Van Hout and National Disability Insurance Agency - [2023] AATA 2771

Van Hout and National Disability Insurance Agency [2023] AATA 2771 (29 August 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/1763
Re:Renee Van Hout
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member I Thompson
Date:29 August 2023
Place:Adelaide

The reviewable decision is set aside and substituted by a decision that Ms Van Hout meets the early intervention requirements under s 25 of the NDIS Act to become a participant of the National Disability Insurance Scheme.
..........................[Sgnd]........................................
Member I Thompson
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – disability requirements – early intervention requirements – applicant aged 38 - has impairments from type 1 diabetes, autonomic neuropathy and gastroparesis - consideration of medical history and treatments - whether impairments resulted in substantially reduced functional capacity - disability requirements under s 24 NDIS Act not met - early intervention requirements under s 25 NDIS Act met – decision set aside.
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
CASES
FBJV and NDIA [2021] AATA 913
HSPC v National Disability Insurance Agency [2021] AATA 727
James v National Disability Insurance Agency [2019] AATA 4248
Madelaine v NDIA [2020] AATA 4025
MRLK v NDIA [2021] AATA 3896
Mulligan v NDIA (2015) FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11
NDIA v Davis [2022] FCA 1002
Puster and National Disability Insurance Agency [2023] AATA 1760
SECONDARY MATERIALS
Agency’s Operational Guideline – Access to the NDIS
REASONS FOR DECISION
Member I Thompson
29 AUGUST 2023
INTRODUCTION

