Williams and National Disability Insurance Agency - [2021] AATA 3383

Williams and National Disability Insurance Agency [2021] AATA 3383 (20 September 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/6333
Re:Julie Williams
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:20 September 2021
Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
..............................[sgd]..............................
Member W Frost
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – learning disability – chronic inflammatory spondylarthritis – anxiety – depression – chronic fatigue syndrome – whether impairments result in “substantially reduced functional capacity” to undertake any one or more specified activities – whether Applicant meets early intervention requirements – access criteria under sections 24 and 25 National Disability Insurance Scheme Act 2013 not met – decision affirmed
Legislation
Administrative Appeals Tribunal Act s 43
National Disability Insurance Scheme Act 2013 ss 3, 18, 20-21, 24-25, 28, 100, 103, 209
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Howard and National Disability Insurance Agency [2019] AATA 2
Madelaine and NDIA [2020] AATA 4025
Mulligan v National Disability Insurance Agency [2015] FCA 544
Mulligan and NDIA [2015] AATA 974
REASONS FOR DECISION
Member W Frost
20 September 2021
INTRODUCTION

The Applicant, Ms Julie Williams, is 56 years old. She has been diagnosed with a learning disability, chronic inflammatory spondylarthritis, anxiety and depression and chronic fatigue syndrome. In December 2018, Ms Williams applied to become a participant in the National Disability Insurance Scheme (NDIS).[1]
[1] Exhibit 1, pages 118-125.
In January 2019, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) determined that Ms Williams did not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (NDIS Act).[2]
[2] Exhibit 1, pages 126-127.
In March 2019, Ms Williams requested an internal review by the NDIA[3] and, in September 2019, another delegate of the CEO confirmed its decision that Ms Williams did not satisfy the access criteria in either sections 24 (containing the ‘disability requirements’) or 25 (containing the ‘early intervention requirements’) of the NDIS Act.[4] Pursuant to section 103 of the NDIS Act, Ms Williams applied to Administrative Appeals Tribunal (Tribunal) for merits review of the NDIA’s decision made under section 100 of the NDIS Act.[5]
[3] Exhibit 1, pages 128-129 and 131-136.
[4] Exhibit 1, pages 54-64.
[5] Exhibit 1, pages 52-53.
The Tribunal held a hearing in August 2021 using the videoconferencing facility, Microsoft Teams, due to restrictions on hearings as a result of the COVID-19 pandemic. The Tribunal is satisfied that the parties had a reasonable opportunity to present their respective cases and to make submissions in this proceeding, in accordance with section 39 of the Administrative Appeals Tribunal Act 1975 (AAT Act). The Tribunal has considered all of the evidence and submissions in this proceeding in reaching its decision and preparing these reasons.
ISSUES
The Tribunal must decide whether Ms Williams meets the ‘access criteria’, set out in section 21 of the NDIS Act, to become a participant in the NDIS.
There was no dispute that Ms Williams meets the age and residence requirements, pursuant to sections 22 and 23 of the NDIS Act, which form part of the access criteria under subsection 21(1)(a) and (b) of the NDIS Act. In addition, Ms Williams did not contend in this proceeding that she met the ‘early intervention requirements’ in section 25 of the NDIS Act.[6]
[6] Applicant’s Statement of Facts, Issues and Contentions dated 11 March 2021 at [46].
Therefore, the Tribunal must determine whether Ms Williams meets the ‘disability requirements’ in section 24 of the NDIS Act. This requires consideration of whether:
(a)Ms Williams has a disability that is attributable to one or more impairments set out in subsection 24(1)(a) of the NDIS Act;
(b)Ms Williams’ impairments are, or are likely to be, permanent pursuant to subsection 24(1)(b) of the NDIS Act;
(c)the impairments result in substantially reduced functional capacity to undertake relevant activities set out in subsection 24(1)(c) of the NDIS Act;
(d)Ms Williams’ impairments affect her capacity for social or economic participation pursuant to subsection 24(1)(d) of the NDIS Act; and
(e)Ms Williams is likely to require support under the NDIS for her lifetime in accordance with subsection 24(1)(e) of the NDIS Act.
LEGISLATION & POLICY
The objects of the NDIS Act, set out in section 3, include to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability;
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability…
Subsection3(3) of the NDIS Act provides that, in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS and to the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the NDIS.
