Webster and National Disability Insurance Agency (NDIS) - [2025] ARTA 590

Webster and National Disability Insurance Agency (NDIS) [2025] ARTA 590 (20 May 2025)
Applicant/s: Ann Webster
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/8703

Tribunal:General Member J. McAteer
Place:Sydney
Date:20 May 2025

Decision:The Tribunal affirms the decision under review.

........................[SGD]................................................
General Member J. McAteer
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Access to scheme – Spinocerebellar Ataxia and Ataxic Gait Disorder – Bipolar Affective Disorder (Type II) – likely permanency of impairments – whether early intervention requirements met – whether Applicant meets disability criteria – decision under review affirmed
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Barrack Corporation Pty Ltd v the Kara Group of Companies Pty Ltd [2014] NSWCA 395
Beaumont and National Disability Insurance Agency [2024] AATA 891
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11
Foster and National Disability Insurance Agency [2021] AATA 4738
National Disability Insurance Agency v Foster [2023] FCAFC 11
Statement of Reasons
INTRODUCTION

Ms Ann Webster (the Applicant) applied to access the National Disability Insurance Scheme in April 2023. The application was refused in June 2023 with a finding that the Applicant did not meet the necessary criteria to access the Scheme and become a participant in the NDIS. On internal review in October 2023, the decision was affirmed and the Applicant remained excluded from the NDIS. An application was lodged with the Tribunal in November 2023.
The issue to be decided by the Tribunal is whether the Applicant meets the access criteria to be a participant of the National Disability Insurance Scheme (‘the NDIS’ or ‘the scheme’) in accordance with section 21 of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’ or ‘the Act’).
The Applicant is a 61-year-old female who lives with chronic pain arising from spino-cerebellar ataxia and ataxic gait disorder affecting her right leg in addition to a major depressive disorder as set out in greater detail below.
The Applicant lives alone in Southwestern Sydney in a retirement village unit. Prior to moving to the retirement village, the Applicant lived in a granny flat located at her own home which itself was occupied by a daughter, son in law and grandchild.
On 23 November 2023, the Applicant applied for access to the NDIS on the basis of the following reported disabilities:
(a)Major Depressive Disorder and Anxiety, Spinocerebellar Degeneration, Recurrent Dizziness and falls, Peripheral Neuropathy, Ataxic Gait Disorder and Restless Leg Syndrome.
On 26 June 2023, a delegate on behalf of the National Disability Insurance Agency decided that although the Applicant satisfied the age and residency access criteria, they were not satisfied that the Applicant met the disability requirements or the early intervention requirements in sections 24 and 25 of the NDIS Act.
INTERNAL REVIEW
On 29 August 2023, the Applicant requested an internal review of the decision dated 26 June 2023. By way of decision dated 27 October 2023, a different delegate of the CEO conducted a review of the earlier decision and confirmed that decision. In the internal review the Respondent was satisfied that the Applicant met the age criteria / requirements in s 22 and the residence requirements. They were however not satisfied that the Applicant met the disability requirements under s 24.
Section 24 Criteria - disability
In respect of criteria under s 24(a) on impairments the delegate was satisfied that the Spinocerebellar Ataxia, ataxic gait disorder that the Applicant lives with is a disability attributable to a neurological impairment. Likewise in respect of chronic back pain the delegate was satisfied that the Applicant lived with a disability attributable to a physical impairment. In relation to Bipolar Affective Disorder (Type II) with anxiety and depression, the delegate was satisfied that the Applicant lived with a disability attributable to a psychosocial impairment.
However, in respect of vestibulopathy and peripheral neuropathy, the delegate was not satisfied that the Applicant lived with a disability. Insufficient information had been provided by the Applicant to satisfy this criteria. In respect of: GORD, migraine, restless leg syndrome and asthma, the Delegate determined that the evidence provided did not demonstrate that those conditions resulted in an impairment to the Applicant across all life domains.
In respect of permanence, being that the impairments are likely to be permanent, the delegate determine that the criteria had been met for Spinocerebellar but were not satisfied that they were permanent in respect pf Bipolar Affective Disorder (Type II) with anxiety and depression and chronic back pain. The NDIA was unable to make an assessment that the conditions and resultant impairment were permanent.
In respect of Bipolar Affective Disorder (Type II) with anxiety and depression the delegate determined that the evidence did not establish that all of the treatment options had been explored and completed and that impairment has not been optimally treated. A lack of treatment history led to this conclusion. The delegate referred to the need to establish an applicant’s baseline level of functioning before an accurate determination of their functional capacity can be made in respect of NDIS eligibility. In respect of treatment the delegate referred to the need to establish that if there are any recommended treatment options then if they lowered or alleviated the impact of the conditions then they would not be considered permanent.
The delegate found that all treatment options has not been explored and completed. As a result, permanency of impairment had not been established at the time of the review.
In respect of the claim for chronic back pain, the delegate found that the evidence did not address any previously completed treatment, current treatment or future treatment which many have been recommended. As a result, the delegate found that it was not possible to conclude that all available treatment options had been pursued. It was suggested in the reasons that any future application should include a detailed history of treatments undertaken and results and outcomes of reviews etc.
In respect of Criteria (c) concerning functional impact, the delegate was not satisfied that the criteria had been met. They found that whilst there were limitations on the Applicant’s functional capacity, in that adjustments had been made to the manner in which things were achieved, there was insufficient evidence that the Applicant usually needed disability specific support to participate or complete activities in respect of either communication, social interaction, learning, mobility, self-care, and self-management. In this regard the delegate found that the Applicant did not need a high level of support from other people, such as physical assistance, guidance, supervision or prompting, nor did they require assistive technology, equipment, home modifications prescribed by her General Practitioner, or other health / medical professional. The delegate found that the evidence demonstrated that the Applicant’s impairments only resulted in difficulties in completing certain tasks. They found that the evidence of the Applicant’s impairments did not result in the need for a high level of support from other people, assistive technology or equipment and home modifications in order to complete the stated activities and remain safe and independent in the community.
The delegate found that criteria (d) concerning the impact of the disability on a person’s ability to participate was met. However, in respect of whether the disability required lifetime support (Criteria (e)), the delegate was not satisfied. When examining the Applicant’s circumstances, the nature of their long-term support needs and whether the NDIS or some other Government support could best meet their needs, the delegate found that as a result of not meeting criteria (c) concerning functional impact, it could not be said that lifetime support was required on the available evidence.