The applicant, Ms Renee Van Hout, made an access request to the National Disability Insurance Agency (“the Agency”) to become a participant in the National Disability Insurance Scheme (“NDIS”). Her request to become a participant of the NDIS was made on the basis of her impairments of type 1 diabetes, autonomic neuropathy and gastroparesis.
The Agency declined Ms Van Hout’s request. She sought an internal review of that decision which was subsequently affirmed by a delegate of the Agency on 9 February 2022.[1] It was noted that Ms Van Hout who is now thirty-seven years old, met the age and residency criteria, however it was decided that she did not meet the disability or early intervention requirements in ss 24 and 25 of the National Disability Insurance Scheme Act 2013 (“the NDIS Act”).
[1] Exhibit R1, T-Documents, T2, page 13.
Ms Van Hout applied to the Tribunal for review of that decision. In her written application,[2] she referred to the functional impact of her impairments and her need for lifetime support from the NDIS, adding that her disability is permanent and will never change. Together with her two young children, Ms Van Hout resides with her elderly parents.
[2] Exhibit R1, T-Documents, T1, page 1.
ISSUE
The issue for the Tribunal to determine is whether Ms Van Hout meets the requirements for accessing the NDIS. In order to qualify as a participant in the NDIS, an applicant must meet the criteria outlined in s 21 of the NDIS Act. The Agency was satisfied that she meets the age and residency criteria, which are outlined in ss 22 and 23 of the NDIS Act.
Specifically, the Tribunal must determine whether Ms Van Hout meets the disability requirements under s 24 of the NDIS Act, or the early intervention requirements under s 25 of the NDIS Act.
THE HEARING
The hearing in the Tribunal took place in person on 16 May 2023. Ms Van Hout was self-represented, and her mother attended in support. The Agency was represented by Ms Carnell, of Counsel. The Tribunal heard oral evidence given by Ms Van Hout in support of her application. The Agency had arranged for an assessment by an occupational therapist, Ms Alicja Ploszaj, who gave evidence by video at the hearing. The Tribunal received in evidence documents which included medical reports, allied health reports, letters, forms, and other material.
LEGISLATIVE FRAMEWORK
The NDIS comprises coordination, strategic and referral services or activities, funding to persons or entities to assist the participation of people with disability in economic and social life, and funding through individual plans for reasonable and necessary supports for participants in the NDIS.[3]
[3] National Disability Insurance Scheme Act 2013 (Cth) s 8.
It is important to note the comments of the Federal Court (per Mortimer J) in Mulligan v NDIA, at [34]:
It is clear from the legislative scheme that the decision whether a person is or is not a participant is the threshold decision under the scheme, and the decision which enables access to most benefits and funding available under the NDIS. However, what benefits and supports are provided, and how they are funded is subject to a separate decision-making process.[4]
[4] (2015) FCA 544, at [34] per Mortimer J.
The question whether an applicant satisfies the access criteria to become a participant in the NDIS involves a consideration of these questions:
(a)Does the applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable, within the meaning of s 24(1)(a) of the NDIS Act;
(b)Are the impairment or impairments likely to be permanent within the meaning of s 24(1)(b) of the NDIS Act;
(c)Have the impairment or impairments resulted in substantially reduced functional capacity to undertake relevant activities within the meaning of s 24(1)(c) of the NDIS Act;
(d)Do the impairment or impairments, affect the applicant’s capacity for social or economic participation within the meaning of s 24(1)(d) of the NDIS Act;
(e)Is the applicant likely to require support under the NDIS for their lifetime within the meaning of s 24(1)(e) of the NDIS Act; and
(f)Does the applicant meet the early intervention requirements within the meaning of s 25 of the NDIS Act.
The criteria in each of the sections 24(1) and 25(1) of the NDIS Act are cumulative. Accordingly, all of the requirements in either of those sections of the NDIS Act must be satisfied to enable a person to become a participant in the NDIS.
Under s 209 of the NDIS Act, the Minister has made rules about becoming a participant in the scheme. The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (“the NDIS Rules”) are relevant to this case. The NDIS Rules form part of the legislation.
The CEO of the Agency made an Operational Guideline for staff in exercising their functions under the NDIS Act. The Operational Guideline – Access to the NDIS provides information and guidance regarding the disability requirements and the early intervention requirements.[5]
[5] The Operational Guideline dated 1 July 2022 was superseded by Operational Guideline dated 26 June 2023.
CONTENTIONS
In her application for review of the Agency’s decision, Ms Van Hout wrote that she does not need a wheelchair or other forms of support for mobility, however her disability can have a significant impact on her life. The impact of her disability can occur spasmodically and without warning. She may be feeling well at one moment and extremely unwell the next. She pointed out that she has been taken to hospital “in the middle of the night.” She relies upon the help of her parents both in relation to her own impairments and the impact that those impairments have upon the care that she can provide to her two children. In her written application, she included comments about the permanency of her disability. Those comments would appear to relate to the Agency’s original decision which determined that there was insufficient evidence about the permanency of the impairments.[6] However, on internal review, the delegate of the Agency’s CEO was satisfied that the criteria for permanence were met.[7]
[6] Exhibit R1, T-Documents, T9, page 43.
[7] Exhibit R1, T-Documents, T1A, page 4.
In closing submissions at the hearing, Ms Van Hout’s mother emphasised the difficulty for her daughter living with chronic health conditions. The acute mental health effects are evident through levels of stress and anxiety which were noted in the occupational therapy assessment. The family dynamics involve Ms Van Hout’s parents providing her with a considerable amount of assistance in daily activities. Those dynamics flow from the chronic physical impairments which Ms Van Hout suffers and they reflect the way in which the family needs to operate as a whole. The request for access to the NDIS was made in the hope that professional assistance would be available beyond the intermittent assistance accessible in the health sector. Ms Van Hout’s general medical practitioner made recommendations for intervention supports which were recorded in the access request form, including exercise physiology and continence aids with the aim of preventing the deterioration of her functional capacity and improving functional capacity.[8]
[8] Exhibit R1, T-Documents, T5, page 27.
In its Statement of Facts, Issues and Contentions, the Agency accepted that the disability requirement in s 24(1)(a) of the NDIS Act is met as Ms Van Hout has a disability attributable to impairments from type 1 diabetes, autonomic neuropathy and gastroparesis. The Agency also accepted that the criterion in s 24(1)(b) of the NDIS Act is met as those physical impairments are permanent.[9]
[9] The Agency’s contentions were set out in its Statement of Facts, Issues and Contentions, and summarised in Counsel’s opening address at the hearing.
Next, the Agency contended that the Tribunal should not be satisfied that the criteria in s 24(1)(c) of the NDIS Act are met in relation to the requirement that Ms Van Hout have a substantially reduced functional capacity to undertake one or more of the activities of daily living in communication, social interaction, learning, mobility, self-care and self-management. The Agency accepted that s 24(1)(d) of the NDIS Act is met for impairments that affect Ms Van Hout’s capacity for social or economic participation.
In the absence of meeting the criteria in s 24(1)(c) of the NDIS Act, the Agency contended that s 24(1)(e) of the NDIS Act is not met as the Tribunal should not be satisfied that Ms Van Hout is likely to require support under the NDIS for her lifetime.
The Agency contended that Ms Van Hout does not meet the early intervention requirements in s 25 of the NDIS Act as her impairments are long standing and the opportunity for early intervention has passed. In addition, it was submitted that the provision of allied health services are directed to goals of which some are not specific to Ms Van Hout’s disability. In accordance with s 25(3) of the NDIS Act, early intervention support is more appropriately funded or provided through other systems of service delivery which in this case, it was submitted, should be through the healthcare system.
In closing submissions, Counsel for the Agency emphasised that Ms Van Hout’s diabetes was diagnosed in 1996 and other impairments were diagnosed in 2010. In making that point it was submitted that the time is now past for early intervention.
Counsel referred in closing to evidence from the occupational therapist, Ms Ploszaj, regarding recommendations for allied health services which might assist Ms Van Hout. It was submitted that those recommendations relate to her personal goals rather than her disability support needs. In addition, the observations which Ms Ploszaj made regarding psychosocial findings cannot be used in consideration of this application, only the impairments from the physical conditions which are relevant. It was submitted that psychosocial issues could be the responsibility of the health system particularly through a mental health care plan. Physical issues requiring occupational therapy may be dealt with through a chronic disease management plan.
EVIDENCE
Ms Van Hout wrote a letter on 22 November 2021 in which she summarised her family life at home with her parents and her two children, then aged seven and five. She wrote:[10]
“I live with my parents as I need their support both physically and mentally. My mobility is not compromised with my disability and I am able to walk, drive a car, bath and shower myself. Where I am affected is with continuous daily tasks such as cleaning and organising a household on my own. Due to my illness I am often overcome with exhaustion and need to rest. I try my best to do some voluntary work at the children’s school several days a week but find it wears me out. I do not want to give up these activities as they can also be socially rewarding. When I have to have a rest I can be confident that my children will be supervised and cared for. My mother does most of the house work, washing, cooking and also manages my financial side as I find dealing with the constant of my illness makes me frustrated dealing with those issues. I am on a pump for my Type 1 diabetes and it can sometimes be frustrating dealing with components that do not work and then trying to contact organisations to replace products. The ordering of products can often be difficult as they are never stocked at chemists, they have to be ordered in, so I have to be punctual with timing of orders as there is a restriction on amounts et cetera. This all plays on me mentally and my parents try and help me cope with these situations.… While my parents are able to assist me and they have not been away since covid happened, I may not always be able to rely on them. If they go away on holidays or die, I would need assistance in the home. I just feel comfortable if I could be more independent and they would love to leave me alone more but do not feel comfortable at this stage.”
[10] Exhibit R1, T-Documents, T11, page 49.
In a subsequent written statement,[11] Ms Van Hout wrote that she requires continuous insulin in her body 24/7 to enable her to function on a daily basis. She must monitor the amounts of insulin to the food that she consumes and the exercise which she undertakes. She checks her blood sugar levels constantly. It is a mentally draining existence which causes her to get depressed. It becomes even more difficult when the equipment fails, and she has been hospitalised because of system failure. She described the faecal incontinence, which occurs without notice, as probably her “worst nightmare”..” She has recently had eye laser treatment for proliferative diabetic retinopathy. She has problems with her feet with no feeling in them. In cross examination she mentioned that she has good days and bad days. They are unpredictable. For example, she might have a full week when she is well, not restricted and energetic. Then she might have another week when she is feeling sick each day or most days and cannot function properly.
[11] Exhibit A1, Statement of Lived Experience, dated 4 July 2022.
In her oral evidence, Ms Van Hout confirmed and expanded upon her written statements. She told the Tribunal that she has lived with her parents for the last 9 years. Her children are now aged 6 and 9 and they live with her and her parents who are now aged 73 and 75. Her parents assist her in the care of the children especially when she is unwell. The children attend a local primary school, and she often walks with them to or from school, which is about a 10 to 15 minute walk each way. She said that she does not like talking about herself, she feels she is a burden trying to explain her situation. She was asked about the occupational therapy assessment and report by Ms Plosjaz. Her overall impression of the report was that it was generally accurate. She said that she had tried to implement some of the recommendations. For example, she consulted a general medical practitioner about a mental health care plan to enable her to be referred to a psychologist. That process has become problematic, and she is on a waiting list, apparently without any immediate prospect of seeing a psychologist.
Ms Van Hout’s mother, Shirley Van Hout, provided two written statements which describe some aspects of their family life comprising five family members over three generations permanently living together. Within those written statements are descriptions of the occasions when Ms Van Hout has been extremely ill, for example on one occasion an ambulance was called to their home at 3:00AM and on another occasion an ambulance was required to treat her for a hypoglycaemic attack which happened in a supermarket. Mr and Mrs Van Hout Snr do not like to be away from their daughter overnight in case of health emergencies. They would like to see their daughter supported to have more independence and it would be comforting to find an external support network which might assist from time to time. Mrs Van Hout Snr commented on the daily pressure for her daughter managing health issues including fatigue, depression and anxiety. Ms Van Hout’s nine-year-old daughter has some awareness of the nature of her mother’s health problems and has an understanding of how to seek help if the grandparents are not present. Mrs Van Hout Snr manages her daughter’s finances and takes responsibility for the housework, washing and cooking.
In a report written on 7 January 2016 by her general medical practitioner, [12] Dr Huguette Rignanese, it was recorded that Ms Van Hout is “an insulin dependent diabetic on an insulin pump requiring to constantly monitor her BSL as she experiences frequent hypoglycaemic attacks.” As a result of her diabetes, she suffers with gastroparesis which causes bowel motion “sometimes explosively.” She has seen various gastroenterologists and no cause has been found. The faecal incontinence continues during the night and the use of continence aids does not always prevent leakage. Dr Rignanese wrote that Ms Van Hout was taking codeine phosphate to control the bowel motions as the only measure, albeit a narcotic, that provides effective control. Finally, Dr Rignanese commented that Ms Van Hout has autonomic neuropathy which contributes to postural hypotension.
[12] Exhibit R1, T-Documents, T3, page 22.
Dr Amanda Terry is an endocrinologist who has treated Ms Van Hout since 2013 regarding her type 1 diabetes. In a report dated 7 March 2021, [13] Dr Terry wrote that Ms Van Hout has had diabetes from the age of 11. She confirmed that the diabetes is complicated by diabetic retinopathy, diabetic nephropathy, hyperlipidaemia, autonomic neuropathy, and gastroparesis. She commented that the diabetes is quite well-controlled on an insulin infusion pump. Because of the gastroparesis and autonomic neuropathy Ms Van Hout has “relatively frequent” hyperglycaemia or hypoglycaemia. She had a recent admission to hospital because of diabetic ketoacidosis. She is taking medication for hyperlipidaemia. Dr Terry described Ms Van Hout’s main problem as diabetic gastroparesis “which is quite disabling. Her bowel dysfunction results in diarrhoea and she is limited in her ability to work or do activities that may not be near appropriate bathroom facilities. She has tried a variety of treatments for this and the only medication that has any effect is Codeine, which is not encouraged for long term use.”
[13] Exhibit R1, T-Documents, T7, page 39.
In subsequent correspondence,[14] Dr Terry explained that a variety of medications has been prescribed for Ms Van Hout’s gastroparesis. She has been assessed by two gastroenterologists, a rectal surgeon and three endocrinologists to try to find solutions to her problems. Her use of an insulin infusion pump with paired continuous glucose monitoring has assisted in the management of her diabetes with more stability in blood glucose levels. However, she is still troubled by highs or lows which are unpredictable. The treatment for the diarrhoea by codeine results in nausea and drowsiness and the medication controls but does not modify the condition. Dr Terry confirmed that Ms Van Hout is receiving the most advanced treatment for glucose management. The treatment for gastroparesis is yet to achieve a control of the symptoms without side effects. Unfortunately, as she has gastroparesis, she is unlikely to achieve stability in her glucose levels.
[14] Exhibit R1, T-Documents, T13, page 52.

