TZQP and CEO, National Disability Insurance Agency (NDIS)

[2025] ARTA 839

TZQP and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 839 (25 June 2025)

Applicant/s:  TZQP

Respondent:  CEO, National Disability Insurance Agency

Tribunal Number:                2024/2475

Tribunal:General Member N. Purcell

Place:Sydney

Date:25 June 2025

Decision:The Tribunal, pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) sets aside the decision under review and remits the matter for reconsideration with the following order:

12 hours of psychology support in relation to impairments arising from the Applicant’s Autism Spectrum Disorder (ASD) is not a reasonable and necessary support and is not to be approved for inclusion in her statement of participant supports (SOPS).1.   

Any additional psychology support is not reasonable and necessary and is not to be approved for inclusion in her SOPS. 2.   

The Applicant does not meet the requirements of ss 24 or 25 of the National Disability Insurance Scheme Act 2013 (Cth) in relation to impairments arising from Ehlers-Danlos Syndrome (EDS) – Hypermobility Subtype (hEDS) and the supports requested in relation to these impairments are not reasonable and necessary supports.3.

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

General Member N Purcell

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – Psychology support – Autism Spectrum Disorder (ASD) – Ehlers-Danlos Syndrome (EDS) – Hypermobility subtype (hEDS) – does not meet disability requirements in relation to impairments arising from ASD – does not meet disability or early intervention requirements in relation to hEDS – request for hEDS related supports is refused – permanency of impairments – conflicting and unreliable evidence – need for medical review – not satisfied what Applicant can and cannot do.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)

National Disability Insurance Scheme Act 2013 (Cth) ss 24, 25, 34(1)(aa)

National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth)

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024.

CASES

Beezley v Repatriation Commission [2015] FCAFC 165

Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607
Defa and The CEO, National Disability Insurance Agency (NDIS) [2024] ARTA 34
Esber v The Commonwealth (1992) 174 CLR 430
Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250
FTXB; Secretary, Department of Social Services and (Social services second review) [2024] AATA 3021
Garcia Albiol and National Disability Insurance Agency [2024] AATA 496
McGarrigle and National Disability Insurance Agency [2017] FCA 308
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v WRMF [2020] FCAFC 79
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) [1979] AATA 179; (1979) 2 ALD 634
Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565
Re Schwass and NDIA [2019] AATA 28
Richardson and National Disability Insurance Agency [2024] AATA 3505
Shi v Migration Agents Registration Authority (2008) 235 CLR 286

SECONDARY MATERIALS

Operational Guidelines – Reasonable and Necessary supports, 28 March 2025.

Our Guidelines – Becoming a participant – Applying to the NDIS, 10 December 2024.

Statement of Reasons

INTRODUCTION

1. The Applicant is 27-year-old woman who lives with her husband in a regional city of NSW. She met access to the scheme in June 2023, in relation to autism spectrum disorder (ASD) Level 2, however there appeared to be some irregularity with that process which is discussed further below. The Applicant was in an academically gifted class at school and has a bachelor’s degree in science. Since 2023, she has worked full-time as a national team manager for a large insurance company and previously worked for two other insurance companies after completing university in 2018.[1]

   [1] Applicant’s oral evidence.

   Decisions under review

2. On 19 January 2024, a delegate of the Chief Executive Officer (CEO) of the Respondent approved a Statement of Participant Supports (SOPS) for the period 19 January 2024 to 19 January 2027 for plan-managed funds comprising $16,470 of Core Supports and $23,351 of Capacity Building Supports. The Applicant requested an internal review of the decision pursuant to section 100(2) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). On 17 April 2024, a delegate of the CEO confirmed the original decision. On 18 April 2024, the Applicant applied to the Administrative Appeals Tribunal (AAT) (as it was then known) for external review of the decision pursuant to section 103 of the NDIS Act.[2]

   [2] T4 of JHB, p222.

3. The AAT was abolished on 13 October 2024 and the Administrative Review Tribunal (ART) began on the 14 October 2024. By virtue of the transitional arrangements, the Applicant’s application was automatically transferred to the ART.[3]

   [3] See Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).

   Issues in dispute

4. The Applicant seeks a total of 26 hours of psychology supports per year. She currently receives funding for 12 hours. She also receives 2 hours cleaning support per fortnight and has previously received funding for occupational therapy (OT).

5. As part of her application, the Applicant contends that impairments arising from an additional condition, namely Ehlers-Danlos Syndrome (EDS) – Hypermobility subtype (hEDS) meet the disability or early intervention criteria in sections 24 and/or 25 of the NDIS Act. The condition is described as a:

   lifelong connective tissue disorder characterised by generalised joint hypermobility, joint instability, pain and hyperextensible skin that can lead to joint subluxations, dislocations, sprains and other injuries. Individuals with this disorder can experience both acute and chronic pain that interferes with daily life due to joint instability.[4]

   [4] JHB1, p313.

6. If the Applicant meets the disability or early intervention criteria in respect of her physical impairments, she then seeks the following supports which she says are reasonable and necessary pursuant to section 34(1) of the NDIS Act and relevant rules:

   (a)52 hours of physiotherapy

   (b)Manual wheelchair and smart drive power assist - $26,047

   (c)Electric lift recliner - $3,800

   (d)Stair lift - $6,000

   (e)Sports wheelchair - $12,500

   (f)Rental equipment and repairs - $4,000

   (g)Home modifications consultation - $612

   (h)8 hours support worker assistance per week (4 hours at Saturday rate and 4 hours at Sunday rate) - $45,243

   (i)50 hours of Occupational Therapy (OT) per year

   (j)38 hours of house cleaning per year (2 hours per week)

   (k)House or yard maintenance totalling $2097 per year

   (l)Transport of $3,400 per year

   (m)Support Coordination level 2 totalling $5,007 per year.

   The hearing

7. The hearing was conducted by video over 6 days. The Applicant represented herself, having previously received legal advice and the assistance of a disability advocate. Ms Amy Douglas-Baker of Counsel represented the Respondent. The following witnesses gave oral evidence at the hearing:[5]

   (a)the Applicant

   (b)the Applicant’s husband

   (c)Occupational Therapist (OT), Ms CL

   (d)Provisional Psychologist, Ms IG

   (e)OT, Ms LB

   (f)Rheumatologist, Dr Herman Lau

   [5] The names of local treating practitioners have been altered where they might tend to reveal the identity of the Applicant.

8. The Tribunal will also refer to several other practitioners throughout this decision including:

   (a)Rheumatologist, Dr Tim Lu,

   (b)Rheumatologist and pain specialist, Dr Raj Anand

   (c)Orthopaedic surgeon, Dr Anthony Leong

   (d)OT, Ms LG

   (e)Physiotherapist, Mr JW

   (f)Physiotherapist, Ms AL

   (g)General Practitioner (GP), Dr ES

   (h)Psychiatrist, Dr RB

   (i)Previous Provisional Psychologist, Ms CO

9. In arriving at its decision, the Tribunal has considered all the written evidence provided in the joint hearing bundle (JHB1), two supplementary bundles containing summonsed documents (JHB2 and JHB3), the Respondent’s access records (JHB4) and the oral evidence given at the hearing. The following document was also admitted into evidence:

   (a)Invoice of wheelchair purchase dated 16 September 2023.[6]

   [6] Marked ‘E1’.

