SMNL and CEO, National Disability Insurance Agency (NDIS) - [2025] ARTA 1512

SMNL and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1512 (25 August 2025)
Applicant/s:  SMNL
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2020/8589

Tribunal:Senior Member P French
Place:Sydney
Date:25 August 2025

Decision:Pursuant to s 105(c) of the Administrative Review Tribunal Act 2024 (Cth) the decision of the Respondent dated 30 November 2020, as subsequently varied, is set aside and is remitted to the CEO for reconsideration by 30 November 2025 with a direction that the Applicant’s existing and requested supports are not necessary to address needs that arise from an in impairment in relation to which she meets the disability requirements or early intervention requirements.

..........................[SGD]..............................................
Senior Member P French
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reviewable decision of CEO – decision to approve a Statement of Participant Supports – whether existing and requested supports are necessary to address needs that arise from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements – whether impairments are permanent – where presenting impairments have no identifiable organic cause – whether applicant has impairments derivative of a mental health condition not previously diagnosed or treated – necessity for permanence of impairment not established in relation to either the disability requirements or early intervention requirements – decision set aside and remitted with a direction that existing and requested supports are not necessary to address needs that arise from an in impairment in relation to which the participant meets the disability requirements or early intervention requirements
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 25, 37, 38AA
Administrative Review Tribunal Act 2024 (Cth), ss 12, 31, 53, 56, 105
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth), Schedule 16, Item 24
National Disability Insurance Scheme Act 2013 (Cth) s 3, 4, 5, 17A, 31, 32A,33, 34, 3547, 99, 100, 103, 209A
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth), Schedule 1, Items 46, 129
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth), Schedule 2, items 12, 13
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth): rr 5.4, 5.5, 5.6, 5.7
Cases
Ansell v Wells (1982) 43 ALR 41
Beezley v Repatriation Commission (2015) 150 ALD 111; [2015] FCAFC 165
Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607
Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577
DQKZ and National Disability Insurance Agency [2024] AATA 2276
Forrest and National Disability Insurance Agency (NDIS) ARTA 1131
Frugniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250
HPSC and National Disability Insurance Agency [2021] AATA 727
Kelly v National Disability Insurance Agency [2024] FCA 1462
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) 2 ALD 634
SAS Trustee Corporation v Miles (2018) 265 CLR 137
Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286
Makita v Sprowles (2001) 52 NSWLR 705
National Disability Insurance Agency v Davis [2022] FCA 1002
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V), 2013 (as updated)
Explanatory Memorandum to the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Bill 2024
World Health Organisation (2011), International Classification of Functioning, Disability and Health, Geneva
World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva
Statement of Reasons

This is an application by SMNL (the Applicant) pursuant to s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) for independent review of a decision of the delegate of the Chief Executive Officer of the National Disability Insurance Agency (CEO, NDIA, the Agency) made under s 100(6) of the Act on 30 November 2020 which was to affirm an original decision of another delegate of the CEO made on 12 November 2020 to approve a Statement of Participant Supports (SoPS) for the Applicant under s 33(2) of the Act that did not include several supports requested by the Applicant. The Tribunal has jurisdiction under s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to review this decision because it is designated a reviewable decision in the Table to s 99(1)(Item 4) of the NDIS Act.[1] This application was made to the Tribunal on 27 December 2020.
[1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunal Act 1975 (Cth). The AAT was abolished and replaced by the ART with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.
While this application has been before the Tribunal the CEO has made successive decisions to vary the Applicant’s Participant Plan by extending its review date and replenishing funding for approved supports for further periods up to the present. However, the Tribunal is informed by the CEO’s legal representatives the Plan containing the SoPS subject to the internal review decision has never been ‘replaced’. It is therefore that Plan with its SoPS, as subsequently varied, that remains before the Tribunal for review.[2]
[2] CEO’s Statement of Facts, Issues and Contentions, 6 December 2024, at [3]
On 22 August 2024 the NDIS Act (the principal Act) was amended by the measures contained in the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (the Getting the NDIS Back on Track amendments; the amending Act). Certain of those amendments came into effect on 3 October 2024 and are expressed to apply to a SoPS approved or varied after that date irrespective of whether a participant’s Participant Plan came into effect before, or on, or after the commencement of these amendments.
One of these amendments is determinative of this review. It is the insertion of paragraph 34(1)(aa) [3] into the series of criteria that must be satisfied before the CEO can approve a support for inclusion in a participant’s SoPS. In short, the CEO must be satisfied that the support is necessary to meet the needs of the participant as this arises from an impairment in relation to which they meet either the disability requirements or early intervention requirements.
[3] Inserted by Item 46 of the amending Act.
An impairment must be, or be likely to be, permanent to satisfy the disability requirements and the early intervention requirements[4] (with one exception that is not presently relevant)[5].
[4] Paragraphs 24(1)(b) and 25(1)(a)(i) or (ii) respectively.
[5] The exception is in relation to a child who has a developmental delay: the Applicant in this case is an adult.
This is a disturbing case.
The Applicant lives on a bed in a supine position in a one-bedroom apartment she rents on the private rental market with some government rent assistance. The evidence is that she has been lying in a supine position on a bed for at least 9 years. She has not left her bedroom since 2019 and only then for the purposes of admission to hospital. She reports being completely dependent on others for her daily subsistence. Her reported symptomatology (pain, muscle weakness, fatigue) has worsened over time despite extensive contact with a multitude of medical and allied health professionals. She is currently funded by the NDIS for several supports, which include support for activities of daily living which she self manages and utilises for 24-hour non-clinical personal care, domestic and secretarial assistance. Her disability support workers typically sleep overnight on a mat at the foot of her bed. Her bedroom is cluttered with medical aids, equipment and consumables. The living area of her apartment has a fold-out couch and functions as a second sleeping area, which it emerged in evidence is used by her mother who lives with her on a permanent or semi-permanent basis and provides her with additional care. That room is otherwise cluttered with medical and disability-related paraphernalia.
The Applicant gave evidence that she wants to remain living in the community, in contrast to being institutionalised, but she has no goal for rehabilitation and greater independence.[6] Rather, her objective is to obtain additional sickness and dependence related supports consistent with a steadfast belief in her lifelong increasing need for care. Her goal for community participation involves her being wheeled around the community in a supine position on a stretcher.
[6] As will be seen following, on 19 May 2025 the Applicant did submit a revised Statement of Goals and Aspirations, which includes one rehabilitation objective. However, that is in stark contrast to the oral evidence she gave. There she was repeatedly resistant to the concept of rehabilitation.
The Applicant’s living circumstances present an overwhelming image of sickness, dependence and desolation. A sight in greater dissonance with the vision of the NDIS could scarcely be imagined. Yet if the Applicant had been successful in obtaining each of her requested supports, together with those she already has, the public cost of her support would have been in the order of $1million per annum.
The Applicant obtained access to the NDIS based on physical and neurological impairments that were determined to be derivative of Complex Regional Pain Syndrome (CRPS) (the Applicant’s putative health condition). Having carefully considered the totality of the evidence before me I cannot be satisfied as to the correctness of that diagnosis, or that the Applicant’s reported symptoms have any organic cause. That is despite very extensive medical testing by a multitude of doctors and medical specialists conducted over more than a decade. Nor is her objective physical presentation consistent with the experience of pain or long-term immobility. To the contrary, from an objective point of view, she presents with intellectual alertness and acumen, a complete absence of visible indicators of pain, no significant evidence of muscle wastage, oedema or skin degradation, and, although she lies supine on her bed, she demonstrates considerable dexterity, quickness of movement and an ability multitask, particularly in the use of her available technologies.
To find that there is no identifiable organic cause of the Applicant’s presentation is not the same thing as saying her physical impairment is non-existent. At a functional level her physical impairment is manifest (there is no issue that the Applicant is substantially functionally immobile). However, until the causation of this functional impairment is identified and treated, it is impossible to determine if this impairment is permanent or is likely to be permanent.
In this respect there is evidence before the Tribunal that raises a realistic possibility that this functional physical impairment is derivative of a Borderline Personality Disorder and/or Factitious Disorder (formerly identified as Munchausen’s Disorder), which is a mental disorder which involves a person deceiving others with the pretence of sickness. In the absence of being able to test the evidence of an expert consultant psychiatrist in this field I make no findings in that regard. However, should this prove to be case, the Applicant’s impairments are of a kind to which a psychosocial disability is attributable, and the evidence does not establish that she has undertaken appropriate treatment for any such condition. Rather, the evidence is to the effect that when challenged with such diagnoses in the past, she has disengaged from treatment.
If the Applicant does not have a Borderline Personality Disorder or Factitious Disorder the issue of the permanence of her functional physical impairment remains. It cannot be known if this impairment is permanent in the absence of the causation and the available treatments (if any) for the underlying health condition being established and exhausted.
For these reasons I cannot be satisfied, as I must be, that any of the supports presently included in the Applicant’s SoPS, and the additional supports she has requested, are necessary to address the needs of the Applicant that arise from an impairment in relation to which she meets the disability requirements or the early intervention requirements.
I have therefore set aside the decision under review and remitted it to the CEO for reconsideration by 30 November 2025 with a direction to this effect. This form of order is designed to give the Applicant some notice of withdrawal of her NDIS supports and the opportunity to obtain alternative supports from the general health and mental health systems if that is appropriate. In this respect, the NDIS is not responsible for the provision or funding of clinical diagnosis, assessment and treatment of health conditions.[7]
[7] National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth), Schedule 2, Items 12 and 13.
To put the matter beyond doubt, the effect of this order is not to revoke the Applicant’s status as a participant in the NDIS. Her participant status is not a matter that is before me for consideration. Rather, the effect of my decision is that no support can be approved for inclusion in the Applicant’s SoPS until such time as the CEO can be satisfied that it is a support that is necessary to meet her needs as this arises from an impairment in relation to which she meets the disability requirements.
Procedural history
This case has been before the Tribunal since December 2020. It is one of the ‘oldest’ cases before the Tribunal in its NDIS jurisdiction. It follows a prior case filed by the Applicant in 2018 which sought independent review of a decision of the CEO made on 10 August 2017 which was to revoke her status as a participant in the NDIS. That case was resolved by consent on 6 September 2019 on the basis that the Applicant continued to meet the disability requirements to be a participant in the NDIS. This case arises from the Participant Plan and SoPS that was approved by the CEO consequent upon that consent order.
Since the application was filed, 11 prehearing case events have been held from 33 scheduled events, which included 7 Case Conferences conducted by a Registrar for the purposes of alternative dispute resolution under Division 3 of Part IV of the Administrative Appeals Tribunal Act 1975 (Cth) as it was then in force. The case was constituted to a Member for hearing in December 2023, but did not progress to hearing. In September 2024 the originally constituted Member became unavailable to continue with it, which resulted in it being constituted to me on 10 September 2024.
Shortly thereafter I listed the case for a Case Management Directions Hearing on 20 September 2024 where I made procedural directions for the conduct of the case to hearing and listed it for a three-day hearing in December 2024. I did so after consulting with the parties’ then legal representatives as to what was necessary to make the case hearing ready, and as to the time that would be required for the hearing. One of the prehearing directions I made required the parties to confer and the CEO to file a witness schedule by 4pm on 6 December 2024. That direction was not complied with.
On 9 December 2024, the day before the hearing, the CEO’s legal representatives notified the Tribunal and the Applicant’s legal representative that the CEO required 23 witnesses, whose evidence the Applicant relied on, including the Applicant herself, to be available for cross-examination. It was also foreshadowed that an additional 5 clinicians may be required for cross-examination if the Applicant intended to rely upon documents those clinicians had authored which had been included in the documentary material she had filed.
Ultimately, after discussions between the parties, the Applicant narrowed the clinical evidence that she relied upon in relation to her requested supports, and the CEO limited the number of witnesses she required for cross-examination. Nevertheless, the hearing time had to be extended to accommodate the parties’ witnesses, and due to party unavailability, could not be resumed until March 2025.
Due to the complexity and gravity for the Applicant of the issues on which the outcome of the review was likely to turn the parties sought the opportunity to make post hearing submissions, which I agreed to. For reasons it is unnecessary to canvass here, the post-hearing submission timetable had to be extended and did not close finally until 30 May 2025.
The scope of the review
For the whole period the case has been before the Tribunal up to the December 2024 hearing, the supports that had been approved by the delegate for inclusion in the Applicant’s SoPS by the decision made on 12 November 2020, and as continued in subsequent SoPS extensions, were not put squarely in issue. That remained the case when the CEO filed her Statement of Facts, Issues and Contentions (SFIC) on 6 December 2024,[8] and during the Opening Statement made by counsel on her behalf on 10 December 2024. In this respect, I note that the CEO’s SFIC was filed more than 2 months after the 3 October 2024 Getting the NDIS Back on Track amendments to the Act came into force.
[8] Agency’s SFIC, dated 6 December 2024 at [11(3)]
However, that position was always subject to the following considerations:
a.Since 24 May 2024 up to the date of her final closing submissions the Applicant sought as an outcome of this independent review approval of the continuation of her existing supports by means of the Tribunal specifying in its decision pursuant to s 33(2)(c) of the Act a reassessment date 3-years from the date of its decision.
b.No order had ever been made pursuant to s 53 of the ART Act (or its predecessor provision under the Administrative Appeals Tribunal Act 1975 (Cth)[9]) limiting the scope of the review to the disputed supports. Consequently, as I will explain further following, the whole of the decision to approve the Applicant’s SoPS was formally before the Tribunal for independent review, even if the parties did not initially consider there was a contest in relation to the existing supports.
[9] s 25(4A) of the AAT Act.
In any event, on the second hearing day in December 20244, and in response a direction I gave the CEO via counsel, having regard to lines of questioning being pursued by counsel in the Applicant’s cross-examination, the CEO notified the Applicant and the Tribunal that her position had changed and that she now considered both the Applicant’s existing and requested supports to be in issue. From that point the hearing proceeded on this basis.
Two issues fall out of this in terms the Applicant’s final case:
a.whether the Tribunal has jurisdiction in this review to consider her existing supports, and
b.if the answer to that question is “yes”, whether in all the circumstances it is procedurally fair to the Applicant for the Tribunal to do so.
I will return to these issues in consideration.
Supports in dispute