In correspondence dated 12 November 2021,[15] Dr Terry confirmed that the bowel disturbance limits Ms Van Hout’s ability to work or to participate in activities where she is not close to bathrooms. The constant diarrhoea causes fatigue. Dr Terry confirmed that the autonomic neuropathy results in “variable absorption of food” leaving her prone to frequent hyperglycaemia or hypoglycaemia which requires immediate treatment.
[15] Exhibit R1, T-Documents, T12, page 51.
Dr Michael Horowitz is a Professor of Medicine and Endocrinologist who has treated Ms Van Hout. He wrote about Ms Van Hout’s “diabetes distress” which is the “emotional burden of living with and managing diabetes.” Dr Horowitz considered that this level of stress has led to a substantial reduction in Ms Van Hout’s functional capacity.[16]
[16] Exhibit A2, Letter from Professor Horowitz.
Ms Van Hout agreed to participate in a functional capacity assessment which was arranged by the Agency to be conducted by an occupational therapist, Ms Alicja Ploszaj. The Tribunal received into evidence the report,[17] which Ms Ploszaj wrote on 12 October 2022 following an in-home assessment on 31 August 2022. Ms Ploszaj gave evidence by video at the hearing. In her written report she provided this summary:
“At present, Ms Van Hout is demonstrating significant functional impairments and difficulties to manage the requirements of her role as a mother to her two children.
“She has a number of limitations pertaining to her mental health symptoms and physical limitations…
“Ms Van Hout is independent with all personal, domestic and community functional tasks – however stated that the performance of these tasks is challenging due to her mental health and physical limitations as well as exacerbation of pain and energy management.
“Ms Van Hout is currently focused on receiving supports for the completion of domestic tasks due to the ineffective management of her symptoms and lack of a sustainable daily structure.”
[17] Exhibit R2, Functional Capacity Assessment Report of Ms Alicia Ploszaj.
In her oral evidence at the hearing, Ms Van Hout commented on the occupational therapy report. She thought that overall, it was fair and accurate. She agreed broadly with the way in which the report recorded her account of her symptoms. They include the onset of faecal incontinence on exertion, an unstable daily routine because of aggravation of pain in her lower abdomen, faecal incontinence or constipation interrupting her routine and daily activities, fatigue from pain, limited energy and the necessity to manage her energy levels to avoid aggravation of pain. In evidence she described how her diabetes wears her down particularly when her blood sugar is elevated. Her only option then is to lie down and rest. Some days she stays in bed all day. She confirmed that she had worked part-time as a carer and as a diversional therapist until 2012. However, being away from work and sometimes hospitalised because of gastrointestinal illnesses and faecal incontinence became too much and she could not continue working. She had the diabetic pump inserted in 2014 which assisted with the management of her diabetes; however, it did not address the problems from the gastroparesis and autonomic neuropathy. Presently she volunteers at her children’s school, working in the canteen as often as she can. She enjoys and values the opportunity to do the work and mix with other parents. Sometimes she takes codeine to try to ensure that she can attend and complete the work. Sometimes the use of codeine is successful and sometimes not. It is unpredictable. If unsuccessful, she returns home and rests. The pain in the lower abdomen can be relieved at home through resting. If she is out with her children and suffers the lower abdominal pain, she tolerates it as best she can.
Ms Ploszaj is an experienced functional therapist. Her qualifications include a Master of Science in neuro-rehabilitation. The functional capacity assessment included a combination of clinical observations and Ms Van Hout’s self-reporting. Ms Ploszaj told the Tribunal that Ms Van Hout has significant potential to improve through rehabilitation as her current functional status is not stabilised. She has a number of limitations, both reported and observable, and her current living situation affects her mental health given that she has a desire to live independently. Ms Ploszaj considered that Ms Van Hout is capable of living independently of her parents and both returning to some form of employment while caring for her to children.
Ms Ploszaj administered a screening test for depression and anxiety.[18] Ms Van Hout’s score was in the severe range for all three measures, namely depression, stress and anxiety. Ms Ploszaj confirmed in evidence that her opinions about Ms Van Hout’s mental health were formed from the combination of self-reporting and the results of the depression and anxiety (DASS) screening test. Ms Ploszaj acknowledged that her role was not to diagnose a mental health impairment.
[18] Exhibit R2, Functional Capacity Assessment Report of Ms Alicia Ploszaj, page 10.
In relation to the various recommendations which Ms Ploszaj set out in the report, she acknowledged that those recommendations relate to measures to improve the symptoms of Ms Van Hout’s physical impairments, while the impairments themselves require medical management. Her assessment included the following:
(a)Ms Van Hout would benefit from formal occupational therapy assessment for equipment prescription, capacity skill building and development of a routine with prompts and energy conservation strategies;
(b)with appropriate medical interventions and assistance regarding energy conservation, development of daily schedule and support she would be capable of returning to paid employment and managing most daily activities independently; and
(c)a mental health professional could assist her with psychosocial interventions to support her psychological needs; her mental health symptoms should improve with professional intervention and support.[19]
[19] Exhibit R2, Functional Capacity Assessment Report of Ms Alicja Ploszaj, page 25.
CONSIDERATION
Ms Van Hout gave oral evidence which was consistent, honest and reliable. The Tribunal accepts her evidence.
DISABILITY REQUIREMENTS
The concept of impairment, rather than a definition of disability, is central to the threshold provisions such as s 24 of the NDIS Act. In Mulligan, the Federal Court (Mortimer J) pointed out that while the NDIS Act refers frequently both to “disability”, without defining it, and to “impairment”, without defining it,[20] “the undefined statutory phrase ‘people with a disability’ is not to be construed as limited to people who meet the access criteria in Ch3 of the Act. The access criteria have a number of components and thresholds”.[21] The Court pointed out in Mulligan, at [56]:
“No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do.”
[20] (2015) FCA 544, at [16].
[21] As above, at [18].
Section 24(1)(a) of the NDIS Act provides that a person meets the disability requirements if:
“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.”
The Tribunal is satisfied on the evidence that the concession by the Agency regarding s 24(1)(a) of the NDIS Act is correct. The Tribunal finds that Ms Van Hout has a disability which is attributable to impairments from type 1 diabetes, autonomic neuropathy and gastroparesis.
The identification of the impairment is fundamental to this part of the review. As the Federal Court pointed out in NDIA v Davis:[22]
“what the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.”
[22] [2022] FCA 1002 at [69].
The next step is to decide whether Ms Van Hout meets the requirements regarding permanency.
PERMANENCE – S 24(1)(B) OF THE NDIS ACT
The NDIS Rules provide the criteria for assessing whether an impairment is permanent or likely to be permanent. NDIS Rules 5.4 and 5.5 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.”
In Ms Van Hout’s access request form, her general medical practitioner Dr Rignanese confirmed the permanency of her diabetes which was diagnosed in 1996, and the permanency of the diabetic autonomic neuropathy causing gastroparesis and small bowel syndrome, diagnosed in 2010. The Agency accepted that the criterion in s 24(1)(b) of the NDIS Act is met as Ms Van Hout’s physical impairments are permanent.[23] That concession is correct.
[23] The Agency’s Statement of Facts, Issues and Contentions at [34].
On consideration of the evidence, the Tribunal is satisfied about the permanency of the physical impairments. A distinction must be drawn between those impairments and mental health difficulties attributable to psychosocial factors. In his letter,[24] Professor Horowitz commented that Ms Van Hout has “diabetes distress” which he described as the “the emotional burden of living with and managing diabetes.” He is a Professor of Medicine and Endocrinology. The occupational therapist Ms Ploszaj applied the depression and anxiety scale (DASS) screening test to measure Ms Van Hout’s emotional states of depression, anxiety and stress which were all recorded in the severe range. Ms Ploszaj did not purport to provide a psychosocial diagnosis through application of the screening test, which is concerned with negative emotional states. It was conducted together with the World Health Organisation Disability Assessment Scale (WHODAS) 2.0 which assesses disability across 6 domains, of which one is cognition with particular reference to understanding and communicating. It was not suggested on behalf Ms Van Hout, or stated or implied in the medical and allied health evidence, that the Tribunal should find that she has an impairment arising out of a psychosocial disability or that any such impairment or impairments are or are likely to be permanent.
[24] Exhibit A2, Letter from Professor Horowitz.
The Tribunal is satisfied that Ms Van Hout meets the requirement in s 24(1)(b) of the NDIS Act with regard to the permanence of her physical impairments of type 1 diabetes, autonomic neuropathy and gastroparesis.
REDUCED FUNCTIONAL CAPACITY
The next question is whether Ms Van Hout meets the requirements which are set out in s 24(1)(c), (d) and (e) of the NDIS Act in relation to her physical impairments.
Section 24(1)(c) of the NDIS Act - Whether the impairments result in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care, self-management.
Each of the activities specified in s 24(1)(c) of the NDIS Act and their impact on functional capacity will be examined in relation to Ms Van Hout’s physical impairments. The legislation requires:
“a relatively high degree of precision by decision- makers (see, for example, the six activities in s 24(1)(c) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted.”[25]
[25] Mulligan v NDIA [2015] FCA at [55].
In considering when an impairment results in substantially reduced functional capacity to undertake relevant activities, Rule 5.8 of the NDIS Rules provides that the decision-maker must assess the effect of a person’s impairment on the performance of each of the activities that are set out in s 24(1)(c) of the NDIS Act. If the result is any of the outcomes which are specified in Rule 5.8(a), (b) or (c), then the deeming effect of Rule 5.8 will apply, namely that the impairment results in substantially reduced functional capacity to undertake one or more of the relevant activities. These Rules require consideration of a person’s capacity to participate in the activity without assistive technology, equipment other than commonly used items or home modifications; whether the person usually requires assistance from someone else to undertake the activity; or whether the person is unable to participate in the activity even with assistive technology, equipment, home modifications or assistance from another person.
The Agency’s Operational Guideline states that an impairment substantially reduces functional capacity if the person usually needs disability-specific supports to participate in or complete tasks of daily living. [26] Drawing on NDIS Rule 5.8 those disability-specific supports include:
“a high level of support from other people, such as physical assistance, guidance, supervision or prompting,
“assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.”
[26] Exhibit R1, T15, Agency’s Operational Guideline.
The disability requirements in s 24 of the NDIS Act acknowledge impairments that vary in intensity and impairments that are episodic or fluctuating. In relation to impairments that vary in intensity, s 24(2) of the NDIS Act provides that:
“(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.”
In relation to impairments that are episodic or fluctuating, s 24(3) of the NDIS Act provides that:
“(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.”
In HSPC v NDIA,[27] the Tribunal comprising Deputy President Humphries explained that the references to impairments varying in intensity in s 24 (2) of the NDIS Act and episodic or fluctuating impairments in s 24(3) of the NDIS Act are concerned with the question of permanency (s 24(1)(b) of the NDIS Act) and the issue of NDIS lifetime support (s 24(1)(e) of the NDIS Act). Otherwise, it might be suggested that episodic, substantial reductions in functional capacity would suffice as evidence for entry into the NDIS. The Tribunal rejected that suggestion in HPSC v NDIA.[28]
[27] [2021] AATA 727.
[28] As above, at [44].
The Agency’s Operational Guideline clarifies that evidence about reduction in a person’s functional capacity can be considered in relation to:[29]
“different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day to day life.”
[29] Exhibit R1, T15, Agency’s Operational Guideline.
The Federal Court in NDIA v Foster[30] described the Operational Guideline as providing “non-exclusive content to the range of “tasks and actions” (as referred to in Rule 5.8) that comprise the “activities” the NDIA is required to consider, consistent with the legislative history, context, and purpose.[31]”
[30] [2023] FCAFC 11.
[31] As above, at [62].
Section 24(1)(c)(i) of the NDIS Act – Communication
The Agency’s Operational Guideline provides some clarity about its interpretation of communication. It refers to communications such as:
“how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.”
In the NDIS access request form Ms Van Hout wrote that although she is able to speak clearly, she has difficulty recalling events and places, and her speech becomes unclear when she has “major collapses due to hypos.”[32]
[32] Exhibit R1, T-Documents, T5, page 33.
Ms Ploszaj considered that Ms Van Hout has “intact and functional communication skills”.[33] In evidence she observed that Ms Van Hout does not have challenges with communication.
[33] Exhibit R2, Functional Capacity Assessment Report of Ms Alicja Plosazj page 38.
Ms Van Hout was articulate and clear in her oral evidence at the hearing. The Tribunal accepts that she has difficulties with communication when she has a hypoglycaemic attack. While those difficulties are significant, the Tribunal is not satisfied that there is sufficient evidence to conclude that she has a substantially reduced functional capacity to communicate within the meaning of s 24(1)(c)(i) of the NDIS Act.
Section 24 (1)(c)(ii) of the NDIS Act – Social Interaction
As a guide to the elements of social interaction, the Agency’s Operational Guideline refers to socialising as:
“how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.”
Ms Ploszaj’s functional capacity assessment report relied upon information which Ms Van Hout provided concerning social interaction. Because of pain, energy levels and concerns about incontinence, Ms Van Hout reported that she had decreased ability for socialising associated with low mood, motivation and lack of confidence. Ms Ploszaj considered that Ms Van Hout is independent in her engagement in social interactions, she speaks with friends over the phone, and she is “capable of engaging in various social interactions within the limits of her restrictions due to incontinence, energy and mood.” [34]
[34] Exhibit R2, Functional Capacity Assessment of Ms Alicja Ploszaj, page 34.
In evidence Ms Ploszaj explained that Ms Van Hout’s difficulties with socialisation were primarily related to her mental health, motivation and low mood rather than her physical impairments. However, the incontinence issues make Ms Van Hout feel ashamed which in turn contributes to the problems with low mood and motivation.
In the NDIS access request form Ms Van Hout referred to “mental health issues regarding all my conditions, the way it impacts on my ability to live a normal life – I have limited friends due to lack of understanding and control over my bowel and hypos. My mood swings are altered depending on my levels and I need additional support to do basic jobs around the home. I have difficulties allowing other people in due to my inability to control my bowel and hypos. Difficulties in explaining the conditions and I’m embarrassed and uncomfortable in the community due to having accidents, loss of bowel control.”[35]
[35] Exhibit R1, T-Documents, T5, page 31.
In her written responses to questions, Ms Van Hout indicated that she does not speak to friends or family members by telephone, she interacts occasionally with friends or family members, and she accesses Facebook.[36] Ms Van Hout told the Tribunal that she does not have many friends. She described having a small friendship group comprising two or three good friends. She does not participate actively on social media. She suffers from exhaustion and cannot participate in a friendship group and social activities in any sustained way. Hence, she tends to spend more time at home and become somewhat isolated. She thrives on the social contact and social aspect of the activities in her children’s school canteen. It is voluntary work and her interaction with other parents is immensely satisfying for her. It is socially rewarding for her as it enables her to play a useful role. Currently she works in the school canteen generally one day per week, commencing when she drops the children off and finishing around 2:00PM.
[36] Exhibit A1, Applicant’s Bundle of Documents.