10. The Tribunal will refer to the evidence that is directly relevant to the determination of this matter, including an assessment of the weight that should be given to the evidence. The Tribunal’s findings are based on consideration of all the evidence. For reasons of brevity and clarity, not every piece of evidence is referenced in discussion of each issue or finding. It is inevitable that some important pieces of evidence appear in later sections of the decision, often in relation to another issue and/or in support of another finding.

    Role of the Tribunal

11. In reviewing the decision:

    (i)the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;[7] and

    [7] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J); Esber v The Commonwealth (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.

    (ii)the scope of the Tribunal’s jurisdiction is determined by reference to the scope of the internal reviewer’s powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.[8]

    [8] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].

12. The relevant provisions under the new Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.

    INTERLOCUTORY ISSUES

    Summons

13. On 13 February 2025, following a request from the Respondent on 13 January 2025, the Tribunal issued several summons to the Applicant’s past and present treating practitioners. On or about 10 March 2025, the summons material was released to the Applicant for first inspection. On 21 March 2025, the Applicant wrote to the Tribunal to advise that she did not oppose the release of the summons documents to the Respondent, except for the psychological records from Ms CO. On 24 March 2025, the Respondent wrote to the Tribunal indicating it did not press for release of those psychological records. The balance of documents were released to the Respondent shortly thereafter.

14. Further summons were issued to the Applicant’s other practitioners on 16 April 2024. These documents were released to the Applicant on the 30 April and 1 May 2025. A final set of documents, returned under the second summons, were released to the Applicant on the 5 May 2025, as discussed further below.[9]

    [9] The summons records are contained in JHB2 (110 pages) and JHB3 (488) pages.

15. On 5 May 2025, the fourth substantive day of hearing was unable to proceed because the Applicant’s provisional psychologist, Ms IG was unavailable to re-attend to complete her evidence. The Tribunal held a directions hearing in the morning to discuss several procedural matters with the parties. By this time, the Applicant had reviewed material produced under summons from several practitioners including documents from Ms IG which had been released to her on 30 April 2025. The Applicant indicated her objection to the release of some of these documents. The Tribunal noted there was additional material not yet released to the Applicant. The Applicant indicated she was confident in her ability to review and provide grounds for any objection later that day. These documents were released to the Applicant and the conclusion of the directions hearing.

16. For reasons of expediency, an interlocutory hearing was listed later that same day, in the afternoon, so that a decision could be made prior to the next substantive hearing day on 9 May 2025, when Ms IG would attend to complete her evidence. An OT, Ms LB, and Rheumatologist, Dr Herman Lau were also due to give oral evidence on 9 May 2025.

17. The Tribunal explained the legal principles informing the issuing of summons and inspection of documents, considered by Deputy President Forgie in Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565:

    [24] The fact that any applicant must face when applying for review of a decision in the Tribunal is that things that are personal to him or to her must be revealed if they are relevant to the issues raised by his or her application. This case provides a very clear example. Mr Panagiotou may well regard matters relating to his health as personal to him as do most, if not all, people. That does not make them irrelevant to the issues that must be decided on his application. Mr Panagiotou cannot control what the Tribunal regards as relevant and nor can TNT. Only the Tribunal can do that.

    [25] What the Tribunal regards as relevant when it is actually reviewing a decision may be different from what it regards as relevant when it issues a summons. When reviewing a decision, it must have regard only to evidence or material that it actually regards as relevant. When it is issuing a summons for documents or material, it requires only that they appear to have relevance to the issues to be decided. That is, it may issue a summons requiring their production if they can reasonably be expected to throw some light on the issues that will have to be decided in reviewing the decision.

18. The Tribunal then stood the matter down to review the materials and to allow the Applicant time to raise any objection. The Applicant provided written submissions via email prior to the resumption of proceedings in the afternoon, indicating she was content for most of the new material produced under summons to be released to the Respondent for inspection. However, she objected to the release of some documents from her psychologist and two older psychological reports from 2015 and 2016 contained in records produced by her GP’s clinic.

19. The Applicant’s reasons for objection can be summarised as follows:

    ·The release of full clinical records would be an unnecessary breach of privacy.

    ·Targeted questions would have been a more appropriate means of obtaining further information from a treating psychologist.

    ·Her treating psychologist had already provided a report outlining key concerns, limitations, strategies, interventions, and recommendations.

    ·The older reports are confidential and unrelated to the issues before the Tribunal.

    ·GP records date back to birth and these older records were irrelevant.

20. The Respondent submitted that the clinical records would assist the Tribunal to understand the nature and clinical content of the psychological sessions, noting a key question was whether the sessions were being used exclusively for capacity building purposes related to impairments arising from the Applicant’s ASD, or used to address other issues including childhood trauma. 

21. After reviewing the material, the Tribunal acknowledged to both parties that some of the material touched on very private and sensitive detail. The Tribunal also decided, that whilst involving matters that are sensitive to the Applicant, the records appeared to have relevance to the issues for determination by the Tribunal, particularly the request for increased psychology hours. For this reason, the Tribunal determined the records should be released to the Respondent.

22. The Tribunal applied one minor redaction to a clinical note out of an abundance of caution regarding possible legal professional privilege. The Tribunal indicated that had the GP records been sequential, it would have elected to remove much older records however time pressures did not allow such an exacting process. The Applicant was reassured of the Respondent’s legal and ethical obligations in relation to all documents and that only relevant material would be considered by the Tribunal when making its decision.

    Independent Medical Examination or Functional Capacity Assessment

23. At a telephone directions hearing on 18 October 2024, the Respondent indicated its intention to seek an independent functional capacity assessment (FCA) from an OT. At this hearing, the Applicant indicated her clear preference for the matter to be heard and determined as quickly as possible. It was determined that at least 3 functional capacity assessment reports were already in existence from 3 separate OTs.

24. On this basis, and in contemplation of the likely delays associated with the Respondent obtaining an independent FCA, the Tribunal decided to list the matter for hearing and invited the Respondent to address any concerns through the cross-examination process.

25. For reasons which will become apparent, towards the end of the hearing, the Tribunal raised the question of whether an independent medical examination or FCA would assist the Tribunal. The Applicant did not express a strong view either way. The Tribunal accepts the Respondent’s submission that such an assessment would cause further delay and that it was not appropriate for such an assessment to be conducted at the conclusion of a hearing.  

26. Had the Tribunal been aware of the issues with the assessments conducted by the Applicant’s 3 OTs, it would have permitted time for an independent FCA and report. While such an assessment and report might have helped to answer certain questions or address gaps in evidence, the Tribunal notes that the Applicant filed a significant amount of material from the various practitioners who she chose to engage with, utilising funding provided by the Respondent for at least some of the OT assessments. The Tribunal has made its decision based on the available material before it.