Because of this development the disputed supports before me for decision fall into two categories: the supports that were approved for inclusion in the Applicant’s SoPS by the delegate’s decision of 12 November 2020 (the previously approved supports), and those that the Applicant now wants approved for inclusion in her SoPS (the requested supports).
Approved supports now in issue
The supports that were approved by the delegate for inclusion in the Applicant’s SoPs and which have continued during subsequent extensions of that SoPS up to the present are (expressed on a quarterly or 14-week basis):[10]
[10] CEO, Statement of Facts Issues and Contentions, dated 6 December 2024, Appendix A
Core supports
a.Funding for consumables, being ‘Low-Cost Assistive Technology for Personal Care and Safety’ ($200.00),
b.Funding for assistance with ‘Daily Activities’; being:
i.Assistance with self-care activities – standard – weekday daytime (60 hours per week; $45,612.00),
ii.Assistance with self-care activities – standard – weekday evenings (30 hours per week; $25,103.40),
iii.Assistance with self-care activities – standard – weekday night (30 hours per week; $25,565.40),
iv.Assistance with self-care activities – standard – Saturday (24 hours per week; $25,596.48),
v.Assistance with self-care activities – standard – Sunday (24 hours per week; $32,948.16).
c.Transport, Level 3 ($892.00)
Capacity building
d.Capacity Building Daily Activity, being Assessment Recommendation Therapy and/or Training (including Assistive Technology) – other therapy (40 hours; $7,759.60),
e.Capacity Building Relationships, being Specialist Behavioural Intervention Support (8 hours; $1,715.28), and Behaviour Management Plan including Training in Behaviour Management Strategies (8 hours; $1,551.92),
f.Support Coordination, being Level 3 Specialist Support Coordination (42 hours; $8,002.68).
Capital
g.Assistive Technology, being Assistive Technology Rental for Personal Mobility and Transfer, Rental composite, and Assistive Technology Rental Products for Personal Care and Safety (quotes required up to $4,420.00)
I note that this amounts to total funding of $183,103.92 on a quarterly basis, or $732,415.68 on an annualised basis. I also note that the Applicant’s current direct personal support is for 168 hours per week, or 24 hours per day if used at a ratio of 1:1.
Requested additional supports in issue
While the application has been before the Tribunal the Applicant’s requested supports in dispute have changed from those originally sought several times. I set this history out here to illustrate the degree to which the Applicant’s self-concept is founded upon medical dependency.
The dispute arose from an internal review decision which affirmed an original decision not to approve the following supports for inclusion in the Applicant’s SoPS (expressed in annual terms):[11]
a.An increase to transport funding to include 30 trips per year at $750.00 per trip,
b.An increase in funding for Capacity Building – Health and Wellbeing budget for a dietician 16 hours,
c.An increase of $1,610.99 to the consumables budget for low-cost Assistive Technology, being text to speech software;
d.An increase to the Core – Daily activities budget to include:
i.   60 hours each for 6-8 support workers for training regarding written tasks on computers,
ii.     3 hours each for training for 10 support workers in manual handling,
iii.    12 hours each for training of 10 support workers in first aid and mental health first aid,
iv.   3 hours each for training of 10 support workers in pain management.
[11] Hearing Tender Bundle, Tab T2, page 20 - 26
The list of requested supports changed while the case was in ADR to include a request for support for Specialist Disability Accommodation (SDA). Other supports were added or removed from the list of requested supports.[12]
[12] CEO’s Statement of Facts, Issues and Contentions, dated 6 December 2024 at [22]
On 29 May 2024, at the direction of the Tribunal, the Applicant confirmed the requested supports that were in issue in the review as follows:[13]
[13] Ibid at [23]
a.Dietician services – one hour per month,
b.Increase in consumables funding, to cover:
i.   TENS machines and TENS machine electrodes,
ii.     Incontinence products.
c.A longer Plan (SoPS) period, being 3 years, which would include the pro-rata replication of all other supports in her existing SoPS,
d.Disability support worker assistance, including:
i.   Assistance with tasks on computer,
ii.     2-person assistance to go outdoors regularly on a wheeled stretcher (a change table),
e.Capital budget to include:
i.    Height-adjustable bed and mattress,
ii.   Change table (functioning as a wheeled stretcher),
iii. Portable platform adjoining portable ramp.
f.SDA) being a change of SDA category from 2-resident house to single-resident apartment.
On 19 August 2024, the Applicant notified the CEO and the Tribunal that she withdrew her request for ‘assistance with tasks on a computer’. On 26 August 2024 she also notified the CEO and the Tribunal that she withdrew her request for support for SDA.[14]
[14] Ibid at [24]
In her first bundle of documents filed and served on 31 August 2024, the Applicant itemised her requested supports as follows:[15]
[15] Hearing Tender Bundle, Tab A1, pages 276 – 277.