Under section 18 of the NDIS Act, a person may make an access request to the NDIA to become a participant in the NDIS. If a prospective participant makes an access request, under section 20 of the NDIS Act, the CEO (or here, the Tribunal) must decide whether or not that person meets the ‘access criteria’ to become a participant in the NDIS. Pursuant to subsection 28(1) of the NDIS Act, a person will be granted access to the NDIS on the day it is decided under section 20 that the person meets the access criteria.
Subsection 21(1) of the NDIS Act provides that 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).
Relevantly in this proceeding, the ‘disability requirements’ in section 24 of the NDIS Act are as follows:
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; 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, or psychosocial functioning in undertaking, 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.
Pursuant to subsection 209(1) of the NDIS Act, the Minister may by legislative instrument make rules regarding the NDIS. The rules relevant to this application are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Rules).
Additionally, an ‘Access to the NDIS Operational Guideline’(Access Guideline), written by the CEO of the NDIA, provides guidance when determining whether a person with a disability meets the access criteria to become a participant of the NDIS. The Access Guideline represents government policy and, to the extent it is consistent with the relevant legislation, should be applied by the Tribunal unless there is good reason not to do so.[7]
EVIDENCE
Lay evidence
[7] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Ms Williams
Ms Williams provided two written statements in this proceeding dated 20 April 2020 and 11 March 2021,[8] which have been considered by the Tribunal.
[8] Exhibit 1, pages 270-279.
Since 2009, Ms Williams has lived by herself on an isolated 100-acre property in rural New South Wales.[9] She is estranged from immediate family. Ms Williams has experienced learning difficulties from early in her life.[10] She withdrew from school in her final year and was employed for 6 years as a photographic artist.[11] While married, working full time and suffering fatigue, Ms Williams commenced an Associate Diploma in Graphic Design. However, she was unable to complete the required coursework because she ‘fell behind in the reading/knowledge component.’[12] After attempting reduced hours, Ms Williams ‘ended up withdrawing from this course and work to start a family’.[13]
[9] ibid., page 270.
[10] ibid.
[11] ibid, page 271.
[12] ibid.
[13] ibid.
After the breakdown of her marriage, Ms Williams received counselling and support services, including a ‘community parenting session’, which led to enrolment in a course to learn to read and write.[14] Ms Williams said she was not improving and this course was abandoned after 18 months.[15] Around this time, Ms Williams was reportedly diagnosed with a learning disability. The associated report ‘stipulated that I was to be given an extra 15 min for every hour in exams’.[16]
[14] ibid.
[15]Exhibit 1, page 271.
[16] ibid.
In 1993, aged 28, Ms Williams enrolled in a pre-university Certificate for Women’s Studies. The following year, despite twice failing the mature age entry requirements, she was enrolled in a Bachelor of Applied Science after she showed the university her portfolio and completed some practical exercises.[17] Ms Williams completed this degree part-time over 10 years ‘due to my learning difficulties and health’.[18] During this time, Ms Williams was required to complete a unit in English before proceeding, ‘but it didn’t improve my literacy’.[19] Ms Williams stated that she found studying ‘very difficult’, was ‘constantly fatigued’ and had to withdraw from some units because ‘I could not keep up’.[20] She was permitted to take her exams in ‘a room alone’ and was able to complete them at her own pace. Ms Williams was also given extensions of time to complete assignments and exams.[21]
[17] ibid.
[18] ibid., page 272.
[19] ibid.
[20] ibid., page 278.
[21] ibid., pages 278-279.
After some difficulty, Ms Williams secured employment with the water utility ACTEW in 2005.[22] She had two 6 month contracts, but was not offered another.[23] In 2007, Ms Williams was contracted to work with the Department of Environment and the next year was made permanent.[24] Ms Williams reported experiencing bullying after disclosing her learning disability, together with ‘difficult personal circumstances’ and deteriorating health.[25] She took 12 months off work. In 2010, Ms Williams attempted suicide due to her ‘personal life’ and inability to obtain support. She postponed her return to work. After doing so, Ms Williams again attempted suicide and ‘with other medical conditions exacerbated had to accept I was not able to return to work and I ended up leaving in about 2012’.[26] More recently, in 2018, Ms Williams completed a Certificate IV in Mental Health Peer Support, although she reported not being able to cope with the ‘strain and pressure’, which made her physically sick.[27]
[22] ibid.