The delegate concluded that the Applicant’s needs remained best supported through the health system at present rather than the NDIS noting that section 7.5 of the NDIS Rules provides that the NDIS is not responsible for the diagnosis and clinical treatment of health conditions, including chronic health conditions or other activities that aim to improve the health status of Australians, including medical services, and the funding of time limited therapies and treatments.
Section 25 Criteria – early intervention
In respect of the s 25 Early Intervention criteria the delegate found that the Applicant met Criteria (a) impairments concerning Spinocerebellar Ataxia, ataxic gait disorder. However, they were not satisfied that the criteria had been met in respect of the other claimed disabilities of: Bipolar Affective Disorder (Type II) with anxiety and depression and chronic back pain.
The NDIS Guidelines require that the conditions be considered permanent. Relying on the reasoning in the Disability findings under s 24, the delegate found that they could not be satisfied that these conditions were permanent.
Likewise with criteria (b) on reducing future need for support the delegate found that there was insufficient evidence to determine that early intervention supports are likely to reduce future support need in relation to disability.
In respect of criteria (c) on improving capacity, the improvement can be measured by up to four outcomes: lessen the impairment’s impact on (i) functional capacity for communication, social interaction, learning, mobility, self-care or self-management, (ii) prevent the deterioration of functional capacity, (ii) improve functional capacity or (iv) strengthen informal supports, including building the carer’s capacity. The delegate found that the evidence provided did not demonstrate or indicate that early intervention supports would be likely to benefit the Applicant in the manner outlined at (i) to (iv).
As the delegate found that the Applicant did not meet the disability requirements under section 24 or the early intervention requirements under section 25 of the NDIS Act following Internal Review, the Applicant then sought review of the Internal Review decision by this Tribunal pursuant to section 103 of the NDIS Act on 22 November 2023.
The Tribunal held a hearing by video on 4 March 2025 and 5 March 2025. The Applicant was unrepresented in the proceedings. The Agency was represented by Mr Nathan Li of counsel.
In arriving at its decision, the Tribunal has considered the various documents contained in the joint hearing bundle (JHB) which was accepted into evidence. The Applicant filed various documents including a letter of support for Psychosocial Disability from Psychiatrist Dr M Cross, as well as follow up treatment reports from Dr Cross. The Applicant also filed two Impact Statements, a letter from E Tshuma Clinical Nurse Consultant, a Neurologist report from Dr V Patel, and a further Psychosocial Disability report from Dr Mazolumi, Psychiatrist.
The Respondent’s Statement of Facts, Issues and Contentions dated 13 December 2024 was also admitted into evidence. The Tribunal was assisted by the opening and closing submissions of both parties, which were made orally at the hearing. The Applicant was also given the opportunity to prepare brief written submissions which filed and served shortly after the hearing and the Respondent was given a brief time to reply.
PRE-HEARING PROCESS
The matter had significant pre-haring listings before the Tribunal. The relevant matters pertain to a listing on 1 November 2024 whereby the parties agreed to take a hearing date in March 2025 based on their and their witness availability. This process was managed through the issuance of Hearing Certificates providing initially a single hearing date but eventually fixed for a two-day hearing based on mutually convenient dates. On 13 December 2024 the Tribunal noted that the Applicant raised a complaint that she was unable to have Dr Cross available to give evidence. This issue was revisited at the beginning of the hearing on 3 March 2025 whereby the Applicant withdrew her concern in that she elected to proceed with the hearing on 3 March 2025.
There was also an outstanding issue in respect of summons issued on the records of a treating practitioner. That material was only produced during the hearing of the matter and the parties were invited to make post hearing submissions (the timetable for which closed on 31 March 2025) in addition to post hearing submissions that the Applicant sought at the conclusion of the hearing.
A further issue arose in the days prior to the hearing whereby the Applicant sought to have one of her witnesses act as her advocate in the hearing of the proceedings. This matter was initially addressed at the Telephone Case Management Directions on 24 February 2025. The preliminary view was put at that time that the Applicant needed to elect which role she wished for Mr Tshuma (Clinical Nurse Consultant) to perform for the Applicant.
The Respondent referred to a number of decisions of the Courts concerning the inherent conflict of interest in an entity appearing as both a witness and an advocate in proceedings. Reference was made to the NSW Court of Appeal case of Barrack Corporation Pty Ltd v the Kara Group of Companies Pty Ltd [2014] NSWCA 395 whereby Barret JA observed the following in respect of such conflict: At [2] the Court observed:
In relation to the solicitor, Mr Barrack, it is a matter for concern that, according to the part of his cross-examination quoted by Adamson J, he saw nothing untoward in his acting as solicitor for a plaintiff in the initiation and conduct of proceedings in which he knew that he was himself to be that plaintiff's principal witness on factual matters at the heart of the parties' controversy. The terms of the rule of professional conduct which applied at the time and to which his attention was directed were clear. The operative words were "must not" - subject to an "exceptional circumstances" qualification. The purpose of the rule was also clear. It sought to underwrite the practitioner's primary duty to the court as one of its officers concerned in the administration of justice; and, to that end, to eliminate a particular form of influence or interest that, of its nature, might compromise the practitioner's ability to discharge that duty.
Reference was also made to s 66(3) of the Administrative Review Tribunal Act 2024 (ART Act), where the ART Act recognises that leave for representation of a party should not be given when it creates a conflict of interest for the party, or the proposed appointee is not acting in the best interest of the person. In addition, reference was made to the ART Guideline on giving expert evidence. The Guideline states:
Duty to the Tribunal 9. A person giving evidence based on his or her special knowledge or experience in an area: (a) has an overriding duty to provide impartial assistance to the Tribunal on matters relevant to the person’s area of knowledge or experience; (b) is not an advocate for a party to a proceeding.
Bearing in mind that the Applicant wished to rely on the evidence of Mr Tshuma, and if that was the case the Respondent had indicated that they wished to Cross Examine that witness, the Tribunal determined to refuse the request that Mr E Tshuma act as advocate and represent the applicant pursuant to s 66 of the ART Act having regard to the matters outlined above.