The Tribunal is satisfied on the evidence that Ms Van Hout’s physical impairments have an adverse impact on her capacity for social interaction. However, the Tribunal is not satisfied that it is to the extent of causing a substantially reduced functional capacity for social interaction within the meaning of s 24(1)(c)(ii) of the NDIS Act.
Section 24(1)(c)(iii) of the NDIS Act – Learning
The Agency’s Operational Guideline refers to learning as “how you learn, understand and remember new things, and practise and use new skills.”
Ms Ploszaj’s report mention difficulties that Ms Van Hout may have with concentration and attention. However, these are symptoms which could be present because of mental health and psychosocial issues.[37] Ms Van Hout reported to Ms Ploszaj that she has difficulty remembering to complete tasks, difficulty with new tasks and goal attainment, because of challenges with her level of pain, fatigue, lack of motivation and low mood resulting in poor concentration and tension. The results of screening tests which Ms Ploszaj administered led to the conclusion that:
“she experiences mild difficulties analysing and finding solutions to problems in day-to-day life, remembering to do important things and learning a new task. Furthermore, Ms Van Hout’s scoring indicates some difficulty concentrating on doing something for 10 minutes.”[38]
[37] Exhibit R2, Functional Capacity Assessment of Ms Alicja Ploszaj, page 39.
[38] Exhibit R2, Functional Capacity Assessment of Ms Alicja Ploszaj, page 11.
In her NDIS access request form, Ms Van Hout wrote that the hypoglycaemic episodes alter her mind and result in her being unable to complete tasks and she becomes lethargic and disinterested in events occurring around her. She wrote that small bowel syndrome and autonomic neuropathy alter the way in which her body reacts to food, and she needs assistance from others to help monitor her safety with food intake.
Although she has problems from time to time with memory and learning, the Tribunal does not consider that the evidence warrants a finding that Ms Van Hout has a substantial reduction in functional capacity in learning as required by s 24(1)(c)(iii) of the NDIS Act.
Section 24 (1)(c)(iv) of the NDIS Act – Mobility
The Agency’s Operational Guideline refers to mobility as:
“how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.”
In the NDIS access request form, Ms Van Hout reported that she becomes very tired walking around at home and she becomes unsteady on her feet. Because of diabetes and small bowel syndrome she is liable to unsteadiness and falling to the floor, while “during a hypo my body’s reaction to events becomes slow and my reaction time is delayed. I need help from others around me.”[39]
[39] Exhibit R1, T-Documents, T5, page 33.
Ms Ploszaj reported that Ms Van Hout is independent with indoor and outdoor mobility. She may exercise caution and take extra time with some movements. She is capable of walking up to 20 minutes before requiring a break to conserve energy and minimise risk of incontinence. She can walk 500 to 600 metres without limitation in regard to surfaces. She is not at a high risk of falls. Her fear of falls because of diabetic low sugar levels is a matter best referred for specialist medical opinion. According to this occupational therapy assessment, Ms Van Hout “appeared to have no limitations with travel other than the requirement to stop for toilet breaks and/or use continence pads to manage her continence as per the requirements of the day of travel.”[40]
[40] Exhibit R2, Functional Capacity Assessment of Ms Alicja Ploszaj, page 31.
In oral evidence Ms Ploszaj confirmed that on the day of the assessment Ms Van Hout had taken medication to minimise incontinence and that may have affected the observation that there were no limitations demonstrated in her mobility. Equally, she may have some restrictions with mobility when she is not taking medication.
Ms Ploszaj assessed Mr Van Hout’s mobility, general movement and ability to transfer. The findings included the following deficits:[41]
[41] Exhibit R2, Functional Capacity Assessment of Ms Alicja Ploszaj, pages 15 - 17.
·“intact gross motor skills with low tone in her core and weakness in the abdomen from bowel incontinence, noting Ms Van Hout reported difficulties with any movements involving bending or pressure on her abdomen is it causes faecal incontinence.”
·“reported fatigue after more than 10 minutes of standing.”
·“reported fatigue after walking around the home for 10 minutes, with discomfort in in the abdomen.”
·“reported to be cautious with twisting because of risk of becoming incontinent.”
·“avoids bending to minimise risk of becoming incontinent and to avoid exacerbation of pain.”
·“weakness in kneeling.”
·“discomfort with squatting and fear of incontinence.”
·“capable of lifting and carrying light household items with reported experience of pain.”
·“capable of reaching above her head and below hip, reported restrictions with stretching during periods of loose bowel movements.”
Ms Van Hout’s oral evidence was consistent with the description in her letter written on 5 November 2021. She acknowledged that her mobility is not compromised in the context of walking and driving a car.[42] In written responses to questions put to her, she acknowledged that walking is not a problem for her when she is feeling well. She has an annual medical check to renew her drivers’ licence because of diabetes. She travels on public transport at least once a week and more frequently in school holidays. She can use public transport alone.[43]
[42] Exhibit R1, T-Documents, T11, page 49.
[43] Exhibit A1, Applicant’s Bundle of Documents.
The Tribunal is satisfied that Ms Van Hout experiences difficulties with aspects of mobility at home and when she is in the community. She has a reduction in functional capacity in mobility. The Tribunal finds that it does not amount to a substantial reduction for the purposes of the criterion in s 24(1)(c)(iv) of the NDIS Act, which is not met.
Section 24(1)(c)(v) of the NDIS Act – Self Care
The Agency’s Operational Guideline refers to self-care as meaning:
“personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.”
The Federal Court stated in Foster that consideration of the matters that comprise self-care involve a requirement that a decision maker must “make a functional, practical assessment of what a person can and cannot do.”[44]
[44] [2023] FCAFC 11 at [64]
Health management
According to her mother, the insulin pump has changed everything for Ms Van Hout – “her blood sugar levels have been consistent since the pump. Not to say there haven’t been issues with the pump on a fairly regular basis but the BSL levels are what is keeping Renae alive today.” [45]
[45] Exhibit A1, Applicant’s Bundle of Documents.
In more detail, Ms Van Hout commented in her written response:[46]
“I require continuous insulin in my body 24/7 to be able to live and function on a daily basis. This requires monitoring the amounts of insulin to the food I eat and exercise I do. I have to check my BSL constantly throughout the day. The amount of insulin I administer depends on my BSL reading. This can be mentally straining for me and quite often I get depressed with this continuous routine. It makes it even harder when the equipment fails. It is not an easy process to get assistance and I have been hospitalised due to system failures. I rely on this equipment to make me aware of hypos which is my biggest fear that I may pass out and not be able to get assistance.”
[46] Exhibit A1, Applicant’s Bundle of Documents.
The Tribunal is satisfied that there are times when the impact of Ms Van Hout’s impairment involves a high level of functional incapacity. There are other times when the level of functional incapacity is much lower and even negligible.
The Tribunal in Madelaine v NDIA[47] suggested that “having a substantially reduced functional capacity to care for oneself imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being.”
[47] [2020] AATA 4025 at [121].
The gaps in Ms Van Hout’s capacity for continuous self-care are significant. There are times when she is wholly incapacitated. At those times she is bed-ridden for several hours. That can occur during the day without warning. At the other end of the continuum, she is able to undertake all of the significant elements of self-care when she is well. When she is unaffected by her physical conditions, it is likely that she will not encounter restrictions in self-care. At other times she might encounter some difficulty which is troubling but not completely disruptive to the activity. In the language of the Agency’s Operational Guideline, there are “ups and downs.”
Occupational therapy tests
Ms Ploszaj recorded the scoring on the tests which she administered. The scoring on the WHODAS 2.0 indicated that Ms Van Hout does not have difficulties washing her body, dressing herself or feeding herself.
The scoring on the Abbreviated Life Skills Profile (LSP-16) indicated a mild degree of disability in self-care.
The score on the Modified Barthel Index (MBI) indicated independence with toilet transfers, bowel movements, bladder control, bathing, dressing, personal hygiene and feeding.
The scores from the Lawson Instrumental Activities of Daily Living scale indicated independence with housekeeping, laundry and administering and taking responsibility for her medications. In relation to food preparation, it was noted that Ms Van Hout can plan and prepare meals independently, but she also requires assistance to maintain a consistent diet and requires energy conservation to manage meal preparations.
Ms Van Hout told the Tribunal that she was having a good day when the occupational therapist, Ms Ploszaj, interviewed her. She mentioned that she cannot predict when she will be worn out because of the fatigue from diabetes. She gets some warning about the onset of “hypos”, and she can take measures to try to reduce the impact. However, the impact can be severe and cause her to fall over. Ms Ploszaj noted Ms Van Hout reported a fear of falling because of low sugar levels.