[23] ibid.
[24] ibid.
[25] ibid., pages 272-273.
[26] ibid, page 273.
[27] Exhibit 1, page 273.
Ms Williams explained that her learning disability is ‘worse when I am stressed’ and without support she cannot explain herself or follow processes correctly. It affects her thinking, memory, reading and writing.[28] Ms Williams’ fatigue and depression ‘makes me feel like I want to crawl under a rock’ and when she experiences overstimulation it affects her thinking and concentration.[29]
[28] ibid.
[29] ibid., page 274.
In one of her written statements, Ms Williams described her ‘average day’, which was said to be ‘about 60% of the time’. She started her day between 5am and 7am following minimal sleep. Ms Williams cooks rice in the microwave for breakfast because of food intolerances and previously having ‘almost burnt the house down’ after forgetting to turn off the stove.[30] She no longer changes her clothes, showers or bushes her teeth in the morning unless going out, ‘because it takes so much energy’ that she would not be able to do anything else during the day.[31] After a rest in bed, Ms Williams will check on the approximately 100 chickens she has on the property, let them out of their coop, feed them and ensure they have water.[32] She will do this in stages if ‘struggling’.[33] Ms Williams will make herself a mid-morning tea or coffee and lie down inside.[34] She watches television and at lunchtime has some rice cakes with a topping.[35] Afterwards, Ms Williams will go outside ‘if I am up to it’ and otherwise will continue watching television until dinner.[36] When the chickens return to their coop, she locks them away and returns inside. Ms Williams will heat up a ‘Meals on Wheels’ dinner, because she generally does not cook anymore and watches television or uses her mobile phone ‘if I am not coping’.[37] She will go to bed when tired and can fall asleep at around 9.30pm if she has been outside and ‘had an active day’, but her sleeping pattern is inconsistent and sometimes ‘I do not sleep all night’.[38]
[30] ibid.
[31] ibid.
[32] ibid., page 275.
[33] ibid.
[34] ibid.
[35] ibid.
[36] ibid.
[37] ibid.
[38] Exhibit 1, page 275.
Examination-in-chief
At the hearing, Ms Williams gave evidence to the Tribunal by telephone through MS Teams. Ms Williams’ advocate also read an opening statement she had prepared, which has been considered by the Tribunal. Ms Williams said that there are ‘different ways of learning’ and she uses YouTube and other outlets ‘to work out how to do things’. She said that only about 10% of people with a learning disability ‘actually has the disability side of things’. Ms Williams said people consider it fixable, but that ‘it’s not for a few of us’. She told the Tribunal that: ‘Yes, we can learn to read, but it doesn’t change how we see the page, how fatiguing it is and that it takes a lot of energy to do that, and then we’re exhausted’; it cannot be done at the same pace and in the same timeframe as others. Ms Williams said that for a while she can keep up, but can miss and not remember things. This impacts her everyday life. For example, when at the shops she has to identify the markings of the particular bag of chicken feed she requires because she cannot remember the brand name.
Cross-examination
By way of cross-examination, Ms Williams confirmed that she still resides on her rural property and has done since 2009. She said buying a property was ‘easy’ because the estate agent will ‘do all the papers’ and take care of most other matters. However, a legal issue arose following settlement of the property regarding Ms Williams’ access to and from the property off the public road. Ms Williams sought legal assistance, but the issue remains unresolved. When she is ‘well enough’, Ms Williams will try to seek a resolution, but she becomes ‘sick again and it all doesn’t happen’. Ms Williams does, however, access the property using the road which is the subject of this issue.
Ms Williams told the Tribunal that hot water at the property was also ‘still an issue’ and ‘intermittent’. She had someone attend the property to fix it, and asked them to bring a new hot water service, which was ultimately not required. Ms Williams explained the problem with ‘getting most services’ is that it ‘won’t be fixed properly’ and she ‘won’t be able to find the number’ to follow up, she becomes ‘sick’ and months pass. This requires another attendance by a tradesperson and the issue remains unresolved. Ms Williams’ landline telephone now works, but she does not have mobile telephone range at her property, although the internet works on the mobile phone.