LEGISLATIVE FRAMEWORK
The access criteria
As noted above these proceedings concern a review of a decision to refuse access to the Scheme. As set out above applying to the applicant’s stated circumstances the legislative criteria and policy provisions must be met on the available evidence in order to access the Scheme.
To become a participant of the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
As noted from the decision under review, there is no dispute that the Applicant satisfies the age and the residence requirements. What the Tribunal must decide is whether the Applicant satisfies the access criteria in section 24 (‘the disability requirements’) or section 25 (‘the early intervention requirements’).
Section 24 of the Act states:
(1) A person meets the disability requirementsif:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self care;
(vi) self management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
If the Applicant does not meet the disability requirements, the Tribunal must consider whether they meet the early intervention requirements set out in section 25 of the Act which relevantly states:
(1). A person meets the early intervention requirementsif:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has a developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
Under subsection 209 (1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that NDIS rules may prescribe circumstances and criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules in the Applicant’s case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), which form part of the legislative framework.

The NDIS Operational Guidelines are 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.[1] The relevant Operational Guideline at time of the decision under review are: Our Guidelines – Becoming a participant – Applying to the NDIS (1 February 2024)(‘the Access Guideline’).[2]
[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[2] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 February 2024).
The Tribunal also notes that in Mulligan,[3] the Federal Court 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”.[4] The Full Court of the Federal Court of Australia in Foster[5]also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[6]
[3] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’) at [55].
[4] Mulligan at [55].
[5] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’).
[6] Foster at [44].
For the Applicant to gain access to the Scheme, the Tribunal must be positively satisfied that all the access criteria in either the disability requirements or the early intervention requirements are met. The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[7]
[7] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
EVIDENCE AT HEARING
The Applicant referred to her mental health issues as being significant and referred to the material authored by the Mental Health Nurse (Mr Tshuma) and the two Psychiatrist / Psychologist forms, and that these supported her case. In her evidence in chief the Applicant said that she is withdrawn a lot and now spends a lot of time in her apartment and in bed. The Applicant said that she felt isolated and unable to cope.
In cross examination the Applicant said that she moved into the retirement Village in 2022. She does not use the facilities run by Anglicare (who manage the village) and said that she does not attend many of the activities such as Bingo and Trivia as she is too anxious. The Applicant noted that she previously lived in her own residence and eventually moved into the Granny Flat that was constructed at the rear of the residence. The Applicant said that at that time her youngest daughter and daughter’s spouse and the grandchild moved into the main residence. Previously the Applicant had driven the grandchild to school.
The Applicant was asked about an ocean cruise since moving where she confirmed that she travelled on a cruise ship with a female support person. The Applicant said that she became ill on the first day of the cruise and was prescribed anti-biotics by the ship’s Doctor. When the cruise made landfall, the Applicant was admitted to Hospital. After treatment she was not permitted to rejoin the cruise. As a result, the Applicant booked into a bed and breakfast in another country before returning home. She applied for a refund from the cruise company and only achieved a partial refund.
The Applicant was asked whether she was planning a further cruise with some friends. The applicant confirmed that she was planning a cruise with a male and female friend who were former neighbours from when she first moved to Southwestern Sydney after the death of her husband. At page 246 of the Tender Bundle in a letter to the Delegate dated 1 March 2024 the Applicant referred to when she is unwell. The Applicant said that she is now unwell all of the time.
In respect of claims about a lack of appetite it was put to the Applicant that this was due to side effects from the medication. The Applicant said that her doctor had suggested this but on her own assessment she had become lethargic. When she goes shopping now the Applicant advised that she uses a walking stick. The Applicant was taken to her Statement of Lived Experience at page 273 of the Tender Bindle with reference to her daughters visiting her or going to see them. The Applicant advised that her daughter last visited the Sunday prior to this hearing. This was arranged beforehand and usually occurs over one to two hours.
The Applicant said that over a week she does a number of ‘little shops’. In respect of meals, she said that she ‘does not each much’ and had dinner only four times a week. She said that dinner consisted of frozen meals.
The Applicant was taken to the Occupational Therapist (OT) report at page 293 of the Tender Bundle where the NDIS arranged for an independent assessment of the Applicant by an OT. The Applicant said that she did not obtain her own OT report because the cost was prohibitive. The Applicant said that the OT was only there for two hours on one day. In reply to a query that she was appropriately dressed the Applicant said that in effect she made a special effort as she knew that the OT was coming to her home. She said that in that sense and many others the OT report does not show the full picture.
The Applicant was asked about how she manages going to the shops independently. She said that she uses her walker to move groceries from her car to her home. She drives her car to the shops and uses the shopping trolley to take her groceries from the store to her car. The Applicant said that she would get dressed for any appointments as she cannot spend all day in her pyjamas.
The Tribunal inquired of the Applicant about her late husband. The Applicant clarified that he was deceased in 2021 and in 2022 she moved into the retirement village. Her former residence was a three-bedroom house with a two-bedroom Granny Flat. The Applicant confirmed that she uses a walker when she had to walk further than a short distance but does not use it very much. The Applicant said that when she was in the Granny Flat she would just walk up to the main residence when she needed assistance.
In response to the Tribunal’s question the Respondent sought some clarification from the Applicant about why she left the Granny Flat. The Applicant said that she left because she was struggling to maintain it, let alone maintaining the main residence. The Applicant also clarified to the Respondent how many days a week she would consider that she was dressed appropriately. The Applicant said that it was approximately three days out of seven when she had appointments or some related reason.
Mr Tshuma’s evidence
Mr Tshuma was asked about whether on his general training he was taught about Spinocerebellar Ataxia. The witness said that he is an expert in mental health not that physical condition. When asked whether he could comment on the condition the witness said that he could, but that he was not an expert. When asked whether he agreed that he could not comment on the condition the witness disagreed and stated that he should have had notice that he was required to answer questions about the condition. In respect of the stated Vestibiloposy the witness did not accept that as he was not trained about that condition there were limits on what evidence he could give about it.
The witness said that the Applicant had an ‘umbrella condition’ of neurological conditions whereby Spinocerebellar Ataxia and Restless Leg syndrome came under that umbrella of neurological conditions.