Support 1

TENS machines, TENS Machine Electrodes, TENS replacement cables

Support 2

Incontinence products to aid in toileting

Support 3

Digital Assistive Technology:

·     Annual app-based psychological pain management program subscription

·     Annual text to speech app subscription

Support 4

Assistance with Social and Community Participation:

·     Assistance to go outdoors each week, through a 2^nd worker on a short shift, to assist with transfers between bed and stretcher and for manoeuvring stretcher

Support 5

Assistive Technology:

·     Height adjustable bed and mattress

·     Change table (to be used as a wheeled stretcher)

·     Portable platform (adjoining a portable ramp)

Support 6

1 hour per month of dietician services

Support 7

3-year plan

In her closing submissions filed on 19 May 2025, the Applicant stated that her final position regarding all supports in dispute was that she sought:[16]
[16] at [49]
a.additional ‘Core Support’ of 12 hours per day support worker assistance, to be used ‘flexibly’,
b.additional Assistive Technology, being:
i.         a height adjustable bed,
ii.         portable ramp and landing, and
iii.        change table.
c.a ‘1-year plan’,
d.Capacity-building supports, being:
i.Occupational therapy plan as proposed by Ms L S, Occupational Therapist, being 19 hours per week occupational therapy for stage 1, including provision of functional education, travel, equipment prescription and setup; 6hrs per week for stage 2; and 3hrs per week for stage 3, where each stage is estimated to be four months.
ii.Funding for Assistive Technology supports to implement this plan, being for a commode, rollator frame and mobility scooter,
iii.Physiotherapy twice per week, with one session being a joint session with the occupational therapist.
e.No change to other existing approved supports.
It will be noted that the Applicant’s current schedule of requested supports does not include any requested support that was before the internal review delegate.
The Tribunal’s role
The Tribunal’s role in conducting this review has been to reach its own conclusion as to whether the delegate’s decision to approve the SoPS that is included in the Applicant’s Participant Plan is the correct or preferrable decision.[17] Somewhat unusually as a formal matter,[18] in this case, that has included active consideration not only of whether the delegate was correct to refuse to approve certain requested supports for inclusion in the SoPS, but also whether they were correct in approving the supports that are included in the SoPS. This has involved the independent re-assessment of the evidence that was before the delegate when they made their decision as well as the assessment of the additional documentary and witness evidence that was before the Tribunal at the time of the hearing.[19]
[17] Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577 (Drake) at 589
[18] As is explained following, although the Tribunal’s jurisdiction is determined by the scope of the power conferred by s 100(6) and s 33(2) of the NDIS Act, as a practical matter most reviews concerning Table to s 99 (item 4) decisions focus on requested supports in dispute, rather than approved supports.
[19] Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286 at [45] – [46]
Section 34(1) of the NDIS Act provides, relevantly, that for the purposes of specifying the reasonable and necessary supports that will be funded in a SoPS, the CEO must be “satisfied” of each of the matters set out in that section in relation to the funding of each such support. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically.[20] Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that each of the supports in dispute is reasonable and necessary.[21]
[20] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60]; National Disability Insurance Agency v WRMF (2020) 378 ALR 449 at 491 [201]
[21] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85]
Evidence and hearing
The following documentary material is before me for the purposes of this review:
i.The documents filed by the CEO in accordance with the obligations imposed by s 37 and s 38AA of the AAT Act (T-Documents),
ii.Hearing Tender Bundle prepared by the CEO in consultation with the Applicant, filed on 9 December 2024. I note that this bundle included:
a.a bundle of documents filed by the Applicant on 12 November 2024,
b.a further bundle of documents filed by the Applicant on 29 November 2024, and
c.a further bundle of documents filed by the Applicant on 6 December 2024.
iii.CEO’s Statement of Facts, Issues and Contentions filed 6 December 2024,
iv.a further bundle of documents filed by the Applicant on 9 December 2024,
v.four videos demonstrating the Applicant’s function, filed by the Applicant on 12 December 2024,
vi.staff rosters called for by the CEO, filed by the Applicant on 12 December 2024,
vii.A further bundle of documents filed by the Applicant on 4 March 2025 (being those admitted),
viii.Notes made by Ms L S, Occupational Therapist, at interview with the Applicant called for by the Applicant and filed by the CEO,
ix.the CEO’s closing submissions filed on 2 April 2025,
x.the Applicant’s closing submissions filed on 19 May 2025. I note that this comprised:
a.an outline of legal argument prepared for the Applicant by a solicitor, and
b.an outline of submissions on evidentiary matters prepared by the Applicant,
xi.the CEO’s closing submissions in reply filed on 30 May 2025,
xii.a partial hearing transcript (10, 11, 12 December 2024 and 7 March 2025).
I note that the Applicant sought to file a further submission on 19 June 2025. No leave had been granted for this to occur. I have not had regard to that submission.
The principal hearing was conducted initially on 10, 11 and 12 December 2024, but could not be completed at that time. It resumed on 3, 4, 5, 6 and 7 March 2025.
I note that in June 2025 the Applicant sought leave to re-open the hearing to enable her to cross-examine Professor C S, Consultant Neurologist. I refused that request for reasons given at that time.
The Applicant was represented in the prehearing period by a firm of solicitors which ceased to act for her shortly prior to the December hearing. She was represented by another legal practitioner during the December hearing, but he ceased to act for her after that hearing. The Applicant was self-represented during the March hearing. In the post hearing period, she obtained legal assistance to complete her closing submissions from a third solicitor.
The CEO was represented by counsel instructed by a firm of solicitors.
The Applicant gave evidence in her own cause under affirmation. She called as witnesses Dr S W, Neurologist, Associate Professor D C, Pain Specialist, Ms C E, Occupational Therapist, Mr B T, Physiotherapist, and Ms P L, support worker, each of whom gave evidence under affirmation. The CEO called as witnesses, an independent expert Neurologist, Professor C S, and an independent expert Occupational Therapist, Ms L S.
The Applicant[22]
[22] The following summary is distilled from the Applicant’s ‘profile’ contained in her Participant Plan, from the parties closing submissions and from the materials summarised in Professor C S’ expert report.
The Applicant is 30 years of age. She is a single woman who lives in a one-bedroom apartment in an eastern suburb of Sydney she rents on the private market with some government rent assistance.
As a child and adolescent, the Applicant was a gifted musician (piano and clarinet) and she was also gifted academically.
In 2010, at the age of 15, the Applicant left her family home based on reported domestic violence. She initially moved into a youth refuge, then later into a group home and then in or about April 2012, into her own apartment with the support of youth services and a social housing provider.
I note that up to and during part of the hearing the Applicant reported being estranged from her parents and broader family. However, it emerged mid-way through the hearing that her mother now lives with her on a permanent or semi-permanent basis and has done for some time.
In November 2011, at the age of 16, the Applicant reported to her General Practitioner a hand injury incurred during kickboxing. She sought and obtained a medical certificate which requested adjustments be made by her school to enable her to complete exams. She underwent various medical tests over succeeding months which did not identify any organic cause for the persistent pain and weakness she continued to report as being consequent upon this reported injury. Her school provided her with disability related adjustments for classroom and exam activities, including special consideration and a scribe, from about November 2011 through to her Higher School Certificate exams at the end of 2012.
On 20 September 2012, at the age of 17, the Applicant reported falling nine stairs in a stairwell at school injuring her left shoulder, neck and lower back. She attended the Emergency Department at her local hospital. She was examined and provided with analgesic medication. She was not admitted.
After this reported injury the Applicant reported escalating pain, immobility and muscle weakness. She underwent extensive tests initiated by various practitioners none of which identified an organic cause for her complaints.
Early in 2013 the Applicant went on an extended visit to China with her parents. She apparently relinquished her social housing to do so. She reports unsuccessfully trialling therapies for her reported pain condition while in China.
In late March 2013 the Applicant returned to Australia and lived in youth refugees until she obtained temporary social housing in inner city Sydney.
Between June and July 2013, she returned to live with her mother in the context of describing high care needs due to pain and immobility, which she insisted her mother provide to her. She ceased to walk and began to use a manual wheelchair for mobility. Conflict developed between the Applicant and her mother because of the Applicant’s demands for complete care. The Applicant is reported to have urinated and defecated in her bed to antagonise her mother when she would not meet the Applicant’s demands for care. The Applicant’s mother requested the assistance of acute mental health services in response to the Applicant significantly reducing her oral liquid and food intake which resulted in the Applicant’s admission to a public Mental Health Facility. The Applicant’s mother reported to mental health staff at that time that the Applicant was capable of walking and caring for herself at that time and would do so when she thought she was not being observed.
By November 2013 the Applicant reported being ‘bedbound’. She was at that time living in an apartment supported by a youth service. A youth worker dropped in food to her once a week.
By 2015 the Applicant reported being dependent upon others for all aspects of personal care. She is reported to have arranged this care partly by using savings, partly by serially engaging care providers without paying their invoices for services provided, and partly by crowd funding.
In December 2016 the Applicant became a participant in the NDIS. A support provider was engaged to assist with daily living and domestic assistance. However, this was a fractious relationship. The Applicant is reported as having been verbally abusive to her support staff, spitting at them, and otherwise requiring them to perform tasks in a manner that represented an occupational health and safety risk to them.
As already noted, on 10 August 2017 a delegate of the CEO revoked the Applicant’s status as a participant in the NDIS which resulted in the cessation of funding for disability related supports. This led to her admission to hospital in February 2019 and again in April 2019, where she underwent various further investigations, including by Dr S W, Neurologist. I shall refer to Dr S W’s evidence in relation to these admissions and more generally following.
During the period she was not funded for NDIS support the Applicant is reported as living in squalid conditions, including with an accumulation of sanitary pads piled around her in her bedroom. It was these conditions that led, at least in part, to the Applicant’s hospital admissions at that time.
As I have already noted, the Applicant’s status as a participant in the NDIS was reinstated on 17 September 2019. That resulted in a resumption in funding for disability support staff. She now self-manages those staff.
The Applicant has an extensive history of self-harm behaviours, which include intentional cutting of her body and overdoses of prescription medication. One of the reported occupational health and safety challenges faced by her support provider from 2016 to 2017 was her persistent behaviour of ordering cutting implements (scalpels and other blades) via on-line shopping and having them delivered to her apartment. Upon receipt of them she would hide them in her bed linen and other places about her and use them to cause self-injury or threaten it to her support workers. In October 2019 the Applicant was admitted to hospital in the context of an overdose of prescribed pain medication. In December 2019 the Applicant was admitted to hospital in connection with intentional cutting self-harm. She was admitted to hospital again in March 2020 in the context of a deliberate overdose of prescribed medication.
In April 2020 the Applicant was reviewed by a Consultant Psychiatrist, Dr P Y, who in a report produced following his review opined:
Clearly there are some major inconsistencies in her history, symptoms and overall presentation. My initial impression is that the one diagnosis that is clear is that of Borderline Personality Disorder. I am sceptical regarding the diagnosis of complex regional pain syndrome and I think that factitious disorder is more likely than this or the alternative of somatic symptom disorder. This will require some forensic level checking of past medical records to confirm.
I expect that [the Applicant] will remain heavily invested in dysfunctional help seeking and in manipulation of the health and welfare systems to meet her needs. I think that the aim in the short-term should be harm minimisation with regard to prescribing substances susceptible to dependency and/or overdose, and with provision of other services she will become dependent upon.