Ms Williams has a greywater sewage system with a composting toilet. It was described as an ‘above floor system’, requiring Ms Williams to pull a tray out for emptying outside. Ms Williams said she ‘can’t pull the tray out’ and the toilet system is ‘broken’. She said the property needs a toilet with underfloor capacity which would involve less emptying. However, Ms Williams said there is a lack of clearance under the house so the toilet needs to be moved. Ms Williams said builders do not want to attend the property for ‘just a small thing’ and she cannot get anyone to assist. Ms Williams told the Tribunal that she discussed the changes required to the composting toilet when she tried to buy a new toilet. She is ‘good with images’ and diagrams and understood the requirements such as clearance levels under the house. A builder talked her through ‘all the issues’ regarding installation of a toilet, but she has not been able to proceed. Ms Williams said she needs ‘someone to help me get that stuff done’, work out what paperwork is required and ‘get it happening’.
Ms Williams’ property is 40 minutes from Merimbula, but she now drives to Bega when needing to go into town, which is approximately one hour away. Ms Williams evacuated from her property during the recent bushfires due to her health, but wants to build a ‘fire bunker’, although she faces the same planning and approval issues as with the toilet. She said if ‘I could have managed all the planning side – coordination and planning side of things I would have had a fire bunker, I would have had all the water pumping equipment up. I had a pump and I had the pipeline, but it wasn’t all interconnected and coordinated and stuff when it should have been’.
Ms Williams told the Tribunal that, in her early life, because of her learning disability she ‘couldn’t get a job’. She undertook a literacy program, ‘which didn’t work’ and then a ‘pre-entry’ course for university. While studying for a degree, Ms Williams completed an English unit, which ‘didn’t improve my reading and writing’, although she obtained a credit mark with extensions of time for assignments.

Ms Williams said that she manages to get her heritage chickens fed and watered ‘and that’s about it’. She has learnt about land management through watching videos on YouTube and due to her science background. Ms Williams described her chickens as ‘my life’ and ‘all I’ve got’. She spends ‘most of the day’ looking after them. It takes Ms Williams ‘a lot longer to get around the coops than a normal person’ and it is dependent upon her fatigue levels. She paces herself through the day to complete these tasks. Ms Williams breeds chickens naturally and finds them intellectually stimulating. She said because ‘I can’t do a lot’, they ‘do the digging and they’ll till the garden’ and provide manure. Ms Williams told the Tribunal she ‘really enjoyed’ the ‘genetics of it and learning’, including ‘using what I’ve learnt’ at university. YouTube was also said to be ‘great’ because she can search for something without knowing the precise term or word. Ms Williams does not attend shows with the chickens and has not exhibited them. There is a Facebook group for her particular breed of chickens and an annual national show, but Ms Williams does not participate in these forums. However, she is involved in ‘a couple’ of private Facebook groups where she can share photos to seek advice and receive responses from experts.
Ms Williams told the Tribunal she had tagged and clipped the chickens once. She tries to track each chicken, but due to her ‘dyslexia the records aren’t always as good as they should be’. It has taken time for Ms Williams to understand what she needs to record and how to do that. In this regard, she described herself as a ‘very analytical person’. She tries to track each individual chickens’ laying practices, but has not managed to ‘do that efficiently enough’. When she becomes unwell, Ms Williams is unable to maintain her record keeping. For breeding, Ms Williams will pair chickens, they have a nesting box and manage and raise their chicks. Ms Williams told the Tribunal she prefers not to sell the chickens until she has ‘a really nice, clean bird’, but is ‘scared of that side’ and is ‘not good with the business’ or with people. Ms Williams said she had ‘so many eggs’ and chickens that it ‘could become a business’.
Ms Williams told the Tribunal that she does not anymore meet with people to play board games and said ‘Mental Health tries to encourage me to have relationships’, she ‘tried that for a while, but it’s all fallen through’.
Ms Williams confirmed she completed a Certificate IV in Mental Health Peer Support in 2018. She was transported with others to classes at TAFE, which were done in ‘blocks’, but could not recall whether the course went for 6 or 12 months. The assessment included testing, which was done verbally for Ms Williams, and also had a practical group work component. There was a paid apprenticeship or work placement, but Ms Williams otherwise finished formal employment in 2012.
