally will agree, even [though] I don’t want to, because I know that you’re meant to do that to have a friendship. But then I feel relieved afterward, because now I can go three months without having to go out for the sake of going out.[130]
[129] Transcript 25 September 2024, page 52.
[130] Transcript 25 September 2024, page 51.
At the hearing the Applicant stated she has one or two other people who have similar interests to her in hockey that she would interact with by social media messaging. She clarified that this would be to reflect on hockey scores and statistics rather than a personal exchange.[131] During cross-examination the Applicant admitted to previously having tried to organise a group chat with a few people having a mutual interest in hockey however she abandoned this as she could not understand the interpersonal dynamics between those participating. She stated that she ‘just wanted to talk about hockey’.[132]
[131] Transcript 25 September 2024, page 52.
[132] Transcript 25 September 2024, page 83.
In her oral evidence, the Applicant admitted to having trouble making friends. She explained that she has difficulty recognising if someone is a friend and what actions she should take to form a friendship. She reflected that when she was at school, she remembered feeling particularly lonely and not understanding why people did not invest any time with her.[133]
[133] Transcript 25 September 2024, page 53.
In her Statement of Lived Experience, the Applicant states that she had been able to attend community hockey games with a small group of friends approximately once per week for about one year. She indicated that for the first three months she struggled with strong anxiety and would often sit in her car and cry prior to meeting the group.[134] At the hearing she clarified that there were times she could not get out of the car and would return home.[135] Subsequently, she would still experience anxiety but could tolerate socialising for about two hours before being overwhelmed.[136] In her oral evidence the Applicant explained that she started roller hockey to be able to make friends but when the team got amalgamated, she became overwhelmed with the new people and has not returned since.[137] In response to being asked by the Tribunal what being overwhelmed meant for her in these situations, she described a ‘spiral’ of sensations leading to panic, such as sweating, chest tightness, difficulty breathing, feeling hot and difficulty thinking.[138] She did not experience being free of anxiety in these social settings.[139]
[134] R1, #5, page 12
[135] Transcript 25 September 2024, page 56.
[136] R1, #5, page 12.
[137] Transcript 25 September 2024, page 53.
[138] Transcript 25 September 2024, page 64.
[139] Transcript 25 September 2024, page 65.
At the hearing the Applicant explained that what she considered socialising is more often just existing in the situation and not necessarily actively engaging.[140] She stated: ‘I don’t know why I don’t talk…I just can’t make myself do it’.[141]
[140] Transcript 25 September 2024, page 64.
[141] Transcript 25 September 2024, page 54.
With regards to interacting with others over the telephone, the Applicant stated in her Statement of Lived Experience that she only feels comfortable speaking to her parents, brother and partner over the phone and that if she receives a phone call from anyone else, even if she knows the person calling, she will let the call go to voicemail.[142] At the hearing she explained why she does this:[143]
It’s … around the unpredictability of why are they calling me. Why does it need to be a phone call and not a written message? I kind of jump straight to, ‘I’ve done something wrong and they’re upset with me’. And then I get really anxious about, you know, what have I done to upset them. How upset are they going to be? Can I even fix the problem? That, a lot of the time I do that worrying to the point where I just miss the phone call. Like, it’s not a conscious decision to not pick up. It’s like, my phone is ringing and I’m looking at it and I’m thinking 10,000 things. And then before I can really choose, am I picking up, am I picking up, it’s like (indistinct). But the times when, like, I purposefully let it go to voicemail is just I’m overwhelmed. I can’t get my head around talking to people… I mean, other people seem to be able to do that. I can’t figure out how to do that… So I pretty well let all – well, most calls go to voicemail. And quite honestly, I don’t check my voicemail at all...
[142] R1, #5, page 11.
[143] Transcript 26 September 2024, page 140.
The Applicant gave evidence that she does not make medical or allied health appointments over the phone due to her anxiety about the uncertainties associated with the social interaction. She will either make online appointments if that is an available option or ask her mother to do it for her.[144]
[144] Transcript 26 September 2024, pages 132-133.
Concerning her social interactions in the workplace, the Applicant gave evidence that she plans her workdays to avoid people. She will arrive at work early and leave later to minimise the chance of encountering other staff members.[145] She explained that her role is not face-to-face teaching but rather identifying children who need additional support and assisting their teachers to understand how their disability impacts on their education. Although still experiencing anxiety, she copes better in situations where she can plan her conversations and interactions with people in advance. She described chance encounters with parents or staff members as ‘so stressful’ and gave evidence that it will usually take her 20 to 30 minutes after such contact to recover and calm herself from anxiety and ‘catastrophic thinking’.[146]
[145] Transcript 25 September 2024, page 89.
[146] Transcript 25 September 2024, page 55.
The Applicant prefers and requests that most interactions with staff are by email rather than by phone or in person.[147] Situations that require face to face contact such as weekly staff meetings or parent meetings cause her to experience increased levels of anxiety.[148] In such situations she utilises preprepared scripts and process driven structures (such as forms and checklists) to help her cope.