Ms Ploszaj wrote in her report that: [48]
“Ms Van Hout is independent in self-care activities. However, the completion of those activities is affected through decreased speed, and problems with pain, management of energy and continence requirements.
“Ms Van Hout is capable of completing the tasks with grading and pacing strategies.
“She requires extra time and modified strategies to complete self-care tasks. Potential for Improvement in speed and safety should be assessed through trials of assistive technology.”
[48] Exhibit R2, Functional Capacity Assessment of Ms Alicja Ploszaj, pages 35 – 38.
Ms Van Hout’s use of medication is a relevant factor in her ability to undertake self-care and domestic tasks. But the use of medication is itself problematic. On the one hand it will enhance her capacity for self-care. However, it is an opioid, and its continuing use is neither recommended by her endocrinologist[49] nor desired by her.
[49] Exhibit R1, T-Documents, T7, page 39.
Cooking, eating, cleaning
In her written statement, Ms Van Hout’s mother noted that she does the house work, washing and cooking. In the access request form, Ms Van Hout wrote that she relies on her carer, that is her mother, to provide food that her body will not react to. She has to be careful about the food which she consumes to avoid hypo/hyper reactions.[50] The endocrinologist, Dr Terry, confirmed that Ms Van Hout has tried many different diets and none of them have provided her with lasting relief.[51]
[50] Exhibit R1, T-Documents, T5, page 32.
[51] Exhibit R1, T-Documents, T12, page 51.
Ms Van Hout takes responsibility for the day-to-day care of her children which includes getting them ready for school, taking them to school, taking them to after-school activities, appointments and events on weekends. She cooks meals for herself and her children. Her mother takes the major role with the house cleaning. Ms Van Hout does the family shopping, and unfortunately is sometimes unwell when she is in the shopping centre. She confirmed that she takes bedding to the laundromat if it is soiled overnight.
In terms of self-care and independence, Ms Van Hout said that occasionally her parents go away which leaves her at home with sole responsibility for the household. She is able to cope satisfactorily. The longest period that her parents have been away was for a fortnight and during that time she looked after her children, rested during the day and stopped going to school to work in the canteen. In cross-examination she acknowledged that she can do all of the household cleaning tasks in accordance with her standards. She mentioned that those standards do not equate with her mother’s meticulous standards. However, she can do the household tasks, albeit more slowly. She said that if she is unwell then the house will become less clean than usual but not to the extent of being detrimental to her children.
Hygiene
Ms Van Hout wrote in the access request form in relation to hygiene and personal care:
“I am incontinent and require wipes and continence aids as after I don’t even know I have soiled myself. My carer will often have to help change my bed at nights due to soiling through. When I in an altered state I require someone to help me get to the toilet. Often my carer will check my pump at night as I don’t hear it, to check that the insulin is at the right level.” [52]
[52] Exhibit R1, T-Documents, T5, page 32.
In relation to problems with faecal incontinence, Ms Van Hout wrote:[53]
“I also suffer from faecal incontinence which occurs without notice. This is probably my worst nightmare. I am prescribed codeine to bind the bowel. As this is an opioid I am hesitant to use it regularly. If I have a really bad spell I will take some or if I am going out somewhere special. Otherwise I just take my chances. This affects my social life and I sometimes feel isolated from my family as they do not understand what I am going through.
… “My incontinence can happen 3 days in a row and then I may not get it for a week but I will say it affects me at least once a week if not more. This problem is worse as I get no warning sign could be at the shops all school and I have to make a quick exit “
[53] Exhibit A1, Applicant’s Bundle of Documents.
The endocrinologist, Dr Terry, confirmed that codeine is the only medication which has a positive impact in temporary control of Ms Van Hout’s diarrhoea. The medication is only for control of symptoms, and it does not modify the condition. Moreover, it results in drowsiness and nausea.[54]
[54] Exhibit R1, T-Documents, T13, page 52.
The results of testing using the Lawton’s Instrumental Activities of Daily Living Scale, Ms Ploszaj concluded that Ms Van Hout can take her medications independently and appropriately.[55] Ms Ploszaj also reported that the “autonomic neuropathy with gastroparesis causes incontinence and mental health issues such as low mood and motivation and complicates the diabetes. This may affect Ms Van Hout by causing her to perform tasks more slowly and with less motivation as well as experiencing mental health issues.”[56]
[55] As above, pages 35-38.
[56] Exhibit R2, Functional Capacity Assessment of Alicja Ploszaj, page 40.
In her activities of daily living, Ms Ploszaj found that Ms Van Hout is largely independent. However, the independence is accompanied by compromises, behavioural modifications and delays. For example:
·She avoids baths because of difficulties with transfers, but she would benefit from access to a bath for pain management strategies.
·She dresses independently but modifies her choice of clothing and takes extra time.
·She exhibits pain avoidant behaviours with meal preparation tasks. She often has incontinence issues with the functional postures required for some of those tasks.
·Domestic cleaning and home maintenance - “she reports finding these overwhelming due to executive dysfunction concerns, low mood and motivation as well as exacerbation of pain levels and energy conservation issues. She completes some portions of these tasks independently, intermittently and inconsistently. She also receives assistance from her parents.”[57]
[57] Exhibit R2, Functional Capacity Assessment Report of Alicja Ploszaj, pages 20-22.
In closing submissions, Counsel for the Agency argued that the evidence demonstrates that Ms Van Hout is able to exercise independence in tasks of self-care. The issue for the Tribunal, it was submitted, is what Ms Van Hout can and cannot do, rather than what she does and does not do. Reliance was placed on the evidence of Ms Ploszaj and her opinion that Ms Van Hout can carry out the tasks within this domain. Undertaking tasks in a slower or modified manner was not, according to this submission, something that amounts to a substantial reduction in functional capacity. It was acknowledged that the problems with toileting arising out of incontinence must be considered.
Reliance was placed by Counsel on the decision in the Federal Court in Foster[58] to the effect that the Tribunal must assess the bundle of tasks within this domain. The Tribunal should find that based on the evidence of Ms Van Hout and Ms Ploszaj, that Ms Van Hout is independent in all tasks of self-care. She has the capacity to do all of them and while there may be a need to undertake some more slowly or in a modified manner, the deficit does not amount to a substantial reduction in functional capacity. There are no significant gaps in Ms Van Hout’s capacity for self-care and reference was made to the Tribunal decision in FBJV and NDIA.[59] In that matter, the applicant was found to require occasional assistance for some self-care activities although she could largely perform all activities of self-care independently with no significant gaps in her capacity to do so.
[58] [2023] FCAFC 11, at [65].
[59] [2021] AATA 913 at [159].
The Tribunal accepts that Ms Van Hout has independent capacity for the essential and critical tasks of self-care. On occasions she carries out those tasks more slowly and modified in a way to keep her level of pain under control. By contrast, the Tribunal does not accept that there are no significant gaps in her capacity for self-care. There are occasions when she is forced to avoid the tasks altogether, particularly if she is confined to rest, sometimes in bed, because of pain, fatigue, or incontinence. On those occasions she is incapacitated and needs time to regain at least some of her strength and energy to get on with her daily activities, including self-care.
In closing submissions, Counsel for the Agency drew a distinction between the assistance which Ms Van Hout receives in self-care compared with assistance that she requires with the implication that the assistance that she receives arises mainly or wholly out of the living arrangements in the family home with her parents. On this interpretation of the family’s routines, she does not require assistance in many of the subtasks, let alone in all of the subtasks of self-care. For example, showering, dressing and meal preparation are all within her capability and she undertakes those activities. Accordingly, on this submission, NDIS Rule 5.8(b) is not enlivened. The Tribunal agrees with that submission at least to the extent of accepting that the deeming effect of NDIS Rule 5.8(b) does not apply in these circumstances.
The issue about the family dynamics is not straightforward. To a degree it reflects a pattern of life which works well enough for the family with accepted roles, responsibilities and interactions involving Ms Van Hout and her parents, the parenting role of Ms Van Hout, and the grand parenting contribution to the grandchildren. The living arrangements reflect the way in which three generations of the family come together, relate to one another and address the impact of Ms Van Hout’s impairments. Her capacity for self-care activities is nurtured, enhanced, and partly sustained by the framework in which the family operates.