Ms Williams said she is ‘struggling’ to manage her food allergies and has recently ‘ended up with another whole lot of intolerances’. She needed to see an immunologist to do the required tests. Ms Williams had skin tests done and ‘learnt about the grass and the pollen and things like that’. She was referred to a dietitian and undertook an elimination diet. However, Ms Williams said she forgets what she is not to eat and this disturbs her diet. She requires ‘someone to prompt me and walk me through it’. During her suicidality, Ms Williams was going to a dietitian, but was ‘struggling’ to go to all appointments with medical practitioners. She would prioritise doctor and psychological appointments. Recently, Ms Williams identified and contacted a naturopath who can assist her to ‘do the test’, but she missed an appointment and has not since made further contact. Ms Williams told the Tribunal that she had assistance to identify the main categories of foods to avoid, such as dairy. She receives ‘Meals on Wheels’ and had ‘some extra hours support in the home’, with a carer cooking her meals from food Ms Williams had purchased. She would advise the carer what she could and could not eat and they would modify the food to suit her diet. Ms Williams shops for groceries monthly.
Ms Williams told the Tribunal that her learning difficulties were identified in primary school, which affected her reading and writing, but was not dyslexia or diagnosed as a specific learning disability. Ms Williams said when she is stressed it is ‘harder to concentrate, it’s harder to read’. She has had chronic fatigue syndrome since she was 19.
Ms Williams told the Tribunal she was ‘really struggling’ with her medications, ‘can’t get my routines back in order’ and needs ‘help’. She is currently not taking ‘a lot’ of her medication and is ‘overwhelmed and just getting through the days’. Ms Williams will take her medication for a number of days, then forget it and start ‘yoyoing’ because of the irregularity. She prefers to ‘take things as needed’, because she became ‘very, very ill’ while on all her medication. She has discussed this with her doctors and chemist and was aware of the possibility of engaging a compounding pharmacist. Ms Williams is now exploring natural remedies and reverting to ‘what worked before the doctors’.
Ms Williams accesses five publicly funded osteopath sessions each year through her Chronic Disease Management Plan, but attends this service approximately monthly and pays for the balance of the sessions. Ms Williams does not have a Safe and Supported at Home package anymore and did not know whether she had reapplied.
Ms Williams was unsure what she was accessing through her Commonwealth ‘My Aged Care’ package or when it commenced. She told the Tribunal it was approximately 4 hours weekly, but that two hours are consumed with the support workers driving to and from her property. Once a month, Ms Williams gets 4 hours when they collect and deliver her food from in town. There is also a ‘pastoral care’ person who calls her ‘every now and then and we talk’. She has previously received assistance with transporting to, and attendance at, medical appointments.
Ms Williams is not currently accessing psychological services under a GP Mental Health Care Plan, although she has sought to do so. She received support after the bushfires and was encouraged to reconnect with her support services. Ms Williams said she has ‘tried three or four and they’ve all fallen through’. For instance, she tried paying privately for counselling support and had access to a number of sessions after the bushfires but she missed a telephone call and this did not proceed.
Counsel for the NDIA asked Ms Williams about her self-care activities. She confirmed to the Tribunal that she dresses independently, although she stays in the same clothes and they are adapted, having no buttons, but zips or elastic. Her shoes have Velcro or zips, with which she can ‘struggle’. Ms Williams will only wear socks when she goes out. She showers independently, although her shoulder is ‘giving me a bit of trouble’ and she needs to lie down afterwards. Despite some difficulty, Ms Williams toilets independently. Ms Williams buys food and makes ‘basic’ meals, such as frying meat on the stove, which is done in stages rather than cooking an entire meal. She will also make a batch of stew with a support worker and re-heat it for a meal. Ms Williams is ‘not really’ brushing her teeth because of gum problems. Brushing her hair is ‘difficult’; after washing it she ties it back. Ms Williams said she was ‘not doing much’ housework, but can sweep the floor. She cannot vacuum; a support worker vacuums and mops. Ms Williams can wipe the shower, basin and bench, but has difficulty squeezing the sponge. She has no dishwasher, but can wash up some dishes, although can drop things. This also depends on her energy expenditure during the day. Although Ms Williams can ‘do all the individual tasks’ involved with the laundry, the whole process is a ‘struggle’. Ms Williams shops monthly, she uses an online ‘click and collect’ service for groceries and purchases chicken feed from an agricultural store in Bega or her support workers will do so. She is unable to do basic house repairs, but uses clothes pegs to clip up items and keep them together. To avoid flooding on the property, Ms Williams has built up speed humps on her driveway to divert water across the road rather than towards the house. She drives to Bega monthly, which takes her one hour because she drives slower than the speed limit. Ms Williams cannot make her bed, her support workers presently do this task and it is irregular.