The witness was taken to page 255 of the Tender Bundle whereby from 253 he had completed the NDIS Evidence of Psychosocial Disability Form on behalf of the Applicant. He was asked how a limping gait, falls risk and use of a walking stick is connected to an inability to initiate conversations and where in the report did he explain the distinction between these physical matters and social interactions. The witness said that the Applicant’s specialist who looked after the psychological aliments then referred the Applicant to him. (The Tribunal noted at this point in the evidence that the physical ailments might have a flow on low self-esteem factor as well as the general need to establish a possible connection between the physical and psychological aspects).
The witness talked about his registration with AHPRA (Australian Health Practitioners Regulation Agency) and said that in such a context it is assumed that a person has all of the necessary training in connection with the relevant physical condition. The witness clarified that where there is a physical condition present with a mental health condition, it exacerbates the mental health impact.
The witness was asked whether the Applicant had told her anything about the ocean cruise and the subsequent booking to Canada and Alaska and if so, why they had noted in respect of self-management that the Applicant finds everyday tasks to be overwhelming. The witness could not remember anything about the cruise trip however he noted that he recalled that the Applicant went on a cruise trip in June or July 2024.
The witness was also taken to page 220 of the Tender Bundle whereby he wrote a report concerning the Applicant. Under the heading ‘Social Interaction’ the witness had recorded that the Applicant ‘…will isolate herself and find it challenging connecting with others. She experiences a lack of interest in social activities’. The witness said that the comment was based on observation of the applicant and self-reporting. He did not include any psychological assessment in his findings.
In re-examination the witness clarified that his medical qualifications were requested from him by the Respondents to understand the basis of his findings and assessments. The witness said that since qualifying in 1999 he had worked in the full range of nursing environments including emergency work, nursing homework and regional hospitals and a metropolitan private hospital.
Evidence of G Streeton (OT)
Mr Streeton the Occupational Therapist (OT) adopted his report dated 16 August 2024 in evidence in chief. In respect of [32] of that report he agrees that he undertook a two-hour assessment but spent longer considering the matters he identified in the assessment. He needed to apply those observed and assessed matters to his knowledge as an OT which takes longer than two hours.
The witness said that in his experience subjects often have good and bad days with fluctuating capacity. The witness advised that the Applicant had stated that the day of the assessment was an average day for her.
The witness noted that the Applicant lived in a small environment meaning a small physical area so the assessment did not take as long as some other assessments might take to complete. His focus was to look at assessing the Applicant’s ability to care for herself in the home.
When asked whether noting his error in believing that the applicant had two grandchildren of the same gender, he would have changed his overall opinion on knowing that she had a grandson and granddaughter the witness said there would be no change to his overall opinion.
In respect of the Applicant’s ability to carry out grocery shopping and lift bags the witness said that his comments recorded at item (e) (iii) on page 19 of his report was an estimate based on what the Applicant had told him, in that she was limited to carrying and lifting a light grocery bag in each hand with a 7.5 kilogram total. He said that the grocery bag contents were explained to him during the assessment and consisted mainly of frozen foods.
The witness said that they would accept the proposition that the Applicant struggles with cleaning. The witness noted in preparing his report that the Applicant said that she had difficulty getting down to clean the shower etc. At page 12 of the report reference is made to the Applicant mopping and vacuuming her own floors and cleaning the bathrooms. In respect of the lower areas in the shower they tend to be neglected because the Applicant ‘finds it difficult to bend over for sustained periods due to poor balance’. The witness said that the Applicant had advised him that she ‘paced herself’ with these duties, not rushing to minimise any falls risk.
The witness was taken to the aspects of his report which dealt with the WHODAS 2.0 (World Health Organisation Disability Schedule). The Applicant’s score in respect of current level of functioning under the WHODAS was 51.8%. The witness noted in his report that the Applicant’s self-assessment scores were inconsistent with her presentation during the OT assessment (the functional assessment) and indicated a self-reported score showing a greater level of difficulty contrasted with the clinician’s scoring of the Applicant.
The witness said that he administered the WHODAS as it has similar criteria to those applied by the NDIA to applications to join the Scheme.
In cross examination the witness was asked whether he observed the Applicant showering shopping, mopping floors cleaning floors washing dishes or putting things in and out of the boot of her car. The witness said that he did not observe most of these things but could not recall whether he saw the Applicant lifting items.
The witness weas asked a number of other questions concerning his report. When asked whether there were other assessment tools that could have been utilised, he advised that he also utilises the Lawton’s Instrumental Activities of Daily Living Assessment Tool (IADL).
The witness also confirmed his evidence in evidence in chief concerning the error concerning Grandchildren and confirmed that he had corrected his report.
The witness was asked whether two hours was in his view sufficient time to conduct the assessment. The witness answered that sometimes it can be but often it is not enough time. He confirmed that in the Applicant’s case the time was sufficient. There was only a small habitable area and only one occupant. The maximum time he would ever spend on site was three hours, but this was once exceeded due to communication challenges with the specific subject. Much of the assessment occurs when he writes up the report which is outside of that time period. When asked who paid for the report the witness conformed that the NDIS (Respondent) had paid for it. The witness confirmed that he had done hundreds of similar assessments and reports in his career.
In re-examination the witness was asked about the Lawton’s assessment (IADL). The witness said that had he used the IADL the Applicant would have scored as ‘less disabled’ on the relevant scale.
The assessment actually undertaken is a 36-item assessment where the witness said that a participant reads each of statements and choses the most appropriate multiple-choice answer to apply. The witness said that the self-assessment does not operate to ‘override’ the clinician’s assessment but that he utilises aspects of it sometimes.
Written Evidence
The Respondent referred to material produced under summons that they wished to tender. From the summons material for reports (including a letter in support of access) from Dr M Cross Psychiatrist were relied upon by the Respondent. The Tribunal has set out this evidence because Dr Cross was not available to give evidence at hearing.
Dr Cross’s reports noted a number of positive and less positive developments. In June 2024 there was greater engagement socially by the Applicant in her community than previously as well as involvement in the broader family environment. Reference was made to the cruise trip to Canada and Alaska. In August 2024 Dr Cross reported ‘severe and persistent mental illness with accompanying complex social and physical health needs’. Reference was made to the Applicant’s admission to Ramsay Macarthur Clinic over the past 8 years. Dr Cross made reference to the physical and psychiatric conditions being medicated. Dr Cross opines that the Applicant’s mental health diagnosis severely impact of the Applicant’s ability to function at home, and in the community.