In considering Ms Van Hout’s ability over time and with the obvious ups and downs, as the Agency’s Operational Guideline suggests, the Tribunal finds that she has a reduction in functional capacity of activities of self-care. The necessary but difficult question is whether or not the reduction is substantial. The Tribunal is persuaded by the evidence of Ms Plozasj and finds that Ms Van Hout is independent in self-care activities, although that independence is marked at times by decreased speed, problems with pain and challenges in management of energy and continence requirements.
Accordingly, the Tribunal accepts that Ms Van Hout’s impairment has resulted in a reduced functional capacity in self-care but not to the degree that it is substantially reduced within the meaning of s 24(1)(c)(v) of the NDIS Act.
Section 24(1)(c)(vi) of the NDIS Act – Self-management
The Agency’s Operational Guideline refers to self-management as:
“how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to- day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.”
In relation to self-management, Ms Van Hout stated in cross-examination that she needs help from her mother in relation to arranging her finances, banking and insurance. Trying to manage those items causes her anxiety. She has her own bank account and a credit card. She arranges her various appointments, and she coordinates appointments for her children and in those tasks, she has independent capacity for self-management.
Ms Ploszaj reported that Ms Van Hout has appropriate capacity to make independent decisions for herself and her children, while she is independent with arranging and attending appointments and she has appropriate insight into her decision making abilities. Physical limitations arise because of her continuing challenges of managing incontinence, pain and energy levels. In evidence, Ms Ploszaj confirmed her view that Ms Van Hout has capacity to make decisions for herself and on behalf of her children. Ms Ploszaj considered that Ms Van Hout’s current living situation and the family dynamics are significant factors in her presentation. For example, if Ms Van Hout was able to reside independently it is highly likely that she would be able to learn new tasks, increase her motivation and exercise capacity appropriately for self-management.
Ms Ploszaj reported that reduction in self-management functions may arise out of lack of motivation and some cognitive dysfunction because of psychosocial issues. She considered that physical limitations are present because of the challenges of managing incontinence, pain, and energy levels. She wrote that the type a diabetes causes fatigue and low energy which might cause of Ms Van Hout to perform tasks more slowly and with less motivation. According to Ms Ploszaj, the autonomic neuropathy and gastroparesis causing incontinence and mental health problems and complicating the diabetes, may affect Ms Van Hout’s ability to perform tasks.[60]
[60] Exhibit R2, Functional Capacity Assessment Report of Ms Alicja Ploszaj, pages 39-40.
Ms Van Hout wrote that her NDIS requirements probably come within the category of self-management. In that regard she foreshadowed issues which may occur later in her life if, for example, she lost her drivers’ licence because of problems with eyesight.[61] In her response to written questions she pointed out that she has her own bank accounts which her mother monitors, her mother manages her finances, budgets for her and pays the bills. Most of her money is spent on children, food, and petrol.[62] She emphasised in the access request form that she is grateful for her mother’s support, however she feels inadequate because of her reliance on others to support her and her children.[63] The statementwritten by her mother, [64] Mrs Shirley Van Hout, provides confirmation of the assistance with financial monitoring and support which, in part, also includes financial contributions for private hospital insurance to cover the fees for the insulin pump and consumables which are not covered by the PBS.
[61] Exhibit A1, Applicant’s Bundle of Documents.
[62] As above.
[63] Exhibit R1, T-Documents, T5, page 32.
[64] Exhibit A1, Applicant’s Bundle of Documents.
In closing submissions, Counsel for the Agency emphasised that there is no psychiatric or psychology evidence about lack of cognitive capacity. Deficiencies in self-management, consistently with Ms Ploszaj evidence, arise more out of family dynamics rather than lack of capacity. It is similar to the circumstances arising in self-care, namely that the assistance provided by Ms Van Hout’s mother with regard to finances is part of the family roles.
Also, it was submitted that Ms Van Hout has capacity to make significant decisions regarding her own well-being, an example was a decision regarding eye surgery, and clearly, she is able to organise and make appropriate decisions concerning upbringing and care of her children. While acknowledging that each case depends on its own facts, attention was drawn in support of the Agency submission to the decision of the Tribunal in MRLK v NDIA,[65] in which the applicant had impairments that have some similarity to Ms Van Hout’s impairments with problems involving pain, fatigue and incontinence. The Tribunal was not satisfied in that matter that the access criteria were met and in relation to self-management the weight of evidence indicated that she had cognitive capacity to organise her life, plan and make decisions and take responsibility for herself.
[65] [2021] AATA 3896.
While accepting that Ms Van Hout’s physical impairments cause some reduction at times in some elements of self-management, the Tribunal is not satisfied that the requirement in s 24(1)(vi) of the NDIS Act is met.
Section 24 (1)(c) of the NDIS Act Summary
The Tribunal has considered the factors set out in NDIS Rule 5.8 and is satisfied that Ms Van Hout does not come within any of the sub-paragraphs demonstrating substantially reduced functional capacity. The Tribunal is not persuaded that she has an inability to participate effectively or completely in the relevant activity without assistive technology, equipment, or home modifications. The evidence does not support a conclusion that she usually requires assistance from other people to participate in the relevant activity. She participates in relevant activities and performs tasks or actions without assistive technology, equipment, home modifications or assistance from others.
In this case, in reference to each of the legislative criteria set out in s 24(1)(c) of the NDIS Act and in reference to each of the deeming provisions in Rule 5.8 of the NDIS Rules, the Tribunal is satisfied that Ms Van Hout does not meet the criteria in any of them. Accordingly, the Tribunal concludes that she does not meet the requirements under s 24(1)(c) of the NDIS Act.
SOCIAL OR ECONOMIC PARTICIPATION – Section 24(1)(d) of the NDIS Act
Ms Van Hout’s last employment was 11 years ago. Her incapacity for work is predominantly a result of her physical impairments.
The disability requirement in s 24(1)(d) of the NDIS Act does not require a person's impairment to reduce,substantially their social or economic participation. Rather, the impairment merely needs to affect the person's social or economic participation.
The Tribunal finds that Ms Van Hout meets the requirements of s 24(1)(d) of the NDIS Act, as her permanent impairments affect her capacity for social and economic participation.
DISABILITY REQUIREMENTS - CONCLUSION
As Ms Van Hout does not meet the requirements of s 24(1)(c) of the NDIS Act to become a participant in the NDIS, it is not necessary for the Tribunal to decide whether she meets the criteria in s 24(1)(e) of the NDIS Act.
Ms Van Hout meets the age requirements under s 22 of the NDIS Act and the residence requirements under s 23 of the NDIS Act. She meets the requirements under s24(1)(a), (b) and (d) of the NDIS Act, however she does not satisfy the requirements under s 24(1)(c) . She must satisfy all the requirements in s 24(1) of the NDIS Act in order to meet the disability requirements. Accordingly, she does not fulfil the disability access criteria to become a NDIS participant.
EARLY INTERVENTION REQUIREMENTS
Section 25 of the NDIS Act sets out the requirements for access to the NDIS under the early intervention criteria.
The Tribunal has already determined that Ms Van Hout has a disability attributable to permanent impairments from type 1 diabetes, autonomic neuropathy and gastroparesis within the meaning of s 24(1)(b) of the NDIS Act and the NDIS Rules. It follows that she meets the early intervention requirement under s 25(1)(a) of the NDIS Act for an impairment that is or is likely to be permanent.
Rule 2.5(b) of the NDIS Rules includes the following passage about the rationale for the early intervention requirements as an alternative to accessing the scheme through the disability requirements:
“…a person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person’s impairment over time and the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity.”
Similarly, in deciding whether early intervention supports for Ms Van Hout are likely to benefit her, it is expected that the CEO of the Agency, and now the Tribunal, would consider matters set out in NDIS Rule 6.9 which are:
(a) the likely trajectory and impact of the impairment over time;
(b) the potential benefits of early intervention on the impact of the impairment on functional capacity and reducing future needs for supports; and
(c) evidence from a range of sources including the person with a disability, family members, carers and expert opinion.
The Agency’s Operational Guideline explains that early intervention can be for both children and adults.
Section 25(1)(b) of the NDIS Act - Whether the provision of early intervention supports for Ms Van Hout is likely to benefit her by reducing her future needs for supports in relation to her disability.