Ms Williams was unsure how long she was away from her property due to the bushfires. She went to Bega for the first evacuation and she ‘knew enough to know this wasn’t going to be a one off, there was going to be several evacuations’. After some assistance at the evacuation centre, she drove to Wagga Wagga. Ms Williams evacuated ‘some’ of her chickens and utilised Facebook to seek assistance for the remainder. People from the evacuation centre ‘rescued the chickens and helped me’.
Expert evidence
Mr Don Finnegan – Psychologist
The Tribunal has considered the four reports written by Mr Finnegan between 2017 and 2020 regarding Ms Williams and her application for access to the NDIS.[39] Mr Finnegan appeared at the hearing by video using MS Teams to give evidence in this proceeding.
[39] Exhibit 1, pages 72-75,257-269.
Examination-in-chief
Mr Finnegan told the Tribunal that he has not worked with Ms Williams since early 2019, but that he had previously seen her for 12 years over eight specific episodes of care. He said Ms Williams has been diagnosed with a learning disability, major depressive disorder, which is recurrent, and anxiety which is like post-traumatic stress disorder. Ms Williams has been receiving ‘various treatments since adolescence’ for all of these conditions. She received learning support for reading, writing and communication, with little benefit. For her psychological conditions, Ms Williams has tried ‘a number of different medications over the years’ and received specialist assistance, including ‘some psychiatric admissions to hospital’. Mr Finnegan told the Tribunal that Ms Williams has had ‘long periods of therapy’ and tried ‘lots of different approaches’, which ‘help her function better and cope better to some degree while she’s receiving treatment’, although they have not resolved her underlying issues.
Ms Williams’ advocate asked Mr Finnegan how the impairments impact on her function. He told the Tribunal this was a ‘complicated question’, but they impact her ‘really significantly’. Mr Finnegan said there were ‘a number of different ways that her disabilities interact and cause trouble’. Ms Williams has had ‘a lot of experiences where her learning disabilities have meant she’s struggled to deal with organisations’, learning environments or work situations. These have not been understood and she was ‘unfairly disadvantaged’, lost jobs, court cases or ‘was manipulated by people’. These experiences were traumatic and triggers a ‘trauma-like anxiety response’. This compounds the learning disability and impairs her ‘executive functioning’, her ability to ‘problem solve, to understand, to prioritise’ and to plan. Mr Finnegan told the Tribunal when Ms Williams’ mental health flares up, the other conditions ‘exacerbate and get worse’.
Mr Finnegan said the impact on Ms Williams’ functioning ‘is variable’. It is ‘quite severe’ when she is going through difficult periods and her anxiety is higher. He told the Tribunal that the ‘biggest impact’ is in Ms Williams’ ‘activities of daily living or functioning in the world’. Ms Williams ‘doesn’t really manage’ to process information and organise information well’; she ‘doesn’t cope with a whole bunch of stuff’, particularly ‘making big life decisions’, such as whether to continue living remotely or move into town. This is because Ms Williams is unable to ‘do the complex thinking required to solve that kind of problem’. It also includes dealing with organisations, such as Centrelink, or her taxation issues. She defers attending to them and ‘they become bigger and bigger problems’.
Mr Finnegan told the Tribunal that, while Ms Williams ‘was really good at some aspects of her job’, her depression or anxiety would mean ‘she just didn’t function’ and had ‘a period of being off for mental health reasons’. She would attempt to return and increase her duties, but would invariably be ‘triggered in some way’ by another stressor and be unable to function and meet the demands of the job. This ultimately meant Ms Williams had to leave her employment.