On 20 May 2020, the Applicant was reviewed by a Clinical Psychologist, Dr G N. In a report arising from that review, Dr G N opined:
I agree with [Dr P Y] that [the Applicant] is clearly suffering from Borderline Personality Disorder. [Dr P Y] has queried the diagnosis of Complex Regional Pain Syndrome and he feels that Factitious Disorder is more likely and I tend to agree a more detailed investigation will be required to differentiate her difficulties from the alternative of Somatic Symptom Disorder
In August 2020 Dr G N wrote to the referring practitioner to provide an update on his treatment of the Applicant. The salient content of that letter is set out following:
Since my last letter to you I have met with [the Applicant] on a further eight occasions. As I indicated in that letter, I have continued to carefully assess [the Applicant’s] case and I have had the opportunity to employ several checks of symptom validity including the Minnesota multiphasic personality inventory as well as to interview one of [the Applicant’s] carers who knows her well. [The Applicant] is a complex and unusual case and has been associated with diagnostic and treatment challenges since she began to seek assistance.
[The Applicant] has been diagnosed with a pain disorder, complex regional pain syndrome (CPRS) as well and [Dr P Y] and myself are favoured in alternative diagnosis such as Factitious Disorder.
Regardless of her diagnosis [the Applicant] has spent years lying in bed receiving a great deal of care including 24 hour care at present funded by the NDIS and includes most activities of daily living including provision of meals and addressing her toileting in bed. I understand that [the Applicant] has repeatedly declined more active approaches to managing her pain issues reporting that even slight movements exacerbated her pain dramatically.
As I have described I feel that [the Applicant’s] personality structure is consistent with Borderline Personality Disorder as her symptoms have included unstable affects interpersonal relationships, recurrent suicidal threats, self-mutilating behaviour and associated behaviours (including smiling with euthymic affect when describing having chewed glass and being observed to be entertained by discussing her own self-harm). She has marked reactivity of mood impulsivity and inappropriate and intense anger. I believe that unfortunately her borderline personality disorder is severe and entrenched and strongly relates to that she has consistently described as a very challenging developmental background and more specifically severe difficulties in her relationships with her parents throughout her life and I feel that my interview with her carer provided corroborative information regarding her borderline personality structure.
After extensive and thorough investigation over the course of many months and via various modalities, I continue to favour Factitious Disorder as opposed to CRPS. In my opinion [the Applicant] does not display pain behaviours or complain about her pain in a way which is in any way typical of clients with chronic pain. I have been treating pain conditions extensively for over 2 decades and I hold a master’s degree in pain management from the University of Sydney. During my time treating clients with pain disorders, I have never witnessed someone with a credible serious pain condition behaving as [the Applicant] does.
Notably, you know early sessions I would frequently bring [the Applicant’s] focus back to her pain associated disability. This is the opposite of someone with a somatic symptom disorder who has an excessive focus on her pain and disability and who typically benefits from strategies allowing [them] to be able to focus on other topics. [The Applicant’s] carer reported that [she] had not complained of pain in the prior month.
Further, [the Applicant] has not described a single pain related flare up through the course of any sessions with her, which is again completely contrary to my experience in the treatment of clients with chronic pain conditions. Correspondingly, [the Applicant] is variously guarded and irritable with apparent indifference through each session to her problems with pain which has at other times described as worsening and unbearable.
Despite her reported movement difficulties, [the Applicant] has been observed (by myself and her carer) to be able to lift and move her body without apparent pain or other difficulty. Further, her carer reports that she is able to form a bridge with her lower legs in order for her continence underwear to be changed. [The Applicant] has been observed to be able to move her arms freely without pain and to be able to hold her arms in position for hours at a time while holding her phone to play a game. I also understand that, unusually, [the Applicant] does not suffer from muscle wasting as would be expected in a woman confined to her bed without movement.
…
I intend to carefully work therapeutically with [the Applicant] with these issues in mind, will be mindful of her safety support and care needs given the complexity of her presentation and history of self-harm over notes and statements around suicide. This is likely to involve a gradual reduction in her NDIS funded supports and a move towards greater independence.
The Applicant consulted Dr G N for psychological treatment up to the end of 2020, when she disengaged from him. In a letter to the referring practitioner dated 10 December 2020 he confirms the Applicant’s diagnosis as Borderline Personality Disorder and Factitious Disorder and states: “Given the difficulty [the Applicant] had experienced in discussing my conceptualisation of her difficulties I am not surprised that she has withdrawn from therapy with me”.
On 27 January 2021, Dr P Y wrote to the referring practitioner to advise:
I am writing to update you regarding [the Applicant] who has not attended and failed to rebook further appointments.
Overall, my opinion remains as discussed in that I believe that her primary diagnosis is a severe Borderline Personality Disorder and what we are seeing is essentially Factitious Disorder presenting as chronic pain and disability. Her presentation is most similar to other cases of Munchausen syndrome I have seen in the past and seems to be driven by her anger towards her parents and authority figures with the obtaining of support and services as a way of achieving a sense of superiority and control.
I think she has a very poor prognosis and limiting harm by not encouraging dependency on current and additional services is the correct approach. I expect that she will not engage with psychological treatment and that she will escalate her behaviour including threats of self-harm if she perceives that her demands are not met. Ultimately she is likely to require involuntary inpatient treatment in a controlled and restricted environment if her behaviour is to be addressed.
The Applicant’s case is founded upon the following history which is summarised in the profile contained in her Participant Plan:[23]
[23] Hearing Tender Bundle, Tab T15, page 130
My profile
…
I am a physically disabled young woman living in the community with the aid of support workers. I have suffered from complex regional pain syndrome since an accident in 2012, resulting in weakness, fatigue, chronic pain and muscle tension & spasms.
I cannot sit upright due to weakness and suffer significant symptom exacerbation from minor movements (e.g. using arms or reading). E.g. tearing sensations in my nerves and muscle tension, followed by ongoing increase in weakness and muscle tension.
I require around-the-clock care from support workers, involving assistance with personal hygiene, domestic tasks and errands. I generally require assistance with all tasks that involve leaving my bed, manoeuvring my body or using my arms for prolonged periods of time, such as changing linen after sheets are soiled.
To leave my bed, I would need to be transferred in a flat position on a stretcher by 2 people. I require paramedic transport when leaving my home. I have not left my apartment since 2019.
Current situation
I am currently receiving a temporary NDIS plan with provision for around the clock care, and this has led to benefits to my quality of life. E.g. I no longer have to lie in soiled linen for hours at a time. Additionally, I have some hope in the planned allied health treatments to alleviate the impacts of my disability (e.g. to prevent diabetes).
Nevertheless my quality of life is far worse now than it was in previous years, as a result of being denied adequate care for yours. I am weaker, suffer unbearable muscle tension and spasms, and have a greater need for services. Other practical challenges also remain: e. g. I have difficulty hiring reliable and appropriately skilled support workers.
Historical problems with the NDIA:
From August 2017 to November 2019, I was denied funding from the NDIS. This was justified by the NDIA through their misrepresentation of my medical documentation. During this period, I struggled to afford care services, lived in fearful and degrading conditions and had to engage in tasks that exacerbated my condition. In 2018, my GP reported that I was living in such unsanitary conditions that garbage bags of incontinence pads were piled knee-deep in my room. In 2019, I spent 2.5 months living in hospital because I couldn’t access enough care services at home.
I suffered increasing muscle tension as a result of problems during my 2-month hospitalisation and the severe stress I was under. In a vain attempt to reduce my symptoms, I overdosed on medications and had a seizure.
I now suffer from unbearable symptoms and will continue to have a worse quality of life than I would have had otherwise. Given that the NDIA was always going to need to fund my support services in the end, I do not understand why they put me through such suffering or why they exacerbated my impairment knowing that they risked creating higher needs that are more expensive to support in the long term
My family and friends
I have a small number of friends I speak to by messaging, phone and email. Most of them don’t live in Sydney. I also have another friend who sees me in person from time to time. I am otherwise very isolated and have minimal contact with people outside of healthcare. I am not in contact with my family and there is no way to get assistance or support from them due to a history of domestic violence from my father and due to the fact that all of my extended family lives overseas.
…
The Applicant’s Participant Plan, as it stood before 4 March 2025, incorporated the following Statement of Goals and Aspirations which had been submitted to the CEO pursuant to s 33(1) of the Act:
My goals
This is what I want to achieve
Short-term goal
I wish to live in a home that is disability-accessible to all supine transfers (e.g. via a bed or patient transfer trolley). I wish to be able to leave my bedroom, maintain personal hygiene, go to a private outdoor area regularly and ensure my safety in the event of an emergency.
Short-term goal
I would like to continue living independently in the community, by being assisted to complete tasks that my disability prevents. As part of this goal, I also wish to avoid hospitalisation, by accessing support to limit medical complications from my disability.
Medium of long-term goal
I would like to recruit and build long-term relationships with highly-skilled care workers who are capable of completing all tasks that my disability prevents and suit my personal preferences.
Medium of long-term goal
I would like sufficient assistance to reduce symptom exacerbation, limit deterioration and prevent medical complications associated with my primary disability. This way, I hope to limit permanent reductions in my quality of life, and prevent long-term increases in the costs of my supports.
Medium of long-term goal
I would like to be assisted to go outdoors regularly, on transfer/mobility equipment that is appropriate for my physical limitations.
Medium of long-term goal
I would like to be assisted to access the community, both through patient transport to leave my home and through regular social visits from people (other than care workers) who can cater to my specific personal interests & needs and alleviate isolation. Additionally, I require assistance with manual tasks to keep up with written communications for social contact.
Medium of long-term goal
I would like to be assisted to access remote learning services or a private tutor, through aid with manual tasks to limit exacerbation of my disability. (This would need to be a low workload adjusted for my disability.)
On 4 March 2025, the Applicant filed a new Statement of Goals and Aspirations which she sought to have included in her SoPS,[24] which is as follows:
Goals in detail
1.I would like to be supported with 24/7 care in order to remain living independently in the community (outside of institutional care) while maintaining safety, dignity and quality of life, ensuring my long-term welfare.
2.In response to my disabling chronic pain condition that is prone to deterioration, I would like sufficient support to minimise symptom aggravation and long-term deterioration.
3.I would like to be supported to go outdoors.
4.I would like to be supported to access opportunities for engagement in education.
5.I would like to attempt gradual rehabilitation to the extent possible, while receiving assistance for my continued disability support needs.
[24] Section 47 of the Act provides, in short summary, that a participant may give the CEO a changed version of their Statement of Goals and Aspirations at any time, and that if they do so, the participant’s plan is taken to be varied so that it includes the changed version.
Applicable law
The NDIS Act is founded upon an explicit values base which is found in its objects (s 3), general principles (s 4), general principles guiding actions (s 5), and with respect to participants and their plans, in more specific principles contained in ss 17A and 31. It is unnecessary for present purposes to set out these value statements in detail, except to note what is said in object 3(11) about the purpose of NDIS supports:
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
In giving effect to the objects of the Act, regard must be had to the need to ensure the financial sustainability of the NDIS: s 3(3)(b). It is also a general principle that, relevantly, the CEO and any other person performing functions or exercising powers under the NDIS Act is to have regard to the need to ensure the financial sustainability of the NDIS: s 4(17).
Section 33 of the NDIS Act sets out the matters that must be included in a NDIS Participant Plan.
Pursuant to s 33(1), the Plan must include the Participant’s Statement of Goals and Aspirations.
Pursuant to s 33(2), the Plan must include a SoPS, prepared with the participant and approved by the CEO that specifies, relevantly to this case, (b) the reasonable and necessary supports (if any) that will be funded under the NDIS.
Section 34 of the NDIS Act determines what is a “reasonable and necessary support” for the purposes of s 33(2):
34 Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support.
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see s 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is an NDIS support for the participant.
Note:For the purposes of paragraph (aa):
(a)the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b)a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
Sections 34(2), 35 and 209(2A) of the NDIS Act prescribe rule making powers in connection, relevantly, with the funding or provision of reasonable and necessary supports. Several Rules made pursuant to these rule-making powers are potentially applicable in the circumstances of this case.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) inform the interpretation and application of the s 34(1) considerations. Additionally, the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Rules 2024 (Cth) and the National Disability Insurance Scheme (Getting the NDIS Back on Track no. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) are relevant in determining the paragraph 34(1)(f) consideration.
As will emerge following, disposition of this case turns on the requirements inserted into s 34(1) by Item 46 of the Getting the NDIS Back on Track Act, being relevantly, paragraph 34(1)(aa). Consideration of that requirement turns on the disability requirements and the early intervention requirements found in ss 24 and 25 of the principal Act:
24       Disability requirements
(1)       A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)      mobility;
(v)       self-care;
(vi)      self-management; and
(d)the impairments or impairments affect the person’s capacity for social and economic participation; and
(e)the person is likely to require NDIS supports 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 NDIS supports under the National Disability Insurance Scheme for their 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 NDIS supports for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
…
25       Early intervention requirements
(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 a developmental delay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for support 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; and
(d)the CEO is satisfied any early intervention supports that would be likely to benefit the person as mentioned in paragraphs (b) and (c) would be NDIS supports for the person
Note:In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(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.
Note 1:The time at which a requirement in this section needs to be met is the time the matter falls to be determined. For an access request, that time is the time of considering the request (see paragraph 21(1)(c)).
Note 2:National Disability Insurance Scheme rules may be made in relation to this section under subsection 27(1).