    RELEVANT LAW[10]

    [10] Explanation of the relevant law has been set out in previous decisions and is repeated here.

27. The NDIS was established under the NDIS Act. Its objectives are set out in section 3 and its general principles guiding actions taken under the NDIS Act are set out in section 4.

    The Amending Act

28. The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth) came into force on 3 October 2024, changing several key provisions including sections 34 and the introduction of a new section 10.

29. Subitem 129(2) of Schedule 1 of the Amending Act provides that if a statement of participant supports is approved or varied on or after 3 October 2024, the amendments apply irrespective of whether the Applicant’s plan came into effect before, or on or after commencement. Therefore, section 34 as amended applies to the Applicant’s statement of participant supports and must be considered by the Tribunal.

30. The Applicant’s request for external review by the Tribunal concerns whether additional psychology hours are reasonable and necessary pursuant to section 34(1) of the Act. As part of this application, she also requests several new supports arising from impairments connected to her hEDS diagnosis. By reason of the introduction of section 34(1)(aa), the Tribunal must consider whether the Applicant’s hEDS impairments also meet the disability or early intervention requirements under sections 24 or 25 of the Act.

1. A question arises whether the Tribunal should apply the provisions of sections 24 or 25 of the NDIS Act that applied at the time the application was made to the Tribunal, or the Act as amended.

2. Under item 126 of Schedule 1 to the Amending Act, the amendments to section 24 and 25 apply to access requests that are made to the NDIA by a prospective participant on or after 3 October 2024. This means these amendments will only apply to access matters that are before the Tribunal if the prospective participant made an access request on or after 3 October 2024.

3. The Applicant’s request for review cannot be properly considered an access request because she is already a participant. As the pathway to considering the provisions of sections 24 and 25 of the Act are through section 34(1)(aa), the Tribunal considers that the provisions of the Amending Act apply, including the amended operational guidelines.

   Disability and Early Intervention Criteria

4. Section 24 of the Act states:

   (1) A person meets the disability requirements if:

   (a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

   (b) the impairment or impairments are, or are likely to be, permanent; and

   (c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

   (i) communication;

   (ii) social interaction;

   (iii) learning;

   (iv) mobility;

   (v) self‑care;

   (vi) self‑management; and

   (d) the impairment or impairments affect the person’s capacity for social or economic participation; and

   (e) the person is likely to require 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 the person’s lifetime, despite the variation.

   (3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require NDIS supports under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.

   (4) Subsection (3) does not limit subsection (2).

   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).

5. If the Applicant does not meet the disability requirements, the Tribunal must consider whether she meets the early intervention requirements set out in section 25 of the Act which relevantly states:

   (1) A person meets the early intervention 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 developmental delay; and

   (b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and

   (c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

   (i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or

   (ii) preventing the deterioration of such functional capacity; or

   (iii) improving such functional capacity; or

   (iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer; 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).

6. Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that the NDIS rules may prescribe criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules in the Applicant’s case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’).

7. In relation to the question of permanency of an impairment, the Access Rules state:

   5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

   5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.

   5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

   5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

8. In relation to substantially reduced functional capacity the Access Rules provide:

   5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:

   (a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

   (b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

   (c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

9. The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal, unless there is good reason not to do so.[11] The relevant Operational Guidelines at time of decision include Becoming a participant – Applying to the NDIS (10 December 2024)(the Access Guideline) and Reasonable and Necessary supports (28 March 2025).

   [11] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].

10. The Tribunal notes that in Mulligan,[12] Mortimer J held that the legislation pertaining to the access criteria requires “a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted”.[13] The Full Court of the Federal Court of Australia in Foster also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[14]

    [12] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’) at [55].

    [13] Mulligan at [55].

    [14] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’) at [44].

    Supports – section 34(1) and relevant rules

11. A participant’s plan must include a statement of participant supports (SOPS), approved in accordance with section 33 of the NDIS Act, and any relevant rules.

12. Further, section 34(1) of the NDIS Act provides:

    (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 section 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 the 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).

13. The Tribunal must be positively satisfied about each of the matters set out in section 34(1) of the Act.[15] The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[16]

    [15] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [202].

    [16] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).

14. The Tribunal must consider any relevant rules including the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘the Supports Rules’), the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) (‘the Transitional Supports Rules’) and the National Disability Insurance Scheme (Getting the NDIS back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (‘the Miscellaneous Transitional Rules’).

    EVIDENCE

    Applicant’s evidence

15. The Applicant told the Tribunal that she lives with her husband in a double-storey townhouse which they bought in early 2023. They recently got a dog and occasionally look after small animals on a short-term basis as part of volunteer work with a wildlife agency.[17]

    [17] Applicant’s oral evidence.

16. The Applicant works as a national team manager for a large insurance company with case managers reporting to her from across the country.[18] She has knowledge of relevant workers’ compensation legislation and provides technical support for complex workers compensation claims including litigated matters. She also has a role in audit and compliance. Industry mentors told the Applicant she needed to get some experience managing people to progress her career which led to her applying for her current role. The Applicant reported she has difficulty managing people; however, her manager provides additional support, for example, when she needs to have difficult conversations with staff.

    I have difficulty answering questions on the spot, so I go into all of my conversations with my team with a pre prepared script and if it was to go off script I’d have a lot of trouble actually addressing what they need.[19]

    [18] Applicant’s oral evidence.

    [19] Applicant’s oral evidence.

17. The Applicant confirmed that she sought a diagnosis for ASD in 2023. She was also diagnosed with ADHD at this time. She had previously been treated for anxiety when she was younger and believes her autism symptoms were misdiagnosed as anxiety.

    So growing up, I didn’t have any means to get an ASD diagnosis, but it was when I moved out of living with my dad and into my own house, and I felt like I could look into it myself. And I realized that there was a lot of similarities in what I was experiencing compared to what autistic people experience. And I just wanted to find out whether that was correct… I was really struggling at the time with becoming overwhelmed with lots of things, like from a sensory perspective or communication, and I wasn’t coping well with all of that overwhelm.[20]

    [20] Applicant’s oral evidence.

18. The Applicant told the Tribunal she met her husband online and commenced a relationship with him about one or two months after first meeting. They were married last year and have been together for about 4 years. The Husband later explained the Applicant had a previous boyfriend who introduced her to snowboarding.[21]

    [21] Applicant’s and Husband’s oral evidence.

19. The Applicant was unsure how she met the disability requirements with respect to the relevant activity or functional domain(s) under section 24(1)(c). The Respondent was also unable to confirm which activity involved substantially reduced functional capacity, which will be discussed further below.

    hEDS diagnosis

20. The Applicant told the Tribunal she was referred to an orthopaedic surgeon in 2023 by her General Practitioner (GP) Dr ES because of joint instability and left knee and hip pain. She consulted with Dr Anthony Leong, an orthopaedic surgeon, in August 2023.[22] The Applicant explained that Dr Leong concluded there were no structural or acute conditions causing the instability problems and thought it could be linked to rheumatoid arthritis, hypermobility syndrome or EDS.

    [22] See also Dr Leong’s letter dated 1 September 2023 at JHB3, p143.