[147] Transcript 25 September 2024, page 80.
[148] Transcript 25 September 2024, page 55.
She gave evidence at the hearing of having to talk to her line manager, Ms LM, multiple times in advance of these meetings to rehearse her interactions and to get feedback on draft scripts she has developed.[149] The Applicant gave examples of Ms LM providing feedback about whether her scripts may seem too rude or abrupt and will offer alternative recommendations.[150]
[149] Transcript 25 September 2024, page 60.
[150] Transcript 25 September 2024, pages 60 and 65.
The Applicant finds it difficult to cope with interruption to the sequence of these scripts and described her challenges in recognising emotions in others and how to react in situations where someone is becoming agitated or upset.[151]
[151] Transcript 25 September 2024, page 61.

As I am of the view that Access Rule 5.8(b) is enlivened in this case, the Applicant satisfies paragraph 24(1)(c) of the NDIS Act with regards to the activity of social interaction.
Even if I am wrong about the Applicant meeting Access Rule 5.8(b), when considered overall, I am satisfied the evidence demonstrates that the Applicant’s functional capacity to undertake social interaction is substantially reduced, as reasoned below.
While not bound by the Tribunal’s decision in Madelaine, I agree, as submitted by the Respondent, that the tasks in the activity of social interaction are principally directed at the personal skills needed for social interaction. The Tribunal considers that this defines the very aspect of socialisation for which the Applicant is functionally impaired. In this regard, the Respondent submits that the Applicant does have the personal skills for social interaction as evidenced by her ability talk about hockey on a group chat, text and talk with her friend Ms S, develop bonds with some families of children with special needs and interact with her immediate family and attend a music concert. The Tribunal respectfully does not agree. The Tribunal is persuaded by the evidence of Dr N that the Applicant has, as a feature of her autism, deficits in social-emotional reciprocity, nonverbal communicative behaviours used for social interactions and in developing, maintaining and understanding relationships. The evidence is that the Applicant has difficulty understanding and recognising what a friend is beyond an analytical intellectual concept of friendship.[186] She also has difficulty recognising and responding to the emotions of others.[187] The Tribunal considers that apart from her informal supports and one friend, the extent of the Applicant’s capacity for social interaction with others is restricted to that facilitated by the use of pre-prepared formulaic social scripts, checklists and process driven structures rather than her having a psychological understanding of how to interact with others interpersonally.
[186] Transcript 25 September 2024, pages 27 and 53.
[187] Transcript 25 September 2024, pages 61 and 82.
In addition to the impaired personal skills to socially interact, the Tribunal views the Applicant’s functional capacity in this domain as being significantly impaired by the level of anxiety she experiences with social contact. I accept the evidence that she endures any social contact outside of her immediate informal supports with considerable anxiety and distress.[188] She requires sizable periods of time to prepare for such interactions and, particularly if they consist of an unplanned contact, to deescalate from the physical and psychological manifestations of this anxiety and distress following the contact.[189] Even in situations necessitating social contact that the Applicant has been able to sufficiently prepare for and gradually tolerate with repeated exposure, she is not ever free of considerable anxiety.[190]
[188] R1, #8, pages 95 and 114; Transcript 25 September 2025, pages 109
[189] Transcript 25 September 2024, pages 55 and 60.
[190] Transcript 25 September 2024, page 65.
As mentioned above in paragraphs 136 to 137, the Respondent highlights the Tribunal’s decision in Kilgallin where it was the Tribunal’s view that social interaction as referred to in subparagraph 24(1)(c)(ii) of the NDIS Act does not mean social interaction with the whole community but rather social interaction with elements or sections of the community. In that case the Tribunal found that because Mr Kilgallin could interact on a more-or-less regular basis with people he feels comfortable with, that this amounted to social interaction.[191] I am of the view that the functional impairments experienced by Mr Kilgallin are significantly different to those experienced by the Applicant in this proceeding and a direct comparison between these cases and the conclusions reached in Kilgallin is problematic. Mr Kilgallin could interact in a number of ways with different people. He was able to cook dinner for a friend, go out for dinner once or twice a month, participate in various social and political organisations, go shopping independently, interact with some of his neighbours, attend social activities with various organisations and had been able to form a friendship on a chance meeting at a laundromat.[192] These are not the sort of things the Applicant can do and if even if she were to do them, the evidence indicates that she would endure such contact with considerable anxiety and distress. The Applicant restricts her social contact to those she feels comfortable with specifically because of her functional impairment.
[191] Kilgallin at [19].
[192] Kilgallin at [15]-[17].
Considered overall, taking into account what the Applicant can and cannot do, the Tribunal is satisfied that the Applicant’s impairments result in substantially reduced functional capacity in social interaction and that subparagraph 24(1)(c)(ii) of the NDIS Act is met.