Rules 5.4 to 5.7 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Becoming a Participant Rules) deal with the question of when an impairment is permanent or likely to be permanent and are relevant in this case. Those Rules provide:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4An impairment is, or is likely to be, permanent … only if there are no known available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5An 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.
Consideration
There are three preliminary issues that I must deal with before turning to the substantive issues in this review.
As explained above, the Applicant challenges the Tribunal’s jurisdiction to consider if her existing supports should continue to be approved for inclusion in her SoPS. She contends that jurisdiction is limited to the review of the requested supports that are in dispute.
The Tribunal’s jurisdiction to review a decision of the CEO to approve a SoPS was authoritatively stated by the Full Court in QDKH[25] by reference to the High Court’s decision in Frugtniet.[26] In short summary, the Tribunal’s jurisdiction is governed by s 12 of the ART Act read together with s 103 of the NDIS Act. That jurisdiction involves the Tribunal reviewing the decision of the review delegate of the CEO made under s 100 of the NDIS Act, who is in turn reviewing the original delegate’s decision to approve a SoPS under s 33(2) of the NDIS Act, which is designated a reviewable decision by Item 4 of the Table to s 99(1) of the NDIS Act. The Tribunal’s role is to stand in the shoes of the internal reviewer and determine for itself the decision which should be made in the exercise of the power under s 100 of the NDIS Act. The scope of the Tribunal’s jurisdiction is, therefore, determined by reference to the scope of the internal reviewer’s powers under s 100 of the NDIS Act, which is in turn informed by the scope of the power under s 33(2) of the NDIS Act.
[25] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7]
[26] Frugniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [51]
Having regard to that authoritative statement there can be no issue that the whole of the decision to approve the Applicant’s SoPS is before the Tribunal, not just that part of the decision which involved the refusal to approve certain requested supports.
The second objection the Applicant has raised in relation to the CEO putting her existing supports in issue is that it is procedurally unfair for her to do this. That is because, it is submitted, the Applicant prepared her case for hearing on the understanding that these supports were not in issue. I have outlined above the procedural history to the CEO putting these supports in issue and accept that the Applicant’s existing approved supports were not initially the subject of active contest.
However, the position requires some refinement. First, the CEO has not put in issue the past funding of the Applicant’s approved supports. She has put in issue their future funding. Second, the Applicant has always sought from the Tribunal the further approval of her existing supports in respect of the future period in relation to which the Tribunal’s decision would be operative. By the request she filed on 24 May 2024 that would have involved the approval of the funding of these supports for a further 3-year period. In her final submissions that request has been reduced to a further 1-year period. It is therefore not the case that the Tribunal was not called upon to make any decision in relation to these supports.
But more fundamentally, any unfairness to the Applicant that might have arisen because of the CEO’s change of stance has been overcome by subsequent developments.
The Applicant was put in notice as to the CEO’s change of position on day 2 of the December Hearing days while she was legally represented. That resulted from an express direction from me to the CEO to clarify her position to accord procedural fairness to the Applicant in the conduct of the review. That was before her cross-examination was completed and before the opportunity for re-examination. It was before any other witness had been examined.
The Hearing then had to be adjourned to March 2025. This provided a 3-month interval in which the Applicant had the opportunity to consider her position in relation to her existing supports and obtain advice if appropriate.
At the hearing in December 2024 and March 2025 the Applicant filed several additional documents in support of her case. The Applicant was thus not deprived of the opportunity to file further evidence following the CEO’s change of stance.
Following the hearing in March 2025 the Applicant also had the opportunity to file post-hearing submissions addressed to the issue of her existing supports among other matters and she did so, attaching approximately 700 pages of documents from the T-Documents and Hearing tender bundle, as well as case law on which she relied. She was legally assisted at that time.
I am thus satisfied that the Applicant was provided with substantial time and opportunity to consider her position and respond to the CEO’s change of position concerning her existing supports. No procedural unfairness to the Applicant of the kind identified in Ansell v Wells[27] arises in these circumstances.
[27] (1982) 43 ALR 41 per Lockhard J at [62]
I now turn to the substantive issues in this review.
An appropriate starting point is to consider the structure of s 34(1) of the Act. It sets out 6 criteria that must be satisfied before the CEO can approve a support for inclusion in a SoPS pursuant to s 33(2). Each of those criteria is expressed conjunctively, meaning that each must be separately satisfied before the support can be included. If one of those criteria is not satisfied then the support cannot be included, even if every other criterion were to be satisfied.
This brings me to paragraph 34(1)(aa) in s 34(1) which was introduced to the principal Act by item 46 of Schedule 1 of the Getting the NDIS Back on Track Amendments. Sub-item 129(1) of Schedule 1 of that Act provides, relevantly, that s 34 of the principal Act as in force on and after the commencement of Schedule 1 of the amending Act, applies in relation to a SoPS included in an old framework plan for a participant if the SoPS is approved or varied on or after that commencement. Sub-item 129(2) provides that this is the case in relation to a variation of a SoPS whether the plan comes into effect before, on or after that commencement. Sub-item 129(4) provides that this applies to a decision made by this Tribunal on review of a decision made by the CEO before the commencement.
It is not in issue that the Applicant’s SoPS is in an ‘old framework plan’.[28] The effect of the amending provision is therefore that upon review, the Tribunal, standing in the shoes of the CEO, is obliged to apply the paragraph 34(1)(aa) criterion in reviews of SoPS conducted on and after 3 October 2024, even though this provision did not apply when the original or internal review decisions were made or when the application for review was filed in the Tribunal.
[28] see s 32A of the NDIS Act.
In her closing submissions the Applicant does not challenge the Tribunal’s obligation to apply this provision. However, she does challenge the Tribunal’s ability to ‘go behind’ the decision of the CEO that she met the disability requirements for access to the NDIS. As noted above, in this case, this was an AAT consent decision made on 6 September 2019 in the context of the review of a decision to revoke the Applicant’s status as a participant made on 10 August 2017. The effect of the Tribunal’s decision was to substitute the revocation decision with a decision that the Applicant continued to meet the disability requirements for access to the NDIS on and from 10 August 2017 based on impairments that were derivative of Complex Regional Pain Syndrome.
By reference to item 46 of the Explanatory Memorandum to the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Bill 2024, which purports to explain the purpose of paragraph 34(1)(aa), the Applicant submits that she is not required to “prove her disability” again.[29]
[29] Applicant’s closing submissions, dated 19 May 2025, at [4]
I have discussed the text, context and purpose of paragraph 34(1)(aa), including by reference to the Explanatory Memorandum at some length in Forrest.[30] I adopt what I have said there for present purposes. In short summary, I concluded that despite those words appearing in the Explanatory Memorandum, the text of the paragraph, being the use of the irregular verb ‘meets’ expressed in the present continuous tense, combined with the context and purpose of s 34(1) indicate that the temporal point for paragraph 34(1)(aa) is the time a decision to approve a SoPS is made, and not an earlier time when a participant was found to meet the NDIS access requirements.[31]
[30] Forrest and National Disability Insurance Agency (NDIS) [2025] ARTA 1131
[31] At [57] – [65]
Relying on that analysis in this case, it is therefore the position that I must be satisfied that the supports in issue (being both the previously approved supports and the requested supports) are necessary to meet the needs of the Applicant as this arises from an impairment in relation to which she meets either the disability requirements or the early intervention requirements at the date of my decision.
For completeness, I will address one further submission made by the Applicant in connection with this issue. It is submitted that s 31 of the ART Act (which prohibits a decision-maker from changing a reviewable decision while it is before the Tribunal for review) somehow deprives the Tribunal of jurisdiction to either review the Applicant’s existing supports or the basis on which she was found to meet the disability requirements for access to the NDIS, or both.
Section 31 of the ART Act is expressly negatived by s 103(2) of the NDIS Act which operates to place before the Tribunal for review any decision after the internal review decision to replace or vary a participant plan containing a SoPS. In this case the Applicant’s participant plan has been varied several times since the internal review decision was made to extend the period of her SoPS and to replenish the supports it contains. Each of those variation decisions is before the Tribunal for review by operation of s 103(2). If they were not, this review would be a futility as it would concern a long ‘spent’ SoPS. Additionally, as I have stated above, the CEO does not in this review at least, seek to challenge the past provision of the Applicant’s existing supports, what is in issue is their future provision.
The term ‘impairment’ is not defined in the NDIS or its Rules. However, the Agency’s operational guidelines define it to mean “a loss of or damage to your body’s function”.[32] As I have discussed in Burrows[33] this conceptualisation of impairment for the purposes of s 24(1) was specifically approved by the Court in Davis.[34] That definition is a simple rendering of the definition of impairment[35] used in the application of the International Classification of Functioning Disability and Health (ICF), which is “a problem of body function or structure such as a significant deviation or loss as compared with typical or expected function or structure”. [36]
[32] National Disability Insurance Agency, Applying to the NDIS, 10 December 2024 at page 6 - 7
[33] Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607 at [25]
[34] at [118] referring to [113].
[35] World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3 (WHO (2002) at page 2.
[36] World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva: International Classification of Functioning, Disability and Health (ICF)
As I have discussed in DQKZ[37] the ICF may be used as an aid to interpretation of terms and concepts used in the implementation of the NDIS, particularly because of its express objective of providing a standardised classification system and language in relation to human function.[38] Impairment occurs in the context of a health condition or health-related condition, being a disorder, disease or injury. Impairment is however conceptually distinct from a health condition, and it is also distinct from the concept of disability. Impairment is effect of the health condition on bodily function, including mental function. Disability is the social and environmental impact the person experiences because of their health condition and impairments.[39] It is important not to conflate the terms and concepts of health condition, impairment and disability as this may lead to their misapplication for the purposes of the NDIS Act.[40]
[37] DQKZ and National Disability Insurance Agency [2025] AATA 2276
[38] WHO (2002), page 1 – 2.
[39] Ibid
[40] Davis at [118].
Paragraph 34(1)(aa) is concerned with impairment, and relevantly in this case, with the permanence of that impairment. However, the legal test the Tribunal is required to apply necessarily involves the identification of the health condition or health-related condition from which an impairment is derivative. That is necessary because the Tribunal is required by the Rules to be satisfied, among other things, that there are no known available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. That can only be the case if the Tribunal is satisfied that the person has received all reasonably available appropriate treatment for their health condition.[41] Evidence of the misdiagnosis of a health condition or health-related state is likely to make it impossible for the Tribunal to be satisfied an impairment is permanent. That is because the person is unlikely to have received all known available and appropriate evidence-based clinical, medical or other treatments for health condition, as correctly diagnosed.
[41] Kelly v National Disability Insurance Agency [2024] FCA 1462 at [48].
In this case the Applicant’s reported impairments are found in Chapters 2 and 7 of the ICF, being Sensory Functions and Pain (Pain - b280 to b289), and Neuromusculoskeletal and Movement Related Functions (Muscle Function b730 to b749; and b750 to b789 Movement Functions). It is unnecessary to elaborate on these impairments for present purposes. I do not understand there to be any substantive issue as to the existence of these impairments at a functional level. The issues are rather whether there is any organic neurological basis for these functional impairments or if they result from undiagnosed and/or untreated disorder of mental function. To put it another way, what is in issue in this case is whether these a neurological and/or physical impairments, or impairments to which a psychosocial disability is attributable for the purposes of paragraph 34(1)(aa) and s 24(1).
The evidence that is determinative of the issue of the permanence of the Applicant’s impairments is found principally in the reports and oral evidence of Dr S W (Neurologist)[42] and Associate Professor D C (pain specialist),[43] both being witnesses called by the Applicant, the latter in the capacity of an independent expert, and Professor C S (Neurologist), being an independent expert commissioned and called by the CEO.[44]
[42] Hearing Tender Bundle, Tab A29, pages 412 – 420 and oral evidence day 2.
[43] Hearing Tender Bundle, Tab A 65, pages 1025 – 1053 and oral evidence day 3.
[44] Hearing Tender Bundle, Tab R1 and oral evidence day 8.
The Applicant also seeks to rely substantially on a report authored by Ms C S, a self-described “semi-retired pain psychologist with 30 years’ experience in the treatment of trauma and chronic pain conditions”. Ms C S was contacted by the Applicant in the context of this review for an opinion. For the purposes of developing her report, she conducted telehealth interviews and observations of the Applicant and reviewed a series of documents provided to her by the Applicant.[45] Ms C S was not offered as a witness despite the CEO’s request. In the absence of an opportunity to test Ms C S’ evidence on issues that were the subject of intensive examination of other experts, her report cannot be given any weight.
[45] Hearing Tender Bundle, Tab A 65, pages 1025 – 1053.
Dr S W is in a therapeutic relationship with the Applicant. He first saw her in September 2025 and has been seeing her on a “fairly regular” basis since then, generally every 3 to 6 months and several times a week during her hospital admissions.[46]
[46] Hearing Tender Bundle, Tab A29, page 412.
Associate Professor D C was briefed by solicitors then acting for the Applicant to conduct an independent medical examination. This consisted of the review of voluminous medical and other documentary materials identified in his report and an in-person examination of the Applicant at her home on 30 October 2024.[47]
[47] Hearing Tender Bundle, Tab A 52, page 769.
Professor C S was briefed by solicitors acting for the CEO to conduct an independent medical examination. The CEO had sought to include an in-person examination as a component of this examination, but the Applicant refused to agree to this. Professor C S therefore conducted a review of voluminous medical and other documentary materials identified in her report.[48] She was subsequently briefed with further documents filed by the Applicant after her review, including subsequent reports of Dr S W and Associate Professor D C.
[48] Professor C S, report dated 14 March 2023; the documents reviewed are identified at pages 1 to 4 of the report.
Dr S W’s evidence may be distilled to the following propositions:
i.in his opinion the Applicant’s health condition is Complex Regional Pain Syndrome (CRPS), which is a neurological/physical condition. He considers the Applicant’s impairments to be neurological and physical impairments derivative of that condition. He considers them permanent because there is no treatment that is likely to remedy her CRPS,
ii.despite that dominant opinion, he agrees that there is “also likely that there is some current psychological disorder”, and “significant psychological components” to the Applicants problems. In oral evidence he acknowledged that he had questioned his diagnosis of CRPS in discussions with Dr N, but still believed this was the best diagnosis for this difficult case,[49]
iii.in oral evidence he conceded that the Applicant did not display signs of muscle atrophy and that her muscle power was normal. He also agreed that all medical examinations and imaging tests (X-rays and MRIs etc) had detected no abnormality.
[49] Dr S W, Oral evidence, Day 2 of the Hearing, 11 December 2024.