21. Dr Leong’s letter to Dr ES dated 18 August 2023 noted “she was a long distance runner but despite stopping this and having 3 months of physiotherapy working on strengthening she continues to have left sided knee and hip pain… She can usually only last 15-20 minutes [of walking] before having to sit down”.[23]

    [23] JHB3, p189.

22. The Applicant then consulted with rheumatologist, Dr Tim Lu. He wrote to Dr Leong on 31 October 2023 advising that the Applicant has hypermobile joints and could be classified as classic Ehlers Danlos Syndrome (EDS), agreeing with Dr Leong that the Applicant “is suffering from arthralgia and myalgia”. The Tribunal understands these terms to mean joint pain and muscle pain. Dr Lu reported she is “otherwise well systemically and reports no inflammatory swelling in the peripheral joints or autoimmune symptoms”, “hand function and grip strength were normal”. The Applicant had told him she was attending the gym 3 to 4 times per week. In terms of management, Dr Lu advised her to “avoid high impact-exercises” and suggested aqua aerobics and hydrotherapy as appropriate forms of exercise.[24] The Tribunal observes Dr Lu did not mention permanent impairments or the need for NDIS support.

    [24] See Letter from Dr Lu to Dr Leong dated 31 October 2023 at JHB3, p3.

23. The Applicant described how she responded at the time:

    So I started reading into it then and then when I got my formal diagnosis, I read into it some more just so that I could understand more about the condition because I was told that it was something that I’m always going to need to manage.[25]

    [25] Applicant’s oral evidence.

24. The Applicant then consulted with two EDS specialists. She first saw Rheumatologist and pain medicine specialist Dr Raja Anand on 30 November 2023. The Applicant claimed Dr Anand did not pay a lot of attention to the history she provided. In his letter dated 13 December 2023, Dr Anand noted that the Applicant was referred to him “for further management of hypermobile Ehler Danlos Syndrome in the context of chronic pain right ankle, left knee and hip”. He opined the Applicant “clearly faces a number of ongoing physical and psychological challenges leading to her predicament” and that she “would benefit from physical therapies and mobility aids to help maintain her general function and independence”.[26]

    [26] See BJC3 of JHB2, p7-8.

25. Dr Anand indicated a comprehensive assessment was required and provided a referral to two physiotherapists which included a suggestion for:

    assessment of physical capacity, tolerance, kinesiophobia, followed by delivering a tailored pain education and developing an activity plan with aim to functional restoration, SMART goal setting, improving physical tolerances, upgrading physical activity and limit avoidant behaviours and exercise / activity plan to current physiotherapist.[27]

    [27] JHB2, p8. The Tribunal understands the term ‘kinesiophobia’ to refer to the fear of movement due to injury or pain.

26. Although Dr Anand recommended interventions to improve the Applicant’s physical tolerance and upgrade her physical activity, he also wrote in support of the Applicant’s request for NDIS funding, stating: “The underlying medical condition is permanent and has been stabilised. The disability impacts her function in a persistent and permanent manner with fluctuating functional status”.[28] Dr Anand did not elaborate on how the ‘disability impacts her function’ or identify specific impairments except for clear concerns about pain. Dr Anand also wrote:

    A more detailed letter will follow, along with recommended / suggested self-reading material to enhance understanding of the underlying mechanisms of chronic pain / fatigue and some helpful management strategies.[29]

    [28] JHB2, p8.

    [29] BJC3 of JHB2, p7.

27. The Applicant indicates she followed up with Dr Anand for many months but did not obtain a further report from him.[30]

    [30] BJC3 of JHB2, p7.

1. The Applicant then sought a further and final opinion from rheumatologist Dr Herman Lau on 14 December 2023. Dr Lau wrote that the Applicant “has subluxation of her shoulder and her hip but not complete dislocation. She has features of hypermobility syndrome and she fulfils the criteria for hypermobility EDS”. Dr Lau indicated the Applicant “has a degree of joint pain which is manageable with paracetamol and anti-inflammatory. She does not want to go onto stronger analgesia”. He said, “joint discomfort and instability does affect her day-to-day activity”, although Dr Lau he did not describe how. Notwithstanding this, Dr Lau offered to draft a medical report to help with her NDIS application.[31]

   [31] BJC2 of JHB2, p5.

2. The Applicant told the Tribunal she only met with Dr Lau once in person on 14 December 2023, with other consultations conducted via telehealth. The Applicant also confirmed in her oral evidence that she provided Dr Lau with an undated treatment summary document which she prepared. The document provides an overview of treatments the Applicant says she underwent between 2014 and 2024.[32]  The Applicant said:

   And Dr Lau was able to give me some guidance on what sort of management I would need and also gave me some information about things that I can and shouldn’t be doing. Like Doctor Tim Lu as well, for example, said that I should be avoiding high impact activities, for example.[33]

   [32] T1H of JHB1, p56.

   [33] Applicant’s oral evidence.

3. The Applicant gave evidence that Dr Meghan Dares performed ankle surgery shortly prior to her consult with Dr Anand, which had previously caused acute pain.[34] The Applicant indicated the surgery had resolved her right-ankle pain and Dr Anand’s reference to chronic ankle pain in his letter dated 13 December 2023 was incorrect.[35]

   [34] See JV of JHB3, p457-460 confirming surgery occurred in October 2023.

   [35] Applicant’s oral evidence.

   hEDS impairments and impact on functional capacity

4. The Applicant provided an undated statement of lived experience (first statement).[36] She confirmed in her oral evidence that this statement was prepared sometime in early 2024 because it was submitted with her application for review to the AAT in April 2024. She confirmed that Dr Lau had asked her to prepare a statement because “he knew that it was an important part in lodging the application, but he didn’t help me write it”. The Applicant indicated she provided a copy of this statement to Dr Lau in early 2024 but couldn’t remember exactly when.[37]

   [36] See T1G of JHB1, p53.

   [37] Applicant’s oral evidence.

5. The Applicant also filed a statement dated 11 September 2024 (second statement) which utilised a template provided by a disability advocate.[38] The Applicant was given an opportunity to review and correct any inaccuracies in her statements at the commencement of her oral evidence. She indicated she wanted the Tribunal to rely on her second statement as it was more up to date in terms of her functional capacity.

   First Statement – early 2024

   [38] See T2 of JHB1, p208.

6. In her first statement, the Applicant stated:

   I experience daily subluxations and joint instability, skin fragility and other Ehlers Danlos related impairments. In particular, my left hip and knee, fingers, bilateral wrists and bilateral feet/ankles have shown significant instability with impaired function since childhood.[39]

   [39] T1G of JHB1, p53.

7. The Applicant indicated the following with respect to her functional capacity in relation to mobilising:

   (a)has a standing tolerance of 2-3 minutes.

   (b)restricts her travel up and down stairs in her home to 1-2 times per day because “repeated stair usage results in a temporary flare up of symptoms and subsequent reduced capacity”.

   (c)walks within a range of 500-800 meters at a time, after which she requires a period of seated rest for 15 minutes.