A substantially reduced functional capacity in only one of the activities described is sufficient to meet the requirements of paragraph 24(1)(c) of the NDIS Act. Nonetheless, for completeness the Tribunal will consider the remaining domains.
Learning
The Operational Guideline with respect to learning states:
Learning – how you learn, understand and remember new things, and practise and use new skills.
The Applicant has been able to achieve academic success at school and obtain a university Bachelor degree and postgraduate Masters. She enjoys reading Royal Commission reports and the statistical analyses within them. She likes reading topics related to her work and reflecting on the contents.[193] She has been able to learn process driven tasks and effectively integrate them into her work. She has the ability to use a library and to research topics.[194]
[193] Transcript 25 September 2024, page 88.
[194] Transcript 25 September 2024, page 28.
Ms Thompson’s opinion was that the Applicant possessed the intelligence and cognitive functions to learn. She noted however, that the Applicant’s ability to participate in learning is impacted by her low mood, anxiety and racing thoughts.[195] Ms Thompson considers that the Applicant requires considerable mental effort to maintain attention during learning tasks and experiences significant fatigue as a result.[196]
[195] R1, #8, page 100.
[196] R1, #8, page 123.
At the hearing the Applicant gave evidence that she engages in ongoing learning related to her professional development, although finds aspects of this involving group learning difficult.[197] She explained that while at university during the COVID restrictions, she was better able to engage in learning with the change to online lectures and learning from home. She considered that she can be successful in undertaking learning of content that is presented in a highly structured way.[198]
[197] Transcript 25 September 2024, page 65.
[198] Transcript 25 September 2024, page 67.
While I accept that the Applicant struggles with learning in group settings and that her anxiety and fatigue can at times impact upon her ability to engage in learning, the evidence, when considered overall, does not indicate that the Applicant has significant impairments in learning.
Accordingly, the Tribunal is not satisfied the Applicant has a substantially reduced functional capacity to undertake learning activities.
Mobility
The Operational Guideline with respect to mobility states:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
No evidence has been presented to the Tribunal of the Applicant experiencing impairments relating to the task of mobility. Accordingly, the Tribunal is not satisfied that the Applicant has a substantially reduced functional capacity in relation to mobility.
Self-care
The Operational Guideline with respect to self-care states:
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.
In the FCA report of 3 October 2023, Ms Thompson opined that the Applicant experiences a reduction in her functional capacity for self-care primarily relating to her difficulties with planning and initiation caused by fluctuations in her mood and anxiety.[199] Ms Thompson states that the Applicant’s difficulties with initiation and planning mean that the self-care tasks are performed more slowly.[200]
[199] R1, #8, page 118.
[200] R1, #8, page 119.
With regards to showering, Ms Thompson’s assessment was that the Applicant required moderate verbal prompting due to her difficulty initiating this task.[201] Intermittent prompting to attend to oral hygiene was noted for similar reasons. Ms Thompson stated that moderate guidance with grooming tasks was required in the context of significant anxiety about her hair. At the hearing Ms Thompson explained that for the Applicant, the process of initiating hair washing was an added task that was often neglected.[202] The Applicant is reported to require moderate prompting to change her clothes after work and to get out of her pyjamas on the weekend.[203] The Applicant was assessed as independent with regards to toileting.[204]
[201] R1, #8, page 119.
[202] Transcript 25 September 2024, page 108.
[203] R1, #8, page 103.
[204] R1, #8, page 120.
Ms Thompson states that the Applicant is independent with the physical process of eating.[205] Ms Thompson does identify impairments the Applicant has with respect of the process of meal preparation and the completion of laundry, general domestic and maintenance tasks. I consider these tasks to be more appropriately considered under the activity of self-management which focusses on, among other things, one’s capacity for decision making and planning of day-to-day tasks, rather than the physical ability to do these tasks.
[205] R1, #8, page 120.
In the Access Application Form dated 4 April 2022, Dr T states that the Applicant is usually capable of self-care tasks but does struggle when experiencing episodes of depression.[206] Dr T opines that the Applicant would benefit from the assistance of others in the form of encouragement to maintain self-care routines and to prevent avoidance due to worsening anxiety.[207] With regards to the Applicant’s ability to manage her health, Dr T states that she struggles to seek help and support early due to obsessional thoughts that she does not deserve help.[208]
[206] R1, T Documents, T1B, page 37.
[207] R1, T Documents, T1A, page 28.
[208] R1, T Documents, T1A, page 22.
In her Statement of Lived Experience, the Applicant stated that she did not require physical assistance with showering, toileting, dressing and eating and drinking.[209] The Applicant explained that she does require verbal prompting to initiate some tasks, particularly showering and dressing. She estimates that her partner will need to remind her two to three times per week to have a shower if she is still in her work clothes when he comes home from work. Typically, her partner will prompt her to change out of her pyjamas into day clothes on days they are both at home.[210]
[209] R1, #5, page 11.
[210] R1, #5, page 11.