The following extract from Dr S W’s report of 27 March 2024 assists in providing further context and nuance in relation to these opinions:
…
In terms of disability and handicap, she is confined to bed “24/7” and has been for the past 10 years. She requires carers to assist with feeding, drinking, bathing and toileting. She can only use her arms above her body for relatively short periods of time without aggravation of symptoms. I wrote a report dated 21 February 2018 that “I consider her level of disability to be comparable at least to a patient with high paraplegia and arguably a patient with incomplete paraplegia and I stand by the statement.
The client’s problems followed on from a predominant upper limb injury when falling down stairs in 2012 and then spread to involve her whole body. This is neuropathic pain and some neurological symptoms apart from this including pins and needles, perceived weakness and at times there is swelling and redness of extremities. On this basis I have made a diagnosis of “complex regional pain syndrome” involving all 4 limbs and trunk. At the very least, I consider it highly likely that the pathophysiology is “central sensitisation”. Complex regional pain syndrome and central sensitisation are not evident on investigations. The client has been extensively investigated and in large part all investigations have been normal and unremarkable. This is in keeping with complex regional pain syndrome but is not specifically diagnostic of complex regional pain syndrome, which is largely a clinical diagnosis based on history and examination.
…
There is no doubt that there has been significant psychological trauma in [the Applicant’s] life and it is also likely that there is some current psychological disorder and clearly it is beyond my expertise as a clinical neurologist to be more specific, Despite this, my strong clinical view is that the history and repeated examination and MRI scan sequence supports a predominant organic disorder, either complex regional pain syndrome or a disorder with similar pathophysiology.
…
I reiterate that I consider she has an organic disorder. In the event that my diagnosis is incorrect and that the pathophysiology of her condition is primarily psychological, I consider that after 10 years confined to a bed on her back the prospect of any substantial improvement in the long-term is effectively zero. I note in this respect that she has seen several psychiatrists and psychologists who have attempted treatment and also received multidisciplinary treatment in hospital, and I can see absolutely no prospect for substantial recovery from her current level of disability.
I consider that withdrawal of her current level of care will necessarily result in suffering, medical complications and prolonged and possibility indefinite admission to public hospital care.
…
Associate Professor D C’s evidence may be distilled to the following propositions:
i.he disagrees with a diagnosis of CRPS. He opines that while the Applicant’s clinical features may previously have met the criteria for this syndrome, they did not when he assessed her in 2019, or when he examined her on 30 October 2024,
ii.in his opinion the Applicant experiences “Nociplastic pain”, which is defined as “pain that arises from altered nociception, not fully explained by nociceptive or neuropathic pain mechanisms. In lay terms, as I understand it, nociplastic pain is chronic pain arising from altered functioning of the nervous system, not from tissue damage or injury. It is the perception of pain. Professor D C opines that nociplastic pain manifests in the musculoskeletal system and is identifiable by reference to the presence of the following conditions:
(1)pain duration for more than 3 months,
(2)regional, multifocal or widespread rather than discrete distribution of pain,
(3)pain cannot entirely be explained by nociceptive or neuropathic mechanisms; and
(4)clinical signs of hypersensitivity present in the region of pain.
iii.He agreed with Professor C S that the Applicant does not have a neurological diagnosis.
iv.He did “not argue about [a diagnosis] of Borderline Personality Disorder but disagreed with a diagnosis of Factitious Disorder “because there is an entirely plausible explanation for pain” namely “nociplastic pain complicating initial spinal and other painful injuries”,
v.in cross-examination, he conceded that he had not been made aware of the fact that the Applicant was receiving physiotherapy more than once a week, including Shiatzu. He expressed the opinion that it would be inconsistent with his diagnosis of nociplastic pain if the Applicant was able to tolerate (and by implication enjoy) frequent hands-on body treatment of this kind, particularly high/deep pressure manipulation. That is because nociplastic pain involves hypersensitivity to touch, pressure and movement.
v.ultimately, he expressed the view that the Applicant’s condition was nervous system related, and nociplastic, that is, pain felt because of distorted processing of pain nociceptive pain signals.
vi.he considered the Applicant’s pain condition permanent.
Professor C S’s evidence may be distilled to the following propositions:
i.she disagreed with Dr S W’s diagnosis of CRPS. Her review of the materials with which she was briefed indicated that the imaging findings did not provide support for any organic component to the Applicant’s presentation, including they did they indicate any underlying neurodegenerative disorder or injury to a specific nerve or nerve-root plexus,
ii.she understood why Associate Professor D C diagnosed the Applicant with nociplastic pain (which she describes as perceived pain). However, she did not agree that this diagnosis explained the Applicant’s extensive history of mental health concerns, including self-harm behaviours, which she identified as being reported as early as 2012 and before the reported injury that led to the Applicant’s current presentation. That is, she concluded that there was an plausible alternative reason for the Applicant’s presentation, which was a somatoform disorder, being either related to a Borderline Personality Disorder or Factitious Disorder, or both.
iii.she considered that the materials she reviewed were consistent with the diagnoses of Borderline Personality Disorder and Factitious Disorder that had been made by Dr P Y and Dr G N, but she accepted that these diagnoses were outside her speciality; that is, she noted these diagnoses as persuasive, but did not purport to make them herself,
iv.the Applicant did not require any form of treatment for any neurological condition including/and/or CRPS, because she did not have any such health or health related condition. It was her opinion that the Applicant required treatment for a mental health disorder, which she described as a somatoform disorder or psychological disorder manifesting in a physical impairment. In support of this opinion, Professor C S also cited Associate Professor D C’s diagnosis of nociplastic pain which is also predicated on there being no physical/organic causation of the pain.
v. in response to my further question about the permanency of this condition, Professor C S expressed the opinion that the condition remained “unstable” because the Applicant had not received (or at least completed) treatment for this condition, having disengaged from Dr P Y and Dr G N when they challenged her with diagnoses of Borderline Personality Disorder and Factitious Disorder. She noted that these diagnoses had only been made in 2020, that the Applicant had disengaged from psychiatric and psychological treatment in response to these diagnoses, and that in any event treatment for these conditions is not “quick”.
vi.in response to my further question, Professor C S confirmed her opinion that the Applicant’s presentation did not involve any form of change or variation to expected body structure or function at the organic level (as distinct from the functional level).
In her closing submissions the Applicant is critical of Professor C S’ evidence and argues it ought to be given no weight. That is because, it is said:
i.she undertook a ‘desktop review’ of the Applicant’s case without conducting a physical examination of her. Her conclusion that the Applicant does not have a physical disability should be given no weight in these circumstances. The fact that the Applicant refused to be examined by Professor C S is not relevant. Her desktop review should not have been permitted in those circumstances.
ii.she assumed an absence of physiological changes (joint swelling, muscle atrophy, skin degradation) based on documentary records alone, rather than direct observation, whereas such presentations had been noted by Dr S W on his examination,
iii.Professor C S engaged in the selective re-presentation of the materials with which she was briefed, some of which are unreliable and outdated, to support her conclusion that the Applicant’s presentation had no organic cause and was a physical manifestation of Borderline Personality Disorder and/or Factitious Disorder,
iv.her conclusion that the Applicant’s presentation is derivative of Borderline Personality Disorder and/or Factitious Disorder is speculative, disengaged with the factual matrix with which she was presented, and is outside her field of expertise, contrary to the obligations of an expert as these were enunciated in Makita v Sprowles[50] and in other cases,
v.referring to the requirements of DSM-V[51], diagnosis of Factitious Disorder first requires medical differential diagnosis which Dr P Y did not do, and which Dr G N is not permitted to do (being a psychologist). Having regard to that, Professor C S should not have considered those opinions,
[50] Makita v Sprowles (2001) 52 NSWLR 705
[51] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V), 2013 (as updated), page 326
I do not accept that these criticisms of Professor C S’ evidence should lead to it being given no weight. That is because:
i.Professor C S cannot reasonably be criticised for failing to conduct a physical examination of the Applicant when it was the Applicant herself who refused to permit this,
ii.The CEO was entitled to obtain an expert opinion on the papers that were before the Tribunal in relation to the Applicant’s presenting condition. She had no real alternative when in circumstances where the Applicant refused to cooperate in a physical examination. Pursuant to s 56(1) of the ART Act the CEO is under an obligation to use her best endeavours to assist the Tribunal to make the correct or preferrable decision in relation to the proceeding. Professor C S’ evidence addressed fundamental issues in relation to which the Tribunal required such assistance,
iii.Professor C S did not purport to diagnose the Applicant with Borderline Personality Disorder or Factitious Disorder outside her field of expertise as a neurologist. She expressly disavowed doing so several times. Rather she expressed the opinion that the Applicant’s presentation has no neurological or other organic causation. That conclusion is clearly within Professor C S’ field of expertise. She noted the diagnoses of Borderline Personality Disorder and Factitious Disorder made by Dr P Y and Dr G N as being most consistent with the Applicant’s presentation and the evidence with which she had been briefed. It was necessary for her to do so to critically evaluate the diagnoses made by Dr S W and Associate Professor D C. That is not equivalent to her diagnosing these conditions, and in my opinion, it is within the scope of her expertise to draw that conclusion as a professorial level medical practitioner and specialist,
iv.Professor C S cannot reasonably be held responsible for any of the asserted deficiencies in the manner in which Dr P Y and Dr G N arrived at the diagnoses of Borderline Personality Disorder and Factitious Disorder, if there are any. The Applicant could have challenged Professor C S’ reliance upon those diagnosis by putting any asserted deficiencies in their diagnostic process to her, but she did not.
v.More generally, the Applicant made a deliberate choice not to challenge Professor C S’ evidence, by putting any of her concerns to her directly during her oral evidence. In this respect, I note:
a.the Applicant informed me that she did not wish to ask Professor C S questions when I expressly provided her with the opportunity to do so,
b.in response, I warned the Applicant that if she failed to provide Professor C S with the opportunity to respond to any concerns she had about her opinions and other evidence, it would likely affect the weight that I would give to any subsequent criticisms of this evidence that the Applicant may make,
c.I offered to assist the Applicant to put any issues of concern to her to Professor C S to enable Professor C S to respond to these, acknowledging that she was self-represented and that this might make the process less onerous for her,
d.the Applicant informed me that she had adopted the stance she had after taking legal advice and did not seek my assistance. She stated that she would still be entitled to make submissions about Professor C S’ evidence,
e.I advised the Applicant that I would consider her submissions, but to the extent that they challenged Professor C S’ opinions in circumstances where she had not been given an opportunity to respond to those challenges, I may determine those submissions should be given less weight.
f.the Applicant confirmed that she did not wish to ask Professor C S any questions, and did not seek the Tribunal’s assistance to do so.
Although I cannot find in the material before me that the point was expressly addressed, I will proceed on the basis that if I am satisfied that the Applicant’s correct diagnosis is CRPS, the CEO accepts that this condition is permanent. The outcome of this review would not then turn on the criterion specified in paragraph 34(1)(aa).
However, if I am not satisfied that this is the case, I understand the proposition put by the CEO is that there is no diagnostic clarity as to the Applicant’s condition. In those circumstances the ‘permanency’ requirements specified in Rules 5.4 and 5.6 cannot be satisfied and the Applicant therefore cannot be found to meet the disability requirements specified in s 24(1)(a) and (b) and the early intervention requirements specified in s 25(1). Therefore, the Tribunal cannot be satisfied that the Applicant’s previously approved and requested supports are necessary to meet a need that arises from an impairment in relation to which she meets the disability requirements or the early intervention requirements for the purposes of paragraph 34(1)(aa).
In my considered assessment of the totality of the evidence I cannot be satisfied that the Applicant’s functional impairments occur in the context of CRPS for several reasons:
i.this is an organic condition. The Applicant has undergone a multitude of medical tests by a multitude of doctors and medical specialists over 13 years which have not reported any organic basis for her condition,
ii.Professor C S, a consultant neurologist, after an extensive review of the Applicant’s medical and social history, concluded that there is no reasonable foundation for this diagnosis. I gave her opinion significant weight,
iii.I accept that CRPS is not necessarily identifiable by diagnostic testing. It is a condition the diagnosis of which relies substantially on patient self-reporting of pain symptoms. However, on the evidence before me Dr S W’s diagnosis has not involved sufficient critical consideration of the potential for the Applicant’s misreporting of pain and immobility symptoms. He is in a therapeutic relationship with the Applicant. He presented as a caring and capable physician. However, with the greatest respect, in my opinion he did not demonstrate an ability to maintain clinical independence when confronted with her patient self-advocacy,[52]
iv.there is compelling objective evidence of an absence of organic pain and immobility symptoms. These are helpfully summarised in the evidence of Dr G N at paragraph 66, and are also noted by Professor C S in her evidence. These same features were directly observable during the 8-day hearing of this review,
v.Dr S W discounts an underlying mental health disorder in part based on an assumption that she has received extensive psychiatric care and treatment. But that is not the evidence before me. Rather, the evidence before me is that the Applicant has disengaged from mental health treatment when confronted with diagnoses of this kind,
vi.while Associate Professor D C was of the view that the Applicant has a permanent pain condition, being nosiplastic pain, he agreed with Professor C S that the clinical interpretation and progression of the Applicant’s presentation is inconsistent with CRPS.[53]
[52] This was manifested in two ways while this case was before the Tribunal for hearing. At the time Dr S W gave evidence, the Applicant was legally represented. There was an opportunity for re-examination. It became clear from communications to the Tribunal and the CEO post the December hearing days that the Applicant was dissatisfied with the state of his evidence. She sought to recall him as a witness at the March 2025 hearing (which I refused) and solicited and then filed a letter from him dated 12 February 2025 in which he sought to correct some oral evidence he had given in December 2024. In doing so he was clearly acting based on the Applicant’s criticism of his evidence.
[53] Hearing Tender Bundle, Tab A59, page 856
Having reached that conclusion I cannot be satisfied for the purposes of paragraph 34(1)(aa) that the Applicant’s previously approved and requested supports are necessary to address a need that arises from an impairment that is derivative of CRPS.
That leaves the question of whether there is evidence that the Applicant’s functional impairments are derivative of another health condition the treatment of which meets the requirements of Rules 5.4 and 5.6 and which therefore should be considered permanent.
A competing permanent pain condition that Associate D C contends for is nociplastic pain. I am not satisfied on the evidence before me as to that diagnosis for the following reasons:
i.Professor C S, a consultant neurologist, opined based on her extensive review of the Applicant’s medical and social history the Applicant’s pain had no neurological or other organic explanation. I give that opinion significant weight,
ii.Associate Professor D C formed his opinion based on two materials misconceptions of the Applicant’s medical and social history, being an apparent lack of knowledge of her long history of self-harm behaviour, and a lack of knowledge of the significant physical therapy she receives each week, including deep pressure massage (Shiatzu), which is inconsistent with her having hypersensitivity to touch,
iii.the Applicant’s presentation is inconsistent with that of a person subject to long-term pain and immobility. I refer again to the observations made by Dr G N set out at paragraph 66 above, which were also the observations of Professor C S,
iv.there is an alternative, persuasive, alternative diagnostic explanation for the Applicant’s functional impairments, being a somatoform disorder derivative of a Borderline Personality Disorder and Factitious Disorder.
What that leaves is Professor C S’ opinion that the Applicant’s functional impairments are most likely a manifestation of a somatoform disorder, which she notes is consistent with Dr P Y and Dr G N’s diagnoses of Borderline Personality Disorder and Factitious Disorder.