Mr Finnegan said that the ‘main area’ Ms Williams’ ‘difficulties’ impacted upon her was on ‘managing life decisions’, ‘all the administrative side of life’ and the management of her property. This includes keeping the house clean, changing bedsheets, washing, shopping and cooking. Ms Williams has ‘periods when she manages that well’, but in recent years the majority of the time she does not ‘manage that well’. Mr Finnegan told the Tribunal that ‘solving problems’ around the management of Ms Williams’ property is something ‘she doesn’t function with’. Mr Finnegan referred to the plumbing issues regarding the toilet on the property. He said there was also an impact on Ms Williams’ social functioning; she finds it difficult to make and maintain friendships, some long-term friendships and community engagement have dissipated ‘as a result of her sensitivities and her anxiety and depression’. Ms Williams asked Mr Finnegan about his opinion of her learning disability. He said this impacts on ‘learning new systems’ and she required ‘good support’ to make it achievable, otherwise it would be overwhelming, distressing and triggering.
Cross-examination
Counsel for the NDIA referred Mr Finnegan to his four reports in relation to Ms Williams’ application for access to the NDIS. Mr Finnegan told the Tribunal he was involved in Ms Williams’ care for 8 years, rather than 12, and this commenced in 2011. He confirmed that the two reports from 2020 were based on his memory and notes, because he stopped seeing Ms Williams for counselling in January 2019 and these reports were written approximately 18 months later.
Mr Finnegan told the Tribunal that Ms Williams had been diagnosed with a learning disability by an educational psychologist early in her adult life, but there had been no cognitive assessment to determine her specific learning difficulties; Mr Finnegan had not conducted any assessments, including in relation to a specific learning disability, but based his diagnosis on clinical observations of Ms Williams and her ‘general difficulties with executive function’. Mr Finnegan had observed how Ms Williams managed issues she encountered, such as property management and dealing with taxation issues and organisations. This was ‘largely’ based on Ms Williams’ reports to Mr Finnegan and through his experience with her problem-solving capacity. Particular problems of which Mr Finnegan was aware were the NDIS application process, accessing support services and medical treatment issues. However, these did not include taxation or Centrelink issues.
Mr Finnegan told the Tribunal that Ms Williams’ depression and anxiety were episodic, had ‘no regularity’ and on average an event would occur ‘three or four months each year’ where she was ‘really overwhelmed’. Ms Williams would experience a ‘life stressor’ triggering an episode of high anxiety and often depression where her ‘coping’ and ‘functioning’ would become ‘really, really impaired’. Counsel for the NDIA referred Mr Finnegan to his report of May 2020, in which he stated that Ms Williams’ periods of high anxiety are ‘often associated with exacerbation’ of her physical impairments and depression. He confirmed that these impaired her functioning in activities of daily living such as cooking and cleaning. However, Mr Finnegan told the Tribunal that he had not conducted an in-home assessment, it was based on her self-reporting or from carers describing their observations.
Ms Williams was said to have attended appointments consistently and completed ‘homework’ set by Mr Finnegan. Sometimes Ms Williams would cancel or not attend, but she had ‘pretty good attendance’. In the last year or two of their consultations, Ms Williams was finding it difficult to attend and would do so when she had to go into town for other reasons. She also reported to Mr Finnegan being ‘wiped out’ after their sessions for ‘a day or two’.
Counsel referred Mr Finnegan to a passage of his 2017 report regarding Ms Williams’ involvement in activities in the community and his subsequent undated report describing her disengagement from those activities. Mr Finnegan was asked about this change. He said it was a combination of two factors: the physical and mental involvement became too much and she pulled back and because Ms Williams has a heightened sensitivity to feeling ‘people are letting her down, that they don’t understand, that they are judging and that she’s under threat from people’. When Ms Williams has this experience she ‘gets a really intense anxiety and anger response to it’. While possible, Mr Finnegan did not think that Ms Williams had disengaged in response to the NDIA identifying her social interaction as evidence that she did not have a substantial reduction in functional capacity for that activity. It was said to not fit ‘with the experience of how she has handled other things along the way’. Mr Finnegan said he would not consider that Ms Williams would cut off her connections to achieve the goal of demonstrating her requirement for NDIS support. He could see her becoming very distressed and triggered from such communication and perhaps refusing to do things as a form of protest, but not with