At the hearing, the Applicant explained that she has usually required her mother to initiate interactions with health care providers and accompany her to initial appointments. She stated that she sometimes won’t be feeling well but has not recognised it in herself. She stated further that ‘I kind of depend on other people to identify that things aren’t going well’.[211] She acknowledged that during a previous episode of depression she was able to temporarily move back to live with her parents, acknowledging that she needed more support. She was able to say to her mother ‘I think I need to see a psychiatrist’.[212]
[211] Transcript 26 September 2024, page 133.
[212] Transcript 26 September 2024, page 127.
At the hearing, the Applicant’s mother stated that on workdays she sometimes has to prompt the Applicant to get out of bed. She does not generally have to prompt her daughter to have a shower and stated that she presents herself professionally for work.[213]
[213] Transcript 25 September 2024, page 41.
There is no evidence of the Applicant requiring assistive technology, equipment or home modifications to effectively or completely undertake the activity of self-care (Access Rule 5.8(a)). While the Applicant does require intermittent prompting for some aspects of self-care, particularly with regards to initiating showering, hair care, dressing and attending to her healthcare needs in a timely fashion, the evidence does not support the proposition that she usually requires assistance from other people to undertake these tasks (Access Rule 5.8(b)). While she may undertake these tasks at a slower pace, she can nonetheless perform them independently, albeit with intermittent prompting. She attends most of her medical and psychologist appointments independently. I am therefore not satisfied that Access Rule 5.8(c) is enlivened. Considered overall, taking into account the Full Court’s guidance in Foster and what the Applicant can and cannot do, I am not satisfied her impairments result in a substantially reduced functional capacity in relation to the bundle of tasks and actions forming the concept of self-care.
Self-management
The Operational Guideline with respect to self-management states:
Self-management – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
(Tribunal emphasis)
In the FCA report of 3 October 2023, Ms Thompson opined that the Applicant experienced a reduction in functional capacity for the activity of self-management. She considered that while the Applicant has the intelligence and cognitive ability to make decisions and solve problems, her anxiety and disrupted thinking meant that she requires a very high level of guidance in decision making.[214]
[214] R1, #8, page 124.
Ms Thompson noted that the Applicant can manage her own bank account and pay bills but experiences anxiety around complex financial matters leading to frequent checking and seeking of reassurance from others.[215]
[215] R1, #8, pages 108 & 124.
Ms Thompson states that the Applicant receives a high level of support from her mother for making appointments and by way of guidance in the developing of scripts to enable her to participate in appointments. At the hearing Ms Thompson clarified that the Applicant could attend these appointments with the assistance of her mother or partner, as required. In response to a question from Counsel regarding the Applicant’s making of and keeping to schedules, Ms Thompson stated that she believed the Applicant’s mother and partner were ‘quite involved in making sure she sticks to those schedules and attends appointments’.[216]
[216] Transcript 25 September 2024, page 102.
With regards to general household cleaning and laundry tasks, Ms Thompson’s opinion is that the Applicant experiences significant difficulty initiating and completing such tasks without a combination of very-high level guidance and physical assistance from her mother or partner.[217] At the hearing Ms Thompson explained that the Applicant may be able to complete day-to-day tasks on the two or three good days she experiences per month but on the remaining average or bad days, her opinion was that the Applicant would not be able to manage ‘much at all’.[218]
[217] R1, #8, page 106 & 107.
[218] Transcript 25 September 2024, page 100.
The Applicant is physically able to prepare meals however, Ms Thompson documents the significant anxiety experienced by the Applicant with regards to food preparation and that anything more complicated than a two-step process causes her to become overwhelmed and unable to continue.[219] The Applicant experiences intrusive thoughts about food contamination causing severe anxiety whilst cooking and resulting in her seeking frequent reassurance and guidance from her partner.[220] At the time of the FCA, the Applicant estimated that she had only cooked a maximum of five times during the preceding 12 months and required very high-level assistance from her partner. Ms Thompson provided further examples of the Applicant’s difficulty with planning and initiation in her reporting of it taking approximately 20 minutes to prepare her pot of coffee in the morning and that she could not previously complete a task of preparing breakfast muffins, having become overwhelmed by the steps involved with cutting these up, toasting them and organizing the spreads.[221] Most mornings the Applicant is able to prepare a bowl of oatmeal and have a cup of coffee.
[219] R1, #8, page 104.
[220] R1, #8, page 104.
[221] R1, #8, page 105.
Ms Thompson’s opinion is that the Applicant has extreme difficulty coping with any kind of change, both expected and unexpected and stated that while she ‘has the intelligence and cognitive abilities to problem solve issues of varying degrees of complexity, her severe anxiety, self-doubt, and need for reassurance means that very-high level guidance is required for [RZLV] to problem solve most issues’.[222]
[222] R1, #8, page 109.
Ms Thompson reports that the Applicant uses several strategies to manage her medication compliance including the use of a dosette box and leaving a cupboard door open as a visual prompt. Despite these strategies she will generally require prompting from her partner once every fortnight.[223]
[223] R1, #8, page 125.