In her closing submissions, the Applicant makes various attacks on these diagnoses in part with the assistance of opinion set out in Ms C S report. Neither Dr Y nor D G N were called as witnesses, and these criticisms were not put to them. In those circumstances, the prudent course is for me not to make positive findings that these health conditions are the source of the Applicant’s functional impairments, but note that this at least a realistic possibility on the evidence before me.
The evidence does not establish that the Applicant has completed treatment for a somatoform disorder, including Factitious Disorder or one related to Borderline Personality Disorder. The Applicant does submit that she consulted with Dr P Y and Dr G N from Jan 2020 to Feb 2021 with no benefit to her,[54] but the evidence I have set out above suggests that she disengaged from treatment when they sought to challenge her pain and immobility construct.
[54] Applicant’s closing submissions at [36]
If the Applicant’s functional impairments occur in the context of a mental health condition, including Borderline Personality Disorder and Factitious Disorder I cannot be satisfied that they are permanent by operation of Rules 5.4.and 5.6. That is because I could not be satisfied on the evidence before me that there are no known, available and appropriate evidence-based treatments that would be likely to remedy those impairments. And, at the least, in my opinion, these impairments require further medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent.
It the Applicant’s functional impairments are not derivative of Borderline Personality Disorder or Factitious Disorder the issue of their permanence remains. It cannot be known if these impairments are permanent in the absence of the causation and available treatments (if any) for the underlying health condition being established an exhausted.
In final conclusion, I therefore cannot be satisfied, as paragraph 34(1)(aa) requires, that the Applicant’s existing or requested supports are necessary to address a need that arises from an impairment in relation to which the Applicant meets the disability requirements or the early intervention requirements. None of those supports can be found to be reasonable and necessary for the purposes of s 33(2) in these circumstances, even if they were to satisfy each of the other s 34(1) criteria. There is therefore no utility in considering those other criteria.
I appreciate the significance of this conclusion in terms of the Applicant’s future management and care. To provide time for the Applicant to adjust to this decision, including by obtaining appropriate supports from the health and mental systems, I will set aside the decision under review and remit it to the CEO for reconsideration by 30 November 2025 with a direction that no supports can be included in the Applicant’s SoPS on and from that date.
To put the matter beyond doubt this decision is not a decision to revoke the Applicant’s status as a participant in the NDIS. That is not a matter that is before me for decision, and it is therefore not appropriate for me to make any comment in relation to that issue.
Order
For the foregoing reasons I order:
Pursuant to s 105(c) of the Administrative Review Tribunal Act 2024 (Cth) the decision of the Respondent dated 30 November 2020, as subsequently varied, is set aside and is remitted to the CEO for reconsideration by 30 November 2025 with a direction that the Applicant’s existing and requested supports are not necessary to address needs that arise from an in impairment in relation to which she meets the disability requirements or early intervention requirements.