The report refers to the functional impact of the Applicant’s social interaction. At page 3 of that report reference is made to the Applicant being significantly isolated since her diagnosis and difficulty maintaining relationships. Reference was made to the Applicant’s lack of confidence in knowing how to improve her social situation. Dr Cross opines that the Applicant would benefit from health and fitness support to improve physical health but to also give the Applicant an opportunity to interact with others and form relationships. Reference was also made to the functional impact attributable to the side effects of medication, being weight gain, lethargy and frequent periods of hunger. Impairments with memory, concentration and attention were evident. Practical measures such as day programs, exercise, a lack of skill to prepare healthy meals addressed by assistance with meal preparation and delivery would in Dr Cross’s opinion assist with the Applicant’s safety as multiple input / stovetop cooking, and appliances may have a safety impact for the Applicant.
In December 2024 Dr Cross reports that the Applicant is not socialising at the residential village, ongoing family issues unrelated to the Applicant’s disabilities but still a stressor, as well as undergoing back surgery. In January 2025 Dr Cross reports that the telehealth addressed family concerns (unrelated to the Applicant’s disabilities), as well as discussing migraines. The Applicant reported that she is still not really socialising at the retirement village but was enjoying her dog as well as reference to a further cruise in July with friends.
Dr Mazolumi who completed an evidence of Psychosocial Disability Form for the Applicant in Match 2024 outlines significant impairments that cumulatively ‘rendered her to have significant difficulties in independent living skills’. Reference is made to the Bipolar Affective Disorder, Depression and Generalised Anxiety Disorder creating symptoms and impacts such as psychomotor retardation leading to apathy and difficulties in independent living skills, and poor concentration and memory leading to the Applicant failing to communicate at the same level as her peers thus causing isolation. These matters subsequently impact on self-care and self-management.
The Applicant’s Statement of Lived Experience refers to her routine with her worst days the Bi-Polar 2 means that she only leaves the bedroom to take medication. Going to the shops depends on how the Applicant feels on a particular day and cleaning floors and the bathroom down low is difficult due to dizziness and the back pain. Reference is made to hoping for help with the housework and that the depression and anxiety impacting on social interactions and to what extent the Applicant can achieve goals on any particular day. The Applicant concedes that she always found it difficult to make friends with her mental health issues.
The Applicant concedes that she can mobilise in her home effectively as it is now on one level and well set out. Reference is made to a couple of falls inside the apartment due to loss of balance. Reference was also made to issues preparing meals and that when she is unwell the Applicant finds it hard to eat healthy meals as she is drawn to only eating snacks. In summary refence is made to the difficulties in motivation at home due to the mental health diagnosis as well as difficulties socially interacting due to those diagnosis. The physical diagnoses raise issues with the Applicant’s ability to easily or effectively complete ADL’s, as well as limitations on her ability to maintain independence in the community to the same level as others such as for extended an time.
In written post hearing submissions, the Applicant raises complaints concerning the Tribunal’s ruling against Mr Tshuma being her advocate. Other matters raised concerned a view as to how the Tribunal would be weighing the written evidence of witnesses (some of which did not attend the hearing and were not cross examined). Criticisms were also made of the approach taken by Counsel for the NDIA at hearing. Much of the evidence was revisited by the Applicant in written submissions as well as conveying that the hearing was an overall adverse experience. In closing the Applicant submitted that she wanted access granted to the NDIS for her main condition being: Bipolar with Anxiety and Depression. She submitted that she had a significant impairment for that disability demonstrated by the evidence of Mr Tshuma, two Psychiatrists (Dr Cross and Dr Mazolumi).

The Applicant submitted that the OT report of G Stretton should be ‘dismissed’ by the Tribunal because he ‘does not have mental health experience and cannot be relied upon for my Psychosocial impairment.’ The Applicant also submitted that access to the Scheme should be grated on the basis of her Spinocerebellar ataxia and Ataxia gait disorder and to apply her impact statement rather than the OT report.
Respondent’s Submissions
The Respondent referred to their Statement of Facts, Issues and Contentions and submitted that at the close of evidence nothing needed to be abandoned or qualified from that. Reference was made to [17] - [20] of the Streeton (OT) report noting that the Applicant has the ability to determine appropriate dress when meeting persons in particular situations (such as presenting to a clinician). Further they are able to socialise with friends noting at [29] the evidence and also that the cruise was undertaken. The Respondent submitted that the self-perceived functional impairment (from the self-assessment) is not something that conclusions should be drawn from, but all of the evidence. Pages 9-12 (inclusive) of the OT report establish the relevant findings of the functional assessment. The Respondent submitted that the applicant’s ability to use a walking stick when outside establishes that for physical matters she does not meet the threshold of substantially reduced capacity.
Reference was made to the case of Beaumont and the National Disability Insurance Agency [2024] AATA 891 where at [99] the Tribunal observed that:
99. However, the Tribunal is satisfied that Mr Beaumont has the underlying ability and personal skills to socially interact. There is no evidence that the Mr Beaumont has difficulties in behaving within the social limits accepted by others or an inability to understand social cues. He maintains relationships with his wife, children, and members of his local Buddhist community. It appears that he interacts regularly and appropriately with various members of his treating team and attends on the pharmacist or local shops by himself about once per week without cause for concern about his interactions. He also engaged appropriately with Ms Newton, Dr Shemer, Mr Kenneally and the Tribunal in relation to these proceedings. For these reasons, the Tribunal finds that rule 5.8 does not apply as he does not require assistive technology, equipment or assistance to socially interact. Further, the evidence does not support a finding more broadly that Mr Beaumont has a substantially reduced functional impairment with respect to social interaction.
In this context the Respondent submitted that it was open to the Tribunal to find that there was no lack of capacity in respect of the Applicant’s communication and interaction with others.
The Respondent submitted that a reduction in functional capacity does not equate to a lack of optimal performance. The Respondent submitted that the Applicant’s ability to book the cruise, obtain a refund and insurance payout, even with some assistance was not necessarily an easy feat. Reference was made to the self-care identified in the OT report concerning: showering and bathing, dressing, eating, toileting, maintaining physical health and managing medication. The Applicant had reported that she was able to complete these self-care tasks and cleaning was the only areas where she experienced any difficulty. Her lifting capacity was sufficient to be able to manage the typical items in a shopping trip.