In her Statement of Lived Experience, the Applicant states that on the days she does not work, she is responsible for her laundry and cleaning areas of the house. She explains that she has difficulty initiating such tasks and they are often unfinished by the time her partner gets home from work. Up to twice a month her mother will assist her to ‘help me catch up’.[224] About once or twice a month, when feeling well in herself, she states she is able to contribute more than usual by cleaning for two to three hours.[225] At the hearing the Applicant stated that she had not been able to contribute to cleaning tasks to this degree for some time and that these difficulties have been longstanding.[226] She explained that she has the functional knowledge to be able to do the tasks and has implemented strategies to remind her such as whiteboard chore lists and phone reminders but ‘I can’t make myself go ahead and do it’.[227] She is not fully aware of why she can’t initiate these tasks.
[224] R1, #5, page 10.
[225] R1, #5, page 10-11.
[226] Transcript 25 September 2024, page 78.
[227] Transcript 25 September 2024, page 68.
With regards to day-to-day tasks, planning and decision making, the Applicant provided the following additional oral evidence at the hearing:
(a)Her partner completes almost all the household cleaning tasks and the cooking. She struggles to initiate and complete tasks. She gave the following example of her difficulty with making decisions and moving to the next step in the process of her occasionally cooking a meal:
…probably the one thing I would make is spaghetti bolognaise. And all it is is boiled pasta, cook the mince, stir in the jarred sauce, and put it in a dish. And that’s, I don't know, maybe a 15-minute job. And yet if I do it, I will be asking all these sorts of checking questions for reassurance of, ‘Hey, can you come and look at it? Is the mince brown? Is it brown enough? Is it browner now? Should it be browner? Is this sauce right? Do I need to put it all in?’ Like, all of these questions where I know that it’s all reassurance-seeking, and it’s compulsive…[228]
[228] Transcript 25 September 2024, page 69.
…
…even if I have time to kind of think ahead, I still can’t get it done of actually combining multiple things to have what most people consider a meal.[229]
[229] Transcript 26 September 2024, page 120
(b)She states she does her own laundry because her partner ‘can’t wait for me to figure out whatever I need to figure out in my brain’.[230] She explained that even with the visual cue of the laundry basket overflowing and her desire to want to look clean and tidy, she has difficulty initiating the task of putting her clothes in the washing machine. Consequently, she washes her clothes about once per month. She dresses in the laundry as she can’t deal with bringing the clean clothes into her bedroom and putting them away.
[230] Transcript 25 September 2024, page 68
(c)The Applicant relies on the support of her mother to make telephone calls to arrange appointments such as those with heath care providers. She can make online appointments independently.[231]
[231] Transcript 25 September 2024, page 126.
(d)Her partner does the shopping and chooses what ingredients need purchasing to prepare meals. She finds it difficult making choices and so her partner chooses what they will eat for dinner.[232]
(e)At work, she needs to speak to her line-manager each day to discuss her plans for her days work. On occasions when her line-manager has not been available before the start of her workday, she finds this ‘catastrophic’.[233] She explained that she will return to see if her line-manager is free ‘but if I come back and she’s not there or she’s busy…and so kind of this looping thing of I can’t move on mentally until I’ve gone back to the original part of the routine’.[234]
(f)When she was not coping with her fulltime workload, she asked seven of her informal and formal supports before deciding to drop a day.[235]
(g)She requires ‘sameness’ in her routines and feels she can’t cope with her day if that routine is interrupted.[236]
(h)Traveling to new places is difficult for her because she has ‘a hard time thinking’ when under stress. She could not drive into the city for the hearing because ‘there’s so many parts of understanding how the city works’.[237]
(i)She experiences difficulties being able to make decisions on her own. She gave an example of trying to take the lead on buying a picture for a wall in their home:[238]
And I think it took me multiple months to go from wanting to then go into an op shop to find a picture, and then agonising over which $7 picture am I going to buy. But they’re not on the wall because I can’t make a decision about where to hang a picture and [Mr P] is wanting to just leave this one decision about the house that I’m going to make up to me. And I find it hard to make decisions without input. So the pictures have just been sitting there for quite a long time.
(j)She has her own bank account and manages that without assistance. She has set up automatic payments for most of her bills. For bills that are not automatically paid, such as her car insurance, she will choose the longer policy period to extend the time before she will need to make another decision because ‘it takes me so long to make a decision’.[239]
(k)Her brother and father have taken over the organizing of her car servicing and maintenance because she feels overwhelmed with the steps involved in going to a mechanic. She has similar difficulties refueling her car, often only doing so when accompanied by one of her parents.[240]
(l)She has a calendar application that she checks a couple of times a week to ensure she doesn’t miss any of her regular appointments.
[232] Transcript 25 September 2024, page 78.
[233] Transcript 25 September 2024, page 79.