134.    Date(s) of hearing:

135.    10, 11 and 12 December 2024, 5, 6 and 7 March 2025

136.    Solicitor for the Applicant

137.    Mr Stephen Hodges (10 – 12 December 2024)

138.

139.    Self-Represented (5 – 7 March 2025)

140.    Counsel for the Respondent:

141.    Ms Natalie Blok

142.    Solicitor for the Respondent:

143.    Ms Alice Dowell, Sparke Helmore Lawyers

144.

Support 1	TENS machines, TENS Machine Electrodes, TENS replacement cables
Support 2	Incontinence products to aid in toileting
Support 3	Digital Assistive Technology: · Annual app-based psychological pain management program subscription · Annual text to speech app subscription
Support 4	Assistance with Social and Community Participation: · Assistance to go outdoors each week, through a 2^nd worker on a short shift, to assist with transfers between bed and stretcher and for manoeuvring stretcher
Support 5	Assistive Technology: · Height adjustable bed and mattress · Change table (to be used as a wheeled stretcher) · Portable platform (adjoining a portable ramp)
Support 6	1 hour per month of dietician services
Support 7	3-year plan

134. Date(s) of hearing:	135. 10, 11 and 12 December 2024, 5, 6 and 7 March 2025
136. Solicitor for the Applicant	137. Mr Stephen Hodges (10 – 12 December 2024)
138.	139. Self-Represented (5 – 7 March 2025)
140. Counsel for the Respondent:	141. Ms Natalie Blok
142. Solicitor for the Respondent:	143. Ms Alice Dowell, Sparke Helmore Lawyers 144.