   (d)in a good week, can walk up to 2km on a flat surface or as little as 100m in a bad week.

   (e)uses a wheelchair for activities that take more than 10 minutes, such as shopping.

   (f)plays tennis once per week for one hour, with a seated break every 10 minutes.

   (g)can snowboard and requires breaks approximately every 10 minutes.[40]

   [40] T1G of JHB1, p53-54.

8. The Applicant indicated the following in relation to self-care tasks:

   (a)Because of daily subluxations and joint instability, she experiences “consistent difficulty with most day-to-day tasks” including cooking, food preparation, cleaning, shopping, home maintenance and self-care activities.

   (b)takes baths 30-40% of the time to reduce physical strain but trialled a shower chair which improved independence.

   (c)Putting on enclosed shoes strains her fingers (“hyperextension or subluxation occurs on most occasions”).[41]

   (d)She relies on her partner to bring her food and drink throughout the day from the kitchen located downstairs.[42]

   [41] JHB1, p208-213.

   [42] JHB1, p211.

9. The Applicant explained she had started using a low-cost manual, foldable wheelchair in the past 12 months for accessing the community but relies on her husband to push her due to her limited capacity to self-propel.[43]

   [43] T1G of JHB1, p53-54.

10. Records produced under summons indicate the Applicant told her physiotherapist on 29 May 2024 that she “went on a trip interstate, did a lot of walking with tape on. Knee seemed ok when walking but was very sore during the evening”. She complained of low back pain and patellofemoral pain.[44]

    [44] JHB2, p52.

11. On the 4 July 2024, the Applicant also told her physiotherapist that her back was feeling much better after getting a new work chair and she could “sit for long periods at work with no pain”. The Applicant informed him that she had been to the snow over the weekend and “only started to become uncomfortable towards the end of the drive (~5hrs), settled quickly when got out of the car and was fine all weekend”. She indicated her knee was still bothering her when standing and doing exercise.[45]

    Second statement – 11 September 2024

    [45] JHB2, p54.

12. The Applicant indicated the following with respect to her functional capacity in relation to mobilising:

    (a)can walk 500 meters on a flat, sealed surface, followed by 15-20 minutes of rest.

    (b)cannot walk more than 1-1.5km for the entire day.

    (c)can only walk between 50 and 200 metres on a bad day.

    (d)can stand for 2-3 minutes (or 5 minutes dynamic standing) but less than 1 minute on a bad day.

    (e)drives up to 30 minutes on an average day.

    (f)uses public transport, but due to “limited standing / walking capacity and weakness” relies on partner to accompany her. “If I am travelling with my wheelchair, I require assistance to be pushed…” [46]  

    [46] T2 of JHB1, p208-209.

13. The Applicant further explained:

    I use a wheelchair for most occasions where I would need to be walking or standing for more than a few minutes. Without my wheelchair, I am significantly impaired in my ability to access the community, attend appointments, travel or socialise… A manual wheelchair has been recommended by my treating specialist, Dr Lau, and has been recommended through various engaged Occupational Therapists. My current wheelchair is not prescribed, as it was purchased privately through an online store. I have recently completed a wheelchair assessment with my OT, and a manual wheelchair with power assist has been prescribed, trialled and quoted.[47]

    [47] T2 of JHB, p209.

14. The Applicant indicated the following with respect to her functional capacity in relation to self-care:

    (a)Partner usually assists her to shower (“passing me shampoo bottles, opening containers, and assistance for me to get down to and up from my shower chair”.)

    (b)Has a history of falls in the shower and bath.

    (c)Requires partner to help her dress including buttons, zippers and taking clothes off hangers.

    (d)Requires partner to “heat style” or blow dry her hair due to weakness and poor grip.

    (e)Requires partner to take her to “most medical appointments”.

    (f)Cannot cut her own food.

    (g)Cannot open packaging or drinks.

    (h)Cannot open the mailbox.[48]

    [48] T2 of JHB.

15. The Applicant said when in the community, she relies on her partner to push her wheelchair, carry her belongings/bag, speak on her behalf in overwhelming situations and provide continued assistance with activities such as dressing, navigating uneven surfaces and grooming. At home, her partner completes all meal preparation, cooking, cleaning and most of the gardening.[49] She indicated due to impaired fine motor skills, she has difficulty using cutlery and cannot use a knife or cooking utensils.

    [49] T2 of JHB1, p210.

16. The Tribunal observes this statement did not mention snowboarding or tennis, which will be discussed further below.

    Oral evidence

17. In her oral evidence, the Applicant told the Tribunal she played soccer, netball, nippers/surf lifesaving, tennis, and swimming as a child. She did representative sport for cross country running, swimming and athletics. She also played in local tennis competitions until she was 16 or 17 years old. At about that time, the Applicant explained that she restricted herself to doubles tennis because she was experiencing joint instability and relied on her tennis partner to run for the ball.[50]

    [50] Applicant’s oral evidence.

18. The Applicant explained that her parents took her to see a GP when she was 11 or 12 due to issues with her joints. She indicated that her parents were quite dismissive of her concerns because they wanted her to continue playing sport. The Applicant described ‘band-aid’ fixes at the time including rubbing ointments into the joint, strapping the knees, ankles and wrists, and using braces to assist with sport. In relation to the feeling of instability in her joints, the Applicant said, “it started with a clicking sensation, like a quite uncomfortable clicking sensation”.[51]

    [51] Applicant’s oral evidence.

19. In relation to her current function, the Applicant explained the following in relation to her standing tolerance:

    And so the first thing that I notice my body do is it will rock to one side, it will rock to my left side and it will put a lot of strain and weight on my left knee and hip. Within that period of time, my left hip will usually partially or full dislocate and my left knee will become wobbly. So I’m not actually able to sustain the standing for longer periods than that because I don’t have, I don’t have the strength to maintain that position. So I need to go and sit down.[52]

    [52] Applicant’s oral evidence.

20. She also described muscle fatigue because “the muscles are having to work overtime to try and stabilize those joints”. The Applicant told the Tribunal that her standing tolerance has further reduced in the past 6 months and currently she would usually only be able to stand for 1 – 2 minutes, unless she was having a particularly good day, in which case she might be able to stand for 3 minutes maximum. She also explained that she can now only walk 3 to 5 minutes.[53]

    [53] Applicant’s oral evidence.

21. The Applicant indicated she learnt how to snowboard when she was 18 and initially went to the snow a couple of times per year. The Tribunal observes this occurred around the same time that the Applicant claims to have stopped playing singles tennis due to joint instability.[54] A report dated 6 April 2023 from provisional psychologist Ms CO, noted the Applicant was rock climbing at the time.[55]

    [54] Applicant’s oral evidence.

    [55] JHB1, p267.

22. About 4 years ago, the Applicant indicated she was snowboarding 4 or 5 times per year for a couple of days during each trip to the snow. In the last 2 years, the Applicant estimated about 3 trips to the snow per year. In response to questions from Counsel, the Applicant confirmed she had snowboarded in Utah (United States) and Whistler (Canada), most recently in February 2024. On that trip, the Applicant and her husband stayed at Whistler for 8 days and went snowboarding on 6 of those days, though not always full days. She took the wheelchair with her to Whistler.[56]

    [56] Applicant’s oral evidence.