[234] Transcript 26 September 2024, page 134.
[235] Transcript 25 September 2024, page 80.
[236] Transcript 26 September 2024, page 118.
[237] Transcript 26 September 2024, page 119.
[238] Transcript 26 September 2024, page 123.
[239] Transcript 26 September 2024, page 123.
[240] Transcript 26 September 2024, page 124.

The Applicant’s mother completed section B of the NDIS ‘evidence of psychosocial disability form’ on 11 July 2022. With regards to self-management Ms M writes:[241]
This is an enormous area of difficulty. [RZLV] needs daily support to stay on track and positive. She tries extremely hard to implement strategies and is open to new ideas but easily becomes overwhelmed. She then needs significant support to regain getting back to the starting point.
[241] R1, T Documents, T1B, page 41.
At the hearing, Ms M provided evidence that she provides regular support to her daughter with respect to her work schedule and appointments. The Applicant often seeks reassurance from her mother to confirm that an appointment has been made. Ms M’s view is that without this support the Applicant would have difficulty keeping her appointments.[242]
[242] Transcript 25 September 2024, page 22.
Ms M opined that the Applicant has difficulty with decision making and explained that ‘she can go round and round and work herself into… a state of not taking action…and not being able to complete tasks’.[243] With encouragement and support, Ms M states the Applicant is eventually able to make decisions.
[243] Transcript 25 September 2024, page 22.
Despite encouragement for the Applicant to arrange and plan the Taylor Swift trip herself, Ms M had to assist with the booking of flights and hotels. Ms M found the ‘constant talking it through’ and assisting her daughter with planning around the concert venue and potential scenarios to be ‘exhausting mentally’.[244]
[244] Transcript 25 September 2024, page 44.
Mr P, the Applicant’s partner, stated at the hearing that he often assists the Applicant in achieving outcomes and making decisions. He elaborated as follows:[245]
A lot of the time it gets a bit too much and I end up having to step in … once she gets that reassurance, she’s okay but a lot of stuff, well I just have to. She needs that continued support. If it’s not taking over, it’s me helping her across the line the rest of the way. It’s not just she gets the reassurance and then she’s good to go.
[245] Transcript 26 September 2024, page 164.
Mr P’s evidence was that he has not had to assist the Applicant manage her own bank account. He will sometimes have her prescriptions filled at the local pharmacy and ‘every now and again’ prompt her to take medications.[246] Mr P states that the Applicant’s mother generally assists her with making appointments.
[246] Transcript 26 September 2024, page 166.
In closing submissions, the Applicant attests that she requires significant support in the domain of self-management to complete daily tasks. It is submitted that her anxiety and obsessional thinking have a severe impact on her ability to make decisions.
The Respondent contends that the evidence shows that the Applicant does have the capacity to manage her own affairs, such as administering her own bank account, making online appointments, keeping an online calendar and remaining mostly compliant with her medication. It is further contended that the evidence shows that she can seek assistance when needed.
In considering the Applicants functioning in the activity of self-management, I am satisfied she has difficulty with planning and making decisions with respect to day-to-day tasks at home. The evidence shows that the Applicant has significant difficulties initiating, planning and completing the steps in tasks such as for cooking and cleaning. This is not only on bad days when her depression and anxiety symptoms are severe, but also on average days. Her average and bad days comprise her general day-to-day experience. She estimates she only experiences 2 to 3 good days a month. I am satisfied that the Applicant usually requires support from another person for most day-to-day tasks at home. The Applicant’s inability to effectively manage her daily life causes her a sense of guilt, shame, increased anxiety and perpetuation of ruminative thinking.
I am also satisfied that although the Applicant clearly has the intellectual capabilities to plan and make decisions in the workplace, the impairments that result from her anxiety symptoms, mood dysregulation and intrusive obsessional thinking reduce her capacity to do so independently. She usually requires the daily guidance and support of her line manager to function in her employment.
Although the Applicant is able to make online appointments, the evidence establishes that she requires a high degree of support to make bookings over the phone or manage any other day-to-day tasks requiring contacting people by phone. Although she keeps a schedule of appointments and makes efforts to check her schedule regularly, I am persuaded by the lay evidence of Ms M and expert opinion of Ms Thompson that the Applicant requires consistent support, guidance and prompting to keep to schedules and attend appointments.
I am satisfied that weight can be placed on the recommendations in the reports of Ms Thompson and Dr N that a support worker is recommended to support the Applicant with activities relating to daily routines, shopping, meal preparation and domestic duties.[247] Ms Thompson has also recommended a recovery coach to role model positive behaviours and support the Applicant to build capacity to manage day-to-day life.[248]
[247] R1, #6, page 63; R1, #8, pages 127-128.
[248] R1, #8, page 100.