The relevant sequence in this matter is the diagnosis which Ms Van Hout received in 1996 when she was 11 years old. It was a diagnosis of type 1 diabetes. Clearly this is not an early diagnosis in terms of her current circumstances. She is now 38 years old. The treatments with her endocrinologist, Dr Terry commenced in 2013. Complications ensued and investigations were conducted by specialists including three gastroenterologists, three endocrinologists and a colorectal surgeon. Investigations included colonoscopy, endoscopy and nuclear scintigraphy. Correspondence from a consultant gastroenterologist Dr Bampton,[66] in January 2016 confirmed that trials were still underway for her type 1 diabetes which was complicated by many issues of which nerve damage was one. It was noted that the process could take some time and involve additional trials for the most suitable treatment to be ascertained. Ultimately these investigations, assessments, hospitalisations, and monitoring have assisted in determining causes of her impairments and treatment for them. Dr Terry confirmed in correspondence dated 7 February 2022[67] that there have been numerous medications which have been trialled to try to control the symptoms of her gastroparesis without side effects, and without success.
[66] Exhibit R1, T-Documents, T4, page 24 (letter written by Dr Bampton's locum, Dr Spizzo).
[67] Exhibit R1, T-Documents, T13, page 52.
The evidence indicates that the insulin infusion pump has provided stability in Ms Van Hout’s glucose levels. However, Dr Terry confirmed that she still experiences unexpected “highs or lows at unpredictable times and therefore requires constant vigilance”; she is now on the most advanced treatment for glucose management; codeine is the only medication to reduce the impact of her bowel disturbances, however it cannot be used regularly and when it is used it results in drowsiness and nausea.[68] She has tried numerous medications and diets without lasting success. Her autonomic neuropathy is the cause of her variable absorption of food, making her prone to frequent hyperglycaemia or hypoglycaemia which requires immediate treatment.[69]
[68] Exhibit R1, T-Documents, T13, page 52.
[69] Exhibit R1, T-Documents, T12, page 51 (Dr Terry letter, 12 November 2021).
In James v NDIA the Tribunal, [70] comprising Deputy President Pascoe, discussed the criteria in s 25(1)(b) for access under early intervention not in terms of an early diagnosis “but rather early in the course of the impairment where early intervention is likely to have a significant impact on the course taken by that impairment”. In that case, the applicant’s disability was autism spectrum disorder. In deciding that the early intervention criteria were not met, the Tribunal noted that while there was evidence of the benefits of early intervention for children, there was no evidence in that case that early intervention in relation to adults would be of significant benefit, no reliable evidence that early intervention would be likely to change the trajectory of the applicant’s condition or reduce his need for future support and no evidence that without early intervention his condition would substantially deteriorate. There was evidence from one expert that there was no benefit to be gained from early intervention at all and no evidence of a need to access supports which were not available through the health system or the community more generally, in the context as well that the applicant was already receiving support through the health system.
[70] [2019] AATA 4248.
In Puster v NDIA the Tribunal, [71] comprising Senior Member Groom, considered whether there must be a close temporal connection between diagnosis and the application for access to supports under the early intervention criteria in s 25 of the NDIS Act. The Tribunal accepted the reasoning of Deputy President Pascoe in James and stated:[72]
“More specifically, the Tribunal accepts that in order to be satisfied that an applicant meets the requirements in sections 25 (1) (b) and (c) of the NDIS Act, it is necessary for the Tribunal to make an assessment of the likely trajectory and impact of the applicant’s impairment over time and the potential benefits for early intervention on the impact of the impairment on the applicant’s functional capacity.
“[67] The Tribunal does not accept the suggestion put by the respondent’s representative that this necessarily requires an assessment in close temporal proximity to a diagnosis, but it does require an assessment at the early stage of the impairment’s trajectory. In this sense, the Tribunal accepts the contention put by the applicant’s representative that in the case of a degenerative condition it may be possible for an applicant to meet the early intervention requirements without a close temporal connection to a diagnosis but where the impairments that flow from the underlying condition can still be said to be at an early stage of their trajectory.”
[71] [2023] AATA 1760.
[72] As above at [66] & [67].
Ms Ploszaj identified potential benefits from therapeutic intervention for Ms Van Hout. In response to the question whether Ms Van Hout’s function and independence would be enhanced, Ms Ploszaj wrote that Ms Van Hout will benefit from the provision of exercise physiology/physiotherapy, occupational therapy/psychology, continence nurse/physiotherapist together with a range of medical interventions.[73]
[73] Exhibit R2, Functional Capacity Assessment of Alicja Ploszaj, page 38.
In more detail, Ms Ploszaj made specific observations about the potential benefits of capacity building supports for Ms Van Hout. Those observations were:[74]
“Exercise Physiology/physiotherapy: Ms Van Hout has not previously been engaged with an Exercise Physiologist however would benefit from such to increase her core strength, stamina and mental health and to assist with the development of a home program she could perform independently.
“Continence Physiotherapy/Continence Nurse: Ms Van Hout has not yet been involved with a Continence Physiotherapist or Continence Nurse. She would benefit from assessment and treatment for her continence issues to develop a strengthening program for her bowel and subsequent management for her toileting and soiling issues.
“Vocational Assessment: by relevant professionals for identification of aptitudes, abilities and interests. Ms Van Hout will also benefit from ongoing support to assist with the development of a CV, identification of appropriate roles and development.”
[74] As above page 26.
Ms Van Hout sees a podiatrist five times per year. She does not consult an exercise physiologist or physiotherapist as she cannot afford it. If she was a participant in the NDIS, she envisages that she would access physiotherapy. In particular, as well, she envisages that she would seek assistance from a psychologist to address her issues of anxiety. She described those issues of anxiety against the background of her dependency on parents, her self-perception of being different from friends and acquaintances because of her health problems which prevent her from working and participating in the community. Those barriers are caused by the unpredictability of her symptoms, their duration and intensity and, perhaps above all else, the unpleasant nature of those problems.
Ms Ploszaj was an impressive witness. Her evidence, her assessment of Ms Van Hout and her report were comprehensive. The Tribunal accepts her evidence that Ms Van Hout is likely to benefit from allied health assessments and supports. In relation to the physical impairments, the Tribunal considers that Ms Van Hout is likely to benefit from physiotherapy and exercise physiology interventions, and continence assessments and treatments. She has not accessed those types of treatments in the past. In the event that she can access them, the evidence indicates that there should be a reduction in her future needs for supports. The Tribunal is satisfied by the evidence that appropriate supports that address the impact of her physical impairments should enhance her functional capacity which, in turn, is likely to be beneficial for her independence by reinforcing and increasing her physical stamina and resilience.
Ms Van Hout’s type 1 diabetes is a long-standing condition. The appropriate treatments for her diabetes together with the treatment for gastroparesis and diabetic autonomic neuropathy have been clarified and consolidated after many years. With that clarification about cause and treatment and with greater clarity about the trajectory of the impairments and their impact, it can be said with confidence that there are potential benefits for her from allied health intervention of the kind which Ms Ploszaj recommends. That intervention is not early in the sense of being proximal to the diagnosis. Far from it. However, it would be an early intervention that follows the finalisation of extensive, protracted medical analyses and assessments. It is also a critical early intervention for Ms Van Hout in the sense of being a new support for her. She applied in 2020 to become a participant in the NDIS when, by that time in South Australia, adults throughout the state had become eligible to apply. In South Australia the NDIS launch was broadened gradually from children to include eventually all adults under 65.
Based on the assessment and recommendation by Ms Ploszaj, the Tribunal is satisfied that early intervention supports are likely to benefit Ms Van Hout by reducing future needs for supports in relation to her physical disability. The Tribunal finds that the provision in s 25(1)(b) of the NDIS Act is met. This finding does not extend to psychosocial impacts. Ms Van Hout did not seek to rely on mental health factors in support of her case.
Section 25(c)(i) of the NDIS Act – whether the provision of early intervention supports is likely to benefit Ms Van Hout by:
(i) mitigating or alleviating the impact of the impairment upon the functional capacity 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’s, including through building the capacity of the person’s carer.