Reference was made to the case of Foster (Foster and National Disability Insurance Agency [2021] AATA 4738) as authority for the proposition that a person’s inability or deficiency in one domain does not equate to a substantial reduction in functional capacity. It was submitted that based on the Applicant’s own reporting to the OT there was no need to observe her engaged in personal care (such as showering). In addition, whilst the OT did not observe the Applicant shopping it was not relevant as the outcomes were based on an assessment of her own evidence, being that she shops independently driving her Corolla sedan to and from the shops alone. The respondent submitted that it would be unsafe to make any findings as to self-care abilities based on a consideration of meal purchases by the Applicant.
The Respondent referred in submissions to pages 85-80 of the tender bundle whereby in an earlier October 2019 request to join the Scheme the Applicant’s form noted ‘No does not need assistance’ to the criteria of: Communication, Social Interaction, Learning, Self-Care and Self-Management. Now three years later the Applicant had applied on the basis that she was impaired. The Respondent noted that should be contrasted with the evidence of impairment only in the area of bending down low.
The Respondent submitted that the evidence of Mr Tshuma should be given little weight because there were little or no clinical observations undertaken and included in his material. They submitted that the evidence did not go very high in respect of how his opinions are given for the physical impairments. A matter that was contentious during cross examination, the issue of a person’s gait being linked to an inability to initiate conversations, was again raised. It was submitted that there was no meaningful evidence to support such a proposition in this instance and that there was no evidentiary basis to give that opinion. This was reiterated in post hearing written submissions.
The Respondent submitted that Mr Tshuma’s evidence should be viewed as the evidence of someone who was advocating for the Applicant and that despite the Tribunal’s ruling, he continued to present his evidence as an advocate.
In closing the Respondent admitted that there was no basis in law to discount the evidence of Dr Cross merely because his evidence had not been tested by cross examination, but to note that it had not been tested. They noted that the hearsay evidence about the cruises had since been corroborated.
The Applicant was allowed to make brief oral submission after the Respondent, noting that orders were also made for written submissions as per [78] – [79] above. The Applicant submitted that she had two disabilities, the Bipolar and the Spino-Cerebellar Ataxia. The Applicant submitted that they did not believe that the OT’s report was accurate.
The Applicant reiterated that she had wanted Mr Tshuma to speak to the mental illness aspects and was concerned that her mental health had not been significantly discussed during the hearing. The Applicant submitted that the OT was able to observe that she struggled with the cleaning. Various complaints were made that the pre-hearing and hearing processes were one sided and that nobody had seen or observed when she was at her worst. Submissions were also made that Dr Cross was booked out when the matter was set down, however noting that she agreed to taking the hearing dates. Various further submissions were made in the nature of evidence concerning her daily situation and circumstances.
CONSIDERATION
The Tribunal notes that the Respondent accepts that the Applicant meets disability requirements of (a) an impairment resulting from Spinocerebellar Ataxia and Ataxic Gait Disorder and that they accept that the Applicant lives with a neurological impairment reported to result in the Applicant having a limping gait and tendency to falls. Additionally, they accept that the Applicant meets the disability requirements in respect of (b) an impairment resulting from chronic back pain and that the Applicant lives with an impairment attributable to a physical impairment causing an inability to bend for sustained periods. Further the Respondent accepts that the Applicant meets the disability requirements of (c) an impairment resulting from Bipolar Affective Disorder (Type II) with anxiety and depression and that they accept that the Applicant lives with an impairment to which psychosocial disability is attributable where the impairment resulted in sustained periods of Hospital treatment prior to 2021 which had subsequent physical flow on effects.
However whilst acknowledging the disability requirements of s 24 (1) (a) of the NDIS Act, the Respondent maintained their position at hearing that the evidence did demonstrate that for Spinocerebellar Ataxia and Ataxic Gait Disorder, the impairments were likely to be permanent, this was not the case for the other disabilities including Bipolar Affective Disorder (Type II) with anxiety and depression. As a result, s 24(1)(b) was not met for Bipolar Affective Disorder (Type II) with anxiety and depression but only met for Spinocerebellar Ataxia and Ataxic Gait Disorder.
The other accepted disability condition of including Bipolar Affective Disorder (Type II) with anxiety and depression was not seen as permanent. Noting the NDIA requirements that there be no known, available and appropriate clinically based medical or other treatment that would be likely to cure the impairment, the Respondent submitted that position had not been reached in respect of the Applicant’s mental health. Whilst the reports of Dr Cross provide an update, they do not explain whether there are any remaining treatment options available in addition to the medications listed at page 24 of the Tender Bundle.
Mr Tshuma’s Psychosocial Disability Form outlines that the Applicant is adequately treated with psychological and pharmacological treatments. Current treatment is referred to as maintenance and relapse prevention. The Tribunal notes that even if the disability of Bipolar Affective Disorder (Type II) with anxiety and depression was considered permanent it would require evidence of substantially reduced functional capacity for meeting the s 24 requirements.
Further the crux of the adverse decision concerning the Applicant rested on the finding that whilst the Spinocerebellar Ataxia and Ataxic Gait Disorder disability was likely to be permanent, and that it resulted in some reduction in functional capacity, in those domains, the Respondent maintained that her functional capacity was not substantially reduced in any of her stated activities as a result of the diagnosis.
The Tribunal notes that the Applicant’s impairments do result in some reduced functional capacity. The issue concerning squatting, bending or stooping to clean down low is clearly referenced in the OT report. These matters would appear to meet some of the s 24(1)(c) criteria concerning the activities of mobility, and self-management / self-care. The issue being does this equate to substantially reduced functional capacity. Consistent with the decision in Mulligan substantially is taken to carry a high threshold and not intended to enliven support to all persons with a disability.
Rule 5.8 of the National Disability Insurance Scheme (Becoming a participant) Rules 2016 sets out when an impairment results in substantially reduced functional capacity to undertake relevant activities. The Rule provides that they are unable to participate effectively or completely in the activity (including performing tasks), the person usually requires assistance, or the person is unable to complete the tasks or actions even with assistance.