While I accept that the Applicant can manage her own bank account, book online appointments, use a calendar for scheduling and may only need occasional prompting for medication compliance, these comprise a relatively small component of her day-to-day self-management tasks, planning and decision making. Considered overall, I am satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to the bundle of tasks and actions forming the concept of self-management. I am also satisfied that the Applicant usually requires the assistance of others to participate in the activity of self-management or to perform tasks or actions required to participate in the activity of self- management (Access Rule 5.8(b)).
Conclusion regarding paragraph 24(1)(c)
As mentioned previously, it is only necessary for the Applicant to demonstrate that her impairments have resulted in substantially reduced functional capacity in one of the specified activities. The Tribunal is satisfied that the Applicant has substantially reduced functional capacity in the domains of social interaction and self-management. On this basis, the Tribunal concludes that the Applicant meets the disability requirements in paragraph 24(1)(c).
Paragraph 24(1)(d) – the impairment or impairments affect the person’s capacity for social or economic participation
The Tribunal is satisfied that the impairments resulting from the Applicant’s conditions have affected her capacity for social and economic participation. The cumulative impacts of her impairments substantially limit her capacity for social interaction. I am also satisfied that without the level of support she currently receives in the workplace, it is likely the Applicant would not be able to sustain her employment.
The Respondent accepts that the available evidence tends to demonstrate that the Applicant’s impairments affect her social or economic participation.[249]
[249] R1, #10, page 171.
The Tribunal is satisfied that the Applicant meets the requirements in paragraph 24(1)(d) of the NDIS Act.
Paragraph 24(1)(e) – support required for the person’s lifetime
The Operational Guidelines provide that:
You must be likely to need support under the NDIS for your whole life.
NDIS supports are investments that help you build or maintain your functional capacity and independence, and help you work, study or take part in social life.
Even if your needs go up and down over time, or happen episodically, we may still consider it’s likely you’ll need lifetime support under the NDIS.
We consider your overall situation to answer this question.
When we decide if you’ll likely need support under the NDIS for your whole life, we consider:
• your life circumstances
• the nature of your long-term support needs
•whether your needs could be best met by the NDIS, or by other government and community services.
For example, you may have an impairment which is caused by a chronic health condition. Many chronic health conditions are most effectively managed or remedied through medical management through the health system. If this is the case, we may decide that you don’t have a lifetime need for support under the NDIS.
In considering whether the Applicant is likely to require support under the National Disability Scheme for her lifetime, I must have regard to the Full Court’s direction in Foster, relevantly:
(a)The focus of s 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.[250]
(b)It would be incorrect to ask the question of whether a support offered by other systems would be comparable with what would be available under the NDIS.[251]
(c)A person cannot be funded under two schemes. There is no scope for support to be partially funded under the NDIS.[252]
[250] Foster at [93].
[251] Foster at [95].
[252] Foster at [98].
The Applicant submits that her future supports will need to be lifelong given the permanency of her disabilities.
The Respondent contends that the Applicant does not satisfy the criteria under paragraph 24(1)(e) of the NDIS Act.
The Respondent approaches this argument firstly from the contention that the Applicant does not have impairments that substantially reduce her functional capacity and therefore she does not require supports funded under the NDIS.[253] Having found that the Applicant does have substantially reduced functional capacity in the domains of social interaction and self-management, I do not draw the same conclusion.
[253] R1, #10, page 172 at [66].
Secondly, the Respondent contends in their closing submission that, on the available evidence, long-term support needs have either not been established or represent a support that is more appropriately met by other systems.
With respect of the evidence for long term support needs having not been established, the Respondent submits:
…putting aside the recommended support for clinical psychology, when asked about her recommendations for supports Ms Thompson’s evidence was that a positive behavioural support practitioner would only be needed for a year and then on review but not on an ongoing basis. A psychosocial recovery coach would also be needed for a year and perhaps another year, but not for a lifetime. Sleep hygiene support form an occupational therapist would be needed for a year. Daily activity support from an occupational therapist would be needed for a year and Ms Thompson couldn’t say whether [RZLV] would be required to have a support worker hours for her lifetime but it may be longer than a year. Then in relation to [Dr N’s] report, her report doesn’t opine that [RZLV] is likely to require any supports for her lifetime because the supports that she recommends are on the basis of a three year plan with a subsequent review. In that regard, there is just simply insufficient evidence before the tribunal.
With respect, the Tribunal does not agree with this argument. The Tribunal accepts that some of the supports recommended by Ms Thompson may only be required for a certain period and that Dr N recommends that supports be continued for three years before being reviewed. Such change in support needs occur not infrequently for participants of the NDIS and is anticipated by the legislative provisions for plan variations and reassessments. Ms Thompson stated at the hearing regarding her recommendation for support worker assistance with community access (such as for socialization and grocery shopping), that she suspected they would be required longer term.[254] I accept the evidence that the Applicant’s conditions and her associated impairments are permanent and have persisted despite attenuation of her symptoms with appropriate evidence-based treatments. Paragraph 24(1)(e) does not require a determination of certainty regarding the person’s need for supports under the NDIS for the person’s lifetime but rather that they are likely to require the support for their lifetime. I am satisfied that the Applicant is likely to require the supports under the NDIS for her lifetime.