23. The Applicant told the Tribunal she can now only snowboard for about 2 minutes at a time which is down from the 10 minutes in her first statement. She mainly snowboards down green runs (beginner) and blue runs (intermediate) if there is no other option, and then rests for 5 or 10 minutes after every 2 minutes of snowboarding. The Applicant said the runs can last anywhere from 3 minutes to 15-20 minutes. “[I]f it’s later in the day we’ll often go inside and rest for like half an hour or longer”. In the last 2 years, she has used step-on bindings which means she can step onto the board and her husband clicks the safety device which joins the snowboard to her boot.  Her husband carries her snowboard. She uses ankle and wrist guards and bum pads, to provide protection from falls. The Applicant has not purchased a snow pass this year because she’s not sure she “will be able to do it in any capacity”.[57]

    [57] Applicant’s oral evidence.

24. The Applicant confirmed she bought a cheap wheelchair online. She later provided a receipt confirming it was purchased on 16 September 2023, over a month before her ankle surgery with Dr Dares on 23 October 2023.[58]  The following exchange took place between Counsel and the Applicant

    [58] E1. See also JV of JHB3, p460.

    Counsel:Did anyone recommend to you 18 months ago that you use a wheelchair?

    Applicant:No, there was a conversation with Dr Dare about my wrists not being able to handle the weight of crutches after I got that [ankle] surgery. That’s a time where I started using a wheelchair more because I couldn’t hold my weight on the crutches. And since then and since getting my EDS diagnosis, then it became recommended that I keep using that wheelchair and eventually get something that’s more suitable.

    Counsel:So is this the case, that in lieu of crutches, Dr Dare suggested that you use a wheelchair?

    Applicant:Yes.

    Counsel:Were you using a wheelchair before you had surgery under Dr Dare?

    Applicant:The timing of it, I think we had just bought it and I was using it for long days, like if we were at the zoo or going to an aquarium or like a, a big shopping trip, something like that. I was already using the wheelchair for those long days because I couldn’t get through it otherwise. And then when I had that surgery, I had to use it more often because I wasn’t weight bearing. And then once I recovered from that surgery, I went back to only using the wheelchair for like long distances. But over the last 18 months, I’ve had to increase how much I use it. And now I use it almost every time I leave the house.

    Counsel:So, so correct me if I’m wrong, September 2023 is 18 months ago. Do you agree with that?

    Applicant:Yep.

    Counsel:And no one recommended you start using a wheelchair in September 2023.

    Applicant:No

    …

    Counsel:Leave aside Dr Dare, who first recommend you use a wheelchair?

    Applicant:Doctor Anand.

    Counsel:Is that something he said in his report? Are you able to help with that?

    Applicant:I can have a look.

    Counsel:This is the rheumatologist, is that right, [Dr] Anand?

    Applicant:Yes, that’s the first rheumatologist. He’s made a comment that says she would benefit from physical therapies and mobility aids to help maintain her general function and independence.

    Counsel:But I can’t see any specific mention of the wheelchair?

    Applicant:But this is his shortened version of the report.

25. As discussed above, Dr Anand did not provide a further report despite the Applicant repeatedly requesting a further report.

26. Documents obtained under summons reveal that on 10 November 2023, approximately 2 weeks after her ankle surgery, a post-operative musculoskeletal examination ultrasound report noted “patient is not currently experiencing any concerns”.[59] On the 10 November 2023, the Applicant was advised to “continue to sleep in boot for another week, use crutches for community ambulation, no crutches indoors”.[60] On the 24 November 2023, a consult note stated the Applicant “was compliant wearing boot”, “normal gait pattern”, “wean out of boot over the next week, slowly increase walking distance/duration… no run/jump yet”.[61]

    [59] JV of JHB3, p451.

    [60] JV of JHB3, p458.

    [61] JV of JHB3, p457-8.

27. Consult notes on 8 December 2023 note the following:

    Returned to normal shoes

    Still feels like R ankle is unsteady/weak

    Still experiencing a mild limp with ambulation

    R scar sensitivity

    Returned to swimming with flippers

    Going snorkelling over the weekend.[62]

    [62] JV of JHB3, p457.

28. On 14 December 2023, Dr Dares wrote to GP, Dr ES advising the Applicant had presented for a follow-up consultation 7-8 weeks post-surgery. She noted:

    -Main complaint is minor sensitivity and pain in the surgical site when taking shoes on and off.

    -Apart from this, recovery has been good with no other issues reported.

    -Plans to go snowboarding in about a month.[63]

    [63] JV of JHB1, p453.

29. There was no indication in the material obtained from Dr Dares of any difficulty using crutches during the post-operative period nor was there any mention of the Applicant using a wheelchair. The Tribunal observes that at this point in her evidence, the Applicant had nominated Dr Lau, Dr Dares and Dr Anand as medical practitioners who had recommended that she start using a wheelchair. However, the Tribunal is not satisfied that a medical practitioner ever recommended the Applicant commence using a wheelchair. Further, in circumstances where a decision is made to use a wheelchair in an ongoing and regular manner, the Tribunal would expect to see clear clinical assessment and justification. This causes the Tribunal to have concerns about the reliability of the Applicant’s evidence.

30. The Applicant obtained a report from Ms LG, a senior OT dated 24 January 2024.[64] The Applicant confirmed that Ms LG did not conduct a functional assessment in her home. It is not apparent from Ms LG’s report that she conducted any functional observations of the Applicant beyond meeting her in person.[65] Ms LG reported one of the Applicant’s goals is to “independently access the community in an appropriate mobility device”.[66] This report indicated the Applicant has resided in her townhouse for 3 years. In fact, the double-storey property was only purchased about 1 year prior.[67]

    [64] T1C of JHB1, p33.

    [65] T1A of JHB1.

    [66] T1C of JHB1, p35.

    [67] T1C of JHB1, p35.

31. Ms LG completed three standardised assessments related to pain, all of which relied on self-reporting. Ms LG reported that the Applicant’s responses to the Pain Disability Index (questions) indicate that her “pain symptoms are having a significant impact on her recreation activities” and moderate impact on family and home responsibilities, social activities and occupation.[68] However, the Applicant did not report significant pain to Dr Lau at the time of her consultation with him, the month prior in December 2023.

    [68] T1C of JHB1, p38.

32. Ms LG recommended an assessment of mobility needs including appropriate wheelchair assistive technology to facilitate independent community access.[69] It is unclear to the Tribunal how or why Ms LG made this recommendation without first conducting a functional assessment of the Applicant herself.

    [69] T1C of JHB1, p42.

33. An earlier report from Ms LG, completed on 21 September 2023 reports the following with respect to the Applicant’s functional capacity:

    (a)No falls history.

    (b)Normal gait pattern.

    (c)Can negotiate stairs however the left knee/hip hurts and she relies on handrail to assist.