Self-Care / Self-Management
Self-care is taken to mean – personal care, hygiene, grooming, eating and drinking and health. It also includes how one gets dressed, showers, bathes and goes to the toilet. The OT Mr Streeton observed the Applicant was appropriately dressed. Whilst there was evidence from the Applicant (both written and oral) that this situation does not always arise and that she had in essence made an effort because Mr Steeton was coming, that does not mean that with some motivation a similar outcome could be achieved for other appointments. The impact of the Applicant’s mental health appears to diminish her day-to-day functioning including how often she dresses appropriately or stays in bed in her sleepwear. The Applicant reported to the OT that she was able to shower herself utilising a shower chair. Whilst the Applicant reported that she completes tasks slowly the evidence was that she was able to complete all self-care tasks including change of clothes and grooming. Limitations on bending over for prolonged periods dd not prevent picking items up off the floor or ground.
In regard to self-management, in respect to cleaning, the best evidence is that the Applicant had reported that she was able to complete self-management tasks and cleaning was the only area where she experienced any difficulty. In respect of the lower areas in the shower the Applicant had reported to the OT that they tend to be neglected because the Applicant ‘finds it difficult to bend over for sustained periods due to poor balance’. The OT reported that the Applicant had advised him that she ‘paced herself’ with these duties, not rushing to minimise any falls risk.
The deeming provisions of the Rules as clarified in National Disability Insurance Agency v Foster [2023] FCAFC 11 clarifies that the provision that an ability to undertake a single task effectively or completely does not mean that the provision applies to the entire activity to be assessed. Mr Streeton’s report states that ‘the Applicant finds it difficult to bend over for sustained periods due to poor balance. In respect of the domain of cleaning (self-care / self-management) this evidence in the Tribunal’s view demonstrates that the Applicant can still participate in the activity of cleaning, albeit with some difficulty when caning down low.
The OT reported that the Applicant makes all of her own decisions independently and was appropriately able to make such decisions. In this regards it appears that the Applicant is adequately able to manage her person. Whilst her mental health and physical impairments impact the efficiency with which the Applicant is able to complete self-management tasks, there is limited evidence that the disability impacts this area in a significant way so as to result in a substantially reduced functionality. Holiday cruises were arranged and attended, noting that assistance from a travel agent or travel companions was utilised. In addition, relocating from her residence to a retirement village all occurred in an orthodox manner.
The OT also reported that the Applicant was able to purchase all necessary items from the supermarket and prepare and cook simple meals. There were no issues with budgeting and managing money when she was not unwell and Hospitalised. Laundry tasks were also completed as was cleaning with the slight limitations referred to above. Whilst there was evidence of lethargy, low motivation and other matters potentially linked to the Applicant’s mental health diagnosis, there was no evidence that these matters substantially reduced the Applicant’s functionality in this area. In the Tribunal’s view the Applicant maintains the ability to organise her life, to plan and make decisions and take responsibility for herself. Whilst the disabilities impact on the applicant’s abilities, these impacts do not substantially reduce the Applicant’s functionality in this area.
The Tribunal agrees with the Respondent’s submission that Mr Streeton’s opinions, a qualified Occupational Therapist observing the Applicant in her environment and assessing her, is of greater weight that the opinion of the treating General Practitioner or the career.
Mobility
In respect of mobility Mr Streeton observed the Applicant to mobilise in the home safely and independently. Transfers were completed successfully, and the use of a walker was recommended for when the Applicant was in the community. The Applicant’s own reporting was that she was able to drive to and from the shops and walk up to 30 minutes when performing those tasks. She also reported that she could catch public transport.
Noting this evidence the Tribunal finds that the Applicant’s mobility is not significantly impaired and as a result her functional capacity in this area is not substantially reduced,
Whilst accepting the Applicant’s evidence of her difficulty in mobilising, the evidence in the OT report does not demonstrate a substantial reduction. She mobilises independently, completes all transfers and whilst there are balance problems, there is a manageable strategy for dealing with those issues. Whilst the disabilities impact on the applicant’s abilities, these impacts do not substantially reduce the Applicant’s functionality in this area.
Social Interaction
Mr Streeton the OT reported that the Applicant was in daily telephone contact with two close friends. One of those friends is seen (face to face) on a weekly basis. He noted that the Applicant was able to engage in conversation with him during the assessment process and respond to his questions appropriately.
Evidence adduced at hearing indicated that the Applicant has social interactions with family that are orthodox in nature. Her contact is fairly regular. Whilst some individual stressors were identified as impacting on relations with the broader family such matters are unremarkable in that (a) they commonly occur in families and (b) there was little evidence to indicate anything to the contrary. There was no link apparent that such relationship quality issues were related to claimed disabilities.
The Applicant did report to the OT that she is reluctant to engage in social activities within the retirement village. However, some of the lack of engagement in undertaking social activities was due to anxiety when doing things where there are people that she does not know. Other evidence from Mr Tshuma confirmed difficulties initiating conversation, however charities were provided the Applicant to assist with support to access the community. The Applicant’s own evidence was that she was in contact with three of her friends one being only by phone due to distance. She also confirmed contact with her two daughters and family during the week but will only see them in person if she was ‘having a good day’.
The Applicant indicated in her written and oral evidence that she moved from the main residence to the granny flat, and then into the Retirement Village. Some of these lifestyle changes took place in the period following the death of her husband. These changes were necessitated in part due to physical limitations, (reference in evidence to not being able to keep up with the cleaning of the Granny Flat let alone the main residence). Access to some of her family is clearly impacted by these decisions of the Applicant. However, as per the evidence referred to above at [107] the Applicant continues to have regular contact with her family.
The Tribunal finds that whilst the Applicant experiences a reduction in her capacity to engage in social interaction, there has not been a substantial reduction in functional capacity in this domain as a result if the impairment caused by her disabilities.
Learning and Communication
The Applicant reported that her mental illness impacted on her cognition. Matters such as poor concentration, memory loss and the ability to comprehend information were raised. The OT noted that the Applicant was able to independently complete the WHODAS self-assessment and was clear in her speech and provided consistent verbal answers to his questions.