[254] Transcript 25 September 2024, page 104.
With regards to the recommendation of funding for clinical psychology, the Respondent submits that this support is best provided by the health system and has been provided to the Applicant through a GP mental health plan. The Respondent contends that the scheme provided under the NDIS Act is not designed to double up on supports that are provided by other systems and is also not designed to top up other systems if they do not provide as much support as what is recommended.
The Respondent refers the Tribunal to the decision in Young and National Disability Insurance Agency [2014] AATA 401 (Young) where the Tribunal stated at [41]:
Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 provide in Schedule 1 considerations relating to whether supports are most appropriately funded through the NDIS and relevantly with respect to mental health state:
The NDIS will be responsible for supports that are not clinical in nature and that focus on a person’s functional ability, including supports that enable a person with a mental illness or psychiatric condition to undertake activities of daily living and participate in the community and social and economic life.
7.7 The NDIS will not be responsible for:
(a)supports related to mental health that are clinical in nature, including acute, ambulatory and continuing care, rehabilitation/recovery; or
(b)early intervention supports related to mental health that are clinical in nature, including supports that are clinical in nature and that are for child and adolescent developmental needs; or
(c)any residential care where the primary purpose is for inpatient treatment or clinical rehabilitation, or where the services model primarily employs clinical staff; or
(d)supports relating to a co-morbidity with a psychiatric condition where the co-morbidity is clearly the responsibility of another service system (eg treatment for a drug or alcohol issue).
(Emphasis added.)
I accept that the Applicant has been accessing clinical psychology through a GP mental health plan funded by the health system for treatment of her mental health conditions. Such treatments have been clinical in nature and have included treatment for obsessive compulsive disorder with exposure and response prevention treatment. I am however persuaded by the evidence of clinical psychologist Dr N that the Applicant requires ongoing psychology services to improve her capacity to engage in social conversations and interactions with others.[255] This includes individual social thinking skills training. Dr N opines that the Applicant will benefit from working towards goals that build problem solving, coping, and social communication and thinking skills to better manage her emotional and sensory experiences. I am satisfied that these recommended psychological supports are not clinical in nature but instead focus on the Applicant’s functional ability and the support she requires to undertake activities of daily living and participate in the community and social and economic life.
[255] R1, #6, page 60.
The Respondent further submits that as the Applicant has not made inquiries about joining a self-help group through the Autism Association of Western Australia suggested to her by Dr N, it cannot be established that there are no other services that could meet her support needs. While a self-help group may be available at the Autism Association, I find that it is unlikely the Applicant would be able to access such a support independently given her substantially reduced functional capacity to undertake social interaction. It is because of the very nature of this reduced functional capacity that she would require support under the NDIS to access such services in the community.
The Respondent also submits that as the Applicant has not ascertained whether other Government or community supports might be available to her, it cannot be established that there are no other health systems or services that could meet her support needs. The Tribunal does not accept this position. No evidence has been presented to the Tribunal that such systems of support exist. The Applicant has been under the care of a consultant psychiatrist and has also been receiving clinical psychological therapy for several years and there is no evidence that such avenues of alternative support have been recommended or are available. Furthermore, in providing their expert opinions, Dr N and Ms Thompson have not identified alternative supports available through the health system.
Considered overall, having taken into account the guidance provided in Foster, I am satisfied that the supports likely to be required by the Applicant are most appropriately funded through the NDIS and not through another system of service delivery. I am satisfied that the Applicant is likely to require support under the NDIS for her lifetime.
The Tribunal finds that the Applicant meets the criteria in paragraph 24(1)(e) of the NDIS Act.
CONCLUSION
There is no dispute that the Applicant’s meets the requirements of sections 22 and 23 of the NDIS Act.
For the reasons given above, I am satisfied that the Applicant meets the disability requirements set out in section 24 of the NDIS Act.
As I have found that the Applicant meets the disability requirements for entry as a participant of the NDIS and that I need to consider the section 21 criteria in place prior to the amendments made to the NDIS Act on 3 October 2024, I have not proceeded to consider the early intervention requirements.
Accordingly, I find the Applicant meets the access criteria set out in section 21 of the NDIS Act.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the Applicant meets the access criteria under section 21 of the National Disability Insurance Act 2013 (Cth).

213. I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for the decision herein of General Member Dodd.

........[SGD]..................................................
Associate
Dated: 12 November 2024

Date of hearing: 25, 26 & 27 September 2024

Applicant: In person

Counsel for the Respondent: Ms J Flinn

Solicitor for the Respondent: Mr A Ismailjee, Sparke Helmore Lawyers

Date of hearing:	25, 26 & 27 September 2024
Applicant:	In person
Counsel for the Respondent:	Ms J Flinn
Solicitor for the Respondent:	Mr A Ismailjee, Sparke Helmore Lawyers