    (d)Uses wheelchair when required to walk long distances, for example, at the zoo, museums or theme park.

    (e)Independent with all transfers.

    (f)Showers every evening and washes hair every second night.

    (g)Completes all dressing tasks.

    (h)No incontinence issues.

    (i)Independent with eating.

    (j)Able to cook and taught partner to cook who now does all cooking.[70]

    [70] T1A of JHB1, p9.

1. This was a complex case because whilst the Applicant claimed to experience severe impairments such as daily hip dislocations and a very dramatic reduction in functional capacity, the reasons for this remained largely opaque.

2. As discussed further below, the Applicant has not persuaded or satisfied the Tribunal on the evidence before it that the claimed physical impairments result in substantially reduced functional capacity under the domains of mobility and self-care. This lack of persuasion is largely attributable to 3 key reasons including:

   (a)Inconsistencies with evidence and behaviour

   (b)Limitations of functional capacity assessments

   (c)An unexplained dramatic reduction in functional capacity without supporting medical evidence or explanation.

3. Simply put, the Tribunal is not sure why the rapid reduction in functional capacity has occurred, if at all, and what the Applicant’s functional capacity is at this time.

   Inconsistencies with evidence and behaviour

4. In September 2023, Ms LG opined that based on the Applicant’s completion of the Care and Needs Scale (CANS), she requires up to 11 hours of support per day.[237] This conclusion is difficult to reconcile with the Applicant’s ability at the time to work full-time (mostly from home), drive a car, walk 2km, independently complete transfers, not have a history of falls, have a normal gait pattern, and complete most self-care tasks.[238] 

   [237] T1A of JHB1, p16.

   [238] T1A of JHB1, p22.

5. The use of one’s hands is key to performing many, if not most, self-care tasks. However, the evidence regarding the Applicant’s hand function was often inconsistent and contradictory. For example, despite the Applicant’s reported difficulty holding a pen due to reduced grip strength and/or hyper-extension in Ms LC’s report,[239] Ms LG noted in her report that the Applicant “hold (sic) pencil so tightly its hard to use object”.[240] Dr Lu reported the Applicant’s grip strength and hand function as normal.[241] Ms LB reported issues with the Applicant’s grip strength but did not test it. The Applicant and her husband told the Tribunal that she plays weekly wheelchair tennis. The Applicant explained she could hold and curl a 2.5kg dumbbell. The husband told the Tribunal the Applicant couldn’t carry the weight of a plate with food on it from the kitchen to the dining room table. Ms LG said the Applicant “reports she is physically able to complete all dressing tasks” and independently brushes her teeth twice a day.[242] In her second statement, the Applicant said she needs assistance with buttons and zippers “due to poor fine motor skills and pinch weakness”.[243] The Applicant reportedly doesn’t like the noise associated with “getting out and using pots/pans” and “panics about burning herself due to poor concentration”,[244] suggesting the Applicant can cook, albeit with some difficulty. However, the Applicant told the Tribunal she can’t cook. In her second statement, the Applicant said she does not have the ability to cut her food. Further, she cannot use a knife or cooking utensils or hold pots and pans due to fine motor skills and muscle weakness.[245] However, she told the Tribunal she can use a pair of gardening secateurs to trim small plants. Ms CL reported the Applicant can self-propel her wheelchair for 5 to 10 minutes with 30 seconds of rest every minute.[246] The Applicant works a full-time job, mainly from home, and was observed to send emails to the Tribunal without apparent difficulty. She is independent with toileting,[247] with no suggestion that she requires help to wipe her bottom.

   [239] A10 of JHB1, p324.

   [240] T1A of JHB1, p19.

   [241] JHB3, p3.

   [242] T1A of JHB1, p23.

   [243] JHB1, p211.

   [244] T1A of JHB1, p25. The Tribunal did not observe issues with poor concentration over 6 days of hearing, with the Applicant able to direct both the Tribunal and Counsel to relevant documents on several occasions.

   [245] JHB1, p211.

   [246] JHB1, p321

   [247] JHB1, p24.

6. The Applicant told Ms CL that she struggles to remain seated for extended periods due to joint pain and “frequently needs to reposition while sitting”.[248] This was not observed by the Tribunal over 6 days of hearing, with the Applicant seated for periods of between 2 to 3 hours without any request for a break.

   [248] JHB1, p319.

7. Ms CL reported that the Applicant has “impaired balance and coordination, resulting in falls approximately once a month”.[249] In a separate part of her report, Ms CL writes the Applicant “experiences multiple falls daily and has sustained minor injuries”.[250] Ms LG wrote “no reported falls”.[251] In her second statement, the Applicant indicated that if she exceeded her walking capacity of 1000-1500 meters she would experience “significant symptom exacerbation, injury and falls”.[252] She also claimed to have “a history of falls in the shower and bath” and falls on stairs.[253] The husband indicated she falls often, including out in public.[254] However, his description of the Applicant falling in the shower prior to the hearing using present tense was not persuasive. The Applicant’s physiotherapists did not mention falls in their reports nor was there any mention of falls in the Applicant’s GP records obtained under summons. Dr Lau did not mention falls in his letters.

   [249] A10 of JHB1, p330.

   [250] JHB1, p319.

   [251] JHB1, p22.

   [252] JHB1, p208.

   [253] JHB1, p211.

   [254] JHB1, p214 and 221.

8. There were several inconsistencies in reports regarding the Applicant’s gait, which are described at [134] and her experience of pain at [273] above. There was no medical or allied health evidence recommending the use of a wheelchair prior to the Applicant purchasing a wheelchair and electing to use it, as discussed at [81 – 86].

9. The Applicant gave detailed oral evidence to the Tribunal about what happens when her hip dislocates multiple times per day, at [92]. She had not reported this to Dr Lau. When the Tribunal read to Dr Lau the Applicant’s evidence, he seemed to doubt whether the Applicant was experiencing a full dislocation, suggesting it might be a more severe subluxation. He indicated a full dislocation was incredibly painful and would ordinarily require attendance at an emergency department. The Applicant gave evidence that when a full dislocation occurs, her left hip protrudes, distinguishing it from partial dislocation or subluxations. The Applicant said it was very uncomfortable however, she did not describe it as painful. On her description, it required a relatively brief moment of sitting down or using a step to get it back into the socket, without third-party assistance. These subluxations and dislocations were not reported to occur while snowboarding. Despite her evidence that they occur after a few minutes of standing, no practitioner observed a subluxation or dislocation or described one in any detail. Her husband, in his statement, said “when she walks, even short distances, she experiences dislocations in her lower limbs”. It seems a curious omission not to describe a full hip dislocation in some detail.

10. The Applicant gave evidence that her mobility had been declining for approximately 5 years and that hip and knee pain was a long-standing issue. However, she and her husband bought a two-storey townhouse in early 2023.