The Tribunal was unable to glean any evidence of probative value concerning communication difficulties. Noting the NDIA operational guidelines there was no evidence of any significant difficulty communicating. Whilst the Applicant required significant breaks during the hearing and sought to have an agent appointed as her advocate, these matters even if attributable to her disabilities do not demonstrate a substantially reduced functional capacity in respect of communication. The Applicant answered all questions put to her in cross examination and was able to effectively clarify matters with the Tribunal orally. Whilst she may have had some assistance with preparing her case and written material this was not supported by evidence. In any event the inability to conduct litigation without a level of professional support is not of itself indicative of a substantially reduced functional capacity in learning and communication.

Whilst the disabilities impact on the applicant’s abilities, these impacts do not substantially reduce the Applicant’s functionality in this area. In this regard the stated permanent disability of Spinocerebellar Ataxia and Ataxic Gait Disorder has not traversed s 24 (1) (c) of the NDIS Act. Whilst Bipolar Affective Disorder (Type II) with anxiety and depression was not seen as permanent it has also been considered in the s 25 (c) functional domains.
Section 24 is conjunctive and cumulative in that the provisions in each subsection builds on the one before. Because of the position that no impairment has sufficiently traversed s 24 (1) (c) concerning substantially reduced functional capacity, the Tribunal deals with the remaining s 24 provisions in less detail.
Section 24 (1) (d) concerning the impairment affecting the person’s capacity for social or economic participation and (d) the person is likely to require NDIS support for the rest of their lifetime are not enlivened if subsection (c) is not adequately traversed.
The Respondent submitted that the two accepted disabilities (Spinocerebellar Ataxia and Ataxic Gait Disorder and Bipolar Affective Disorder (Type II) with anxiety and depression did affect the Applicant’s capacity for social or economic participation. The Tribunal agrees with this position in the available evidence but notes the matters observed at the paragraph immediately above.
In respect of the need for NDIS support for the rest of the Applicant’s life (s 25(1) (e), the Respondent submitted that the Tribunal should adopt the reasoning in Foster where the Court observed that one of the focuses of the Scheme is support persons appropriately and to not provide support where that support can be adequately met or provided by other systems. The Court linked this question and the answer to being whether an analysis of the s 24 (1) (c) criteria applied to the support being needed to improve or assist with substantially reduced functional capacity in those domains. This the Tribunal observes is one of the purposes of the Scheme.
Evidence on this criteria was somewhat limited with most of the Applicant’s case focusing on the establishment of the disabilities and their subsequent impact. The Respondent submitted that supports would more appropriately be available through other general systems of service delivery as part of a universal service obligation.
Early Intervention requirements s 25.
In respect of s 25 (1) (a) the Tribunal accepts that the Applicant’s impairment from Spinocerebellar Ataxia and Ataxic Gait Disorder are permanent and meet that criteria. However, in respect of s 25 (1) (b) there is little evidence to indicate that early intervention will reduce the Applicant’s need for future support arising from this disability.
The Tribunal notes that the available evidence from the Applicant does not address this criteria and provide a position on whether the provision of supports now would reduce the Applicant’s need for continued support in the future.
The OT report at page 309 of the Joint tender Bundle outlines that the continued use of existing supports (the four wheeled walker) will reduce the need for future support by reducing the Applicant’s falls risk. Little other evidence was available with the OT noting that current supports assisted. There was a lack of any understanding of what future supports under the NDIS might look like, in part because evidence and submissions had not been provided in that regard. However, the Tribunal does note that assistance with cleaning might be relevant for the Applicant’s immediate support needs. This issue however does not meet the early intervention requirements as there remains no evidence as to how the condition might progress over time. At present short stints of bending and stooping are possible and the Applicant gets by. For the early intervention criteria to be enlivened on this sole issue, there would need to be evidence that limiting the Applicant’s future movements would have a substantial impact on the progression of her diagnosis in respect of Spinocerebellar Ataxia and Ataxic Gait Disorder.
In this regard the Tribunal finds that the s 25 criteria are not met on the available evidence.
Matters arising
During the hearing the Applicant appeared significantly concerned with the manner that the Respondent ran their case and expressed a view that the Tribunal was not focused on her mental health elements of her claim to access the Scheme. The Tribunal notes that the Respondent accepts that the applicant has disabilities in the two areas identified at [8] above being that they were satisfied that the Spinocerebellar Ataxia, ataxic gait disorder that the Applicant lives with a disability attributable to a neurological impairment. Likewise in respect of chronic back pain the delegate was satisfied that the Applicant lived with a disability attributable to a physical impairment. In relation to Bipolar Affective Disorder (Type II) with anxiety and depression, the delegate was satisfied that the Applicant lived with a disability attributable to a psychosocial impairment.
The issue however concerned whether some of the impairments were permanent, and in particular whether the Applicant has substantially reduced functioning in those areas across any of the five stated domains. On this basis there was no requirement to adduce further medical evidence concerning the Applicant’s mental health condition (Bipolar Affective Disorder (Type II) with anxiety and depression). It was open to the Applicant at hearing to provide further information but the Tribunal notes that the statement of lived experience and post hearing submissions are before the Tribunal in that regard. Despite the complaints of the Applicant, there is, in the view of the Tribunal sufficient material to determine whether the Applicant meets the necessary requirements of s 24 (1) (a) – (e) inclusive having regard to her evidence and material and that of the Respondent.
CONCLUSION
In the current application, for the reasons outlined above the Tribunal is not satisfied that the Applicant meets the s 24 or section 25 criteria under the NDIS Act. In that regard the Applicant does not satisfy the requirements of a person to become a participant in the NDIS.
DECISION
The Tribunal therefore affirms the decision of the Respondent dated 27 October 2023 in accordance with s 105(1)(a) of the Administrative Review Tribunal Act 2024.

Date(s) of hearing: 4 & 5 March 2025

Date final submissions received: 7 May 2025

Advocate for the Applicant: Mr E. Tshuma

Counsel for the Respondent: Mr N. Li

Solicitors for the Respondent: Mr P. Snell, Moray & Agnew

Date(s) of hearing:	4 & 5 March 2025
Date final submissions received:	7 May 2025
Advocate for the Applicant:	Mr E. Tshuma
Counsel for the Respondent:	Mr N. Li
Solicitors for the Respondent:	Mr P. Snell, Moray & Agnew