The four criteria in s 25(1)(c) of the NDIS Act are expressed as alternatives so that the level of satisfaction about the provision of early intervention supports must meet only one, but at least one of the four criteria.
The factors which are set out in in NDIS Rule 6.9 are applicable to both ss 25(1)(b) and 25(1)(c) of the NDIS Act and as they are discussed above, they do not need to be repeated here. They apply equally to the consideration of the requirements in s 25(1)(c) of the NDIS Act.
Previously in these reasons, the Tribunal assessed the evidence about the impact on Ms Van Hout’s functional capacities in activities specified in s 24(1)(c) of the NDIS Act. As explained in that context the evidence is sufficient to determine that Ms Van Hout has a reduced functional capacity in activities of self-care. The Tribunal considers that the predominant concerns are within elements of self-care. In all domains the evidence was insufficient to meet the criteria for the disability requirements in s 24(1)(c) of the NDIS Act for a reduction in functional capacity that is substantial. The findings which the Tribunal made in relation to mobility, communication, social interaction, learning and self-management were more in the nature of intermittent difficulties with adverse impacts that are occasional, fluctuating and manageable by virtue of Ms Van Hout’s resilience and coping mechanisms.
In relation to Ms Van Hout’s self-care activities, Ms Ploszaj made several suggestions in her report that included: [75]
·Potential for Improvement in speed and safety should be assessed through trials of assistive technology.
·She would improve her safety and functional capacity with the assessment and trial of prescription equipment, for example grab rails in the bath, toilet and shower and a kitchen stool.
·She would benefit from assessment for suitable domestic equipment such as a robotic vacuum cleaner, lightweight vacuum stick and combined washing machine/dryer.
·Her functional capacity will improve with appropriate rehabilitation services and equipment to address her incontinence and strength.
·A sustainable, achievable routine to manage her diabetes requirements will lead to significant improvements in the way in which she undertakes self-care.
·She has challenges with deconditioning, energy and pain management, and poorly managed incontinence.
[75] Exhibit R2, Functional Assessment Report of Ms Alicja Ploszaj, pages 35 – 38.
Not all of those suggestions by Ms Ploszaj would come within the scope of the NDIS. However, that is not the issue which the Tribunal is required to consider and this point. The issues about funding particular supports and whether or not they are reasonable and necessary arise only after confirmation of access to the NDIS as a participant. At this stage, the Tribunal accepts that Ms Ploszaj’s recommendations are soundly based. The Tribunal accepts that the provision of allied health supports is likely to benefit Ms Van Hout in self-care which in turn could have a positive impact for her in the other activities of daily living.
The Tribunal is satisfied that the provision of early intervention supports for Ms Van Hout meets the requirement in s 25(1)(c)(i) of the NDIS Act as it is likely to benefit her by mitigating or alleviating the impact of the impairment on functional capacity primarily in undertaking activities in self-care. The Tribunal does not discount the likely beneficial effect of allied health treatment through its impact in other areas, namely mobility, communication, social interaction, learning and self-management.
The Tribunal is also satisfied that the provision of early intervention supports is likely to benefit Ms Van Hout by improving her functional capacity in self-care, in accordance with s 25(1)(c)(iii) of the NDIS Act.
Section 25(3) of the NDIS Act whether the early intervention support is not most appropriately funded or provided through the NDIS and is more appropriately funded or provided through other general systems of service delivery or support services.
Section 25(3) of the NDIS Act applies even if the criteria in s 25(1) and (2) of the NDIS Act are met. That is, Ms Van Hout may not meet the early intervention requirements because the supports are not most appropriately funded or provided through the NDIS and are more appropriately funded or provided through other systems or support services.
The Agency’s Operational Guideline provides detail about the services which are most appropriately provided by other general systems of service delivery. They include medical services and treatments for health conditions including chronic health conditions; clinical early intervention mental health supports; clinical acute and crisis mental health supports such as care in a hospital or similar setting; inclusion supports for young children in early childhood learning; assistance and adjustments in disability employment services. While those examples may not be exhaustive or conclusive, they provide useful guidance to the types of services that would be most suitably provided by government and community services.
It was submitted for the Agency that Ms Ploszaj’s recommendations are directed to assisting Ms Van Hout meet her goals rather than relating specifically to her disability.[76] The Tribunal does not agree with that submission. With regard to self-care, the Tribunal considers that the adverse impacts from reduced functional capacity are the consequences of her impairments, they are specific to her disability and the recommended supports are contextualised around that disability and the impact of her impairments. Next it was contended that if s 25(3) of the NDIS Act is engaged, the appropriate services would be through the health care system which could include services under a chronic disease management plan and a mental health care plan. Despite there being little evidence about it, the Tribunal accepts that it could be the case that Ms Van Hout’s “diabetes stress” and its emotional burden could be addressed through a mental health care plan. The Tribunal does not accept that the allied health supports for early intervention are supports which are more appropriately accessed through the health care system.
[76] Respondent's Statement of Facts Issues and Contentions at [38]-[40].
By contrast, the supports which Ms Ploszaj recommended are those which have a primary focus on disability support through allied health services. The Tribunal is satisfied that they are early intervention services which come within the responsibility of the NDIS.
The Agency’s Operational Guideline points out that a NDIS participant under the early intervention requirements is likely to have support needs that will change with the associated likelihood of reduced need for disability supports in the future. Accordingly, the Agency will regularly check eligibility during the reassessment of the NDIS plan and, according to the Agency’s Operational Guideline, at other times as well. This type of assessment and review may mean that with benefits accruing from early intervention supports, a point is reached when the participant no longer needs further supports. At that stage a person’s status as a participant under early intervention might be revoked by the Agency’s CEO under s 30(b)(ii) of the NDIS Act. A person also has the right under s 29(1)(d) of the NDIS Act to notify the Agency that he or she no longer wishes to remain as a participant in the NDIS. These provisions may have applicability in numerous and different types of situations. One such situation could be that the need for early intervention was correctly identified, appropriately supported and successfully implemented so that lifetime support is neither sought nor required.
SUMMARY
In this matter, the Tribunal’s finding is that Ms Van Hout has a disability attributable to permanent impairments arising from type 1 diabetes, autonomic neuropathy, and gastroparesis. She meets the age requirements in s 22 of the NDIS Act and the residence requirements in s 23 of the NDIS Act.
The Tribunal is satisfied that Ms Van Hout meets the early intervention requirements under s 25(1)(a)(i), s 25(b), s 25(c)(i) & (iii) and s 25(3) of the NDIS Act.
DECISION
The reviewable decision is set aside and substituted by a decision that Ms Van Hout meets the early intervention requirements under s 25 of the NDIS Act to become a participant of the National Disability Insurance Scheme.

I certify that the preceding 148 (one-hundred-and-forty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Thompson

......................[sgnd]...................................
Associate

Date of Decision: 29 August 2023

Date of Hearing: 16 May 2023

Representative for the Applicant: Self-represented

Counsel for the Respondent:

Ms Emma Carnell
HWL Ebsworth Lawyers

Date of Decision:	29 August 2023
Date of Hearing:	16 May 2023
Representative for the Applicant:	Self-represented
Counsel for the Respondent:	Ms Emma Carnell HWL Ebsworth Lawyers