11. The Tribunal is satisfied that Applicant was still playing able-bodied tennis in September 2024, albeit possibly with breaks, which she did not mention in her second statement. In her second statement, the Applicant reported that on an average day she could walk 500 meters on a flat, sealed surface at a time but would experience a symptom flare up after 300 meters. She could stand for 2-3 minutes or up to 5 minutes of dynamic standing. Despite playing tennis, she required the assistance of her partner to balance when bathing and dressing and could not put away items around the home due to limited standing and walking tolerance.[255] The Applicant said she could drive up to 30 minutes and drove about 10-15 minutes once per week. She also travelled on public transport typically once a fortnight or occasionally weekly. She claimed: “If I happen to travel without my wheelchair on public transport, I require someone to carry my bag and assistance to safely navigate on and off the train due to balance and instability issues”.[256] This assertion is hard to reconcile with her ability to balance herself while playing tennis and snowboarding.

    [255] JHB1, p208 and 211.

    [256] T2 of JHB1, p208.

12. Despite the claimed rapid deterioration over the past 2 years, the Applicant did not see a physiotherapist with any regularity particularly in the 6 months between July 2024 and January 2025, she did not abstain from high impact sports like snowboarding and tennis, and she did not follow-up with Dr Lau over the past year in circumstances where she was essentially transitioning to daily wheelchair use and claiming to experience daily hip dislocations. Clinical notes from Ms IG did not reveal any clear distress about her functional decline including the impact on her new marriage and the adjustment to daily wheelchair use, or concern about whether her functional decline would continue.

    Limitations of OT functional capacity assessments and reports

13. Ms LG was the first OT to assess the Applicant’s physical impairments in September 2023. Ms LG was later “requested to provide a report in preparation for [the Applicant’s] upcoming NDIS Plan review”. Ms LG indicated her second “report provides additional information to the Functional Assessment Report completed on 21/09/2023”.[257] The functional assessment did not occur in the Applicant’s home, did not include photos, and did not indicate whether any functional tasks were directly observed. Despite these obvious limitations, Ms LG recommended the Applicant be assessed for an “appropriate wheelchair to assist with access to the community for engagement in shopping and leisure activities”.[258]

    [257] JHB1, p38.

    [258] JHB1, p43

14. Ms LB also did not carry out the level of objective testing and clinical observations that the Tribunal would expect to see in relation to a 27 year old woman who was transitioning to a wheelchair whilst also living in a two-storey house. She did not question whether the Applicant required a wheelchair, and she did not know if a practitioner had recommended the Applicant use one.

15. As discussed above, Ms CL had very limited experience conducting functional capacity assessments for clients in Australia, with previous experience in the Philippines focused on children. She conceded that most of her report was based on the Applicant’s self-reports. Ms CL conducted, what the Tribunal considers, a very limited functional assessment of what the Applicant could and could not do in the home. Further, many of her conclusions about the Applicant’s ability to communicate, read and process were at odds with the Tribunal’s own observations of the Applicant over several days.

16. In the Tribunal’s view, all the OT reports had a clear goal of supporting the Applicant to obtain the supports she sought from the NDIS, rather than providing an objective and independent measure of the Applicant’s function including associated recommendations based on clinical judgement. In these circumstances, the Tribunal’s ability to confidently rely on these reports is compromised. The Tribunal cannot be satisfied that the conclusions reached in the reports represent an accurate picture of the Applicant’s functional capacity or the supports she requires.

    Dramatic reduction in functional capacity without supporting medical evidence

17. There was no medical or allied health explanation for the Applicant’s dramatic reduction in functional capacity, particularly in circumstances where Dr Lau had considered her condition stable and did not anticipate she would require daily use of a wheelchair. 

18. There was evidence to suggest that the Applicant has become increasingly reliant and dependent on her husband. The Husband acknowledged that she now required him to apply sunscreen to her face and organise her clothes in circumstances where she previously did it herself. The Husband saw no inconsistency with the Applicant’s ability to grasp a tennis racket with her inability to carry a plate to the dinner table. He seemed to consider it unreasonable to expect the Applicant to walk downstairs to get a snack from the kitchen in circumstances where she snowboards, appearing to attribute part of the Applicant’s inability to her ASD and the overwhelm of “going from task to task”.[259]

    [259] Husband’s oral evidence.

19. There may be very good reasons for the apparent rapid decline in the Applicant’s functional capacity however that evidence was not forthcoming in these proceedings. The Tribunal cannot exclude the possibility that some of the reported functional decline, and the use of assistive technology like the wheelchair, has occurred for the purposes of bolstering the Applicant’s claims under section 24(1)(c). The Applicant’s relatively in-depth knowledge of the deeming provisions, in this regard, was noted.

    Conclusion

20. There is no need to consider the deeming provisions under rule 5.8 in circumstances where Tribunal is unable to achieve state of satisfaction about what the Applicant can and can’t do. The Tribunal would need to be satisfied that the Applicant is unable to participate effectively in the relevant activity without the assistive technology or equipment and/or requires assistance from another person to participate in an activity. The mere use of assistive technology or the bare assertion of reliance on a partner does not engage these provisions without cogent and reliable evidence.

21. For the same reason, the Tribunal is not satisfied that the Applicant’s physical impairments result in substantially reduced functional capacity in the domains of mobility or self-care.

22. Section 24(1)(c) is not met.

    Section 25(1) – Early Intervention

23. As the Tribunal has not found that the Applicant’s impairments can be said to be permanent, she cannot satisfy section 25(1)(a)(ii) and therefore does not meet the early intervention criteria.

    Requested supports

24. As the Tribunal finds that the impairments arising from hEDS do not satisfy the access criteria under sections 24 or 25 of the NDIS Act, and therefore section 34(1)(aa), it is unnecessary to consider whether the supports requested by the Applicant in relation to those impairments satisfy the remaining criteria pursuant to s 34(1) of the NDIS Act.

    Participant status

25. Finally, the Tribunal wishes to be clear that this decision does not affect the Applicant’s current status as a participant of the scheme. However, due to the evidence and findings contained in this decision, the Tribunal cannot exclude the possibility that the Respondent may take further action pursuant to section 30 of the NDIS Act in relation to revocation of participant status. Any decision to revoke an Applicant’s status is a separate reviewable decision pursuant to section 99 of the NDIS Act. 

    DECISION

    The Tribunal, pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) sets aside the decision under review and remits the matter for reconsideration with the following order:

    1.    12 hours of psychology support in relation to impairments arising from the Applicant’s Autism Spectrum Disorder (ASD) is not a reasonable and necessary support and is not to be approved for inclusion in her statement of participant supports (SOPS).

    2.    Any additional psychology support is not reasonable and necessary and is not to be approved for inclusion in her SOPS.

    3. The Applicant does not meet the requirements of ss 24 or 25 of the National Disability Insurance Scheme Act 2013 (Cth) in relation to impairments arising from Ehlers-Danlos Syndrome (EDS) – Hypermobility Subtype (hEDS) and the supports requested in relation to these impairments are not reasonable and necessary supports.

Date(s) of hearing:	8 – 10 April, 5, 9 and 14 May 2025 – by video
Applicant:	Self-represented
Counsel for the Respondent:	Ms Amy Douglas-Baker
Solicitors for the Respondent:	Ms Rachel Cubela, Moray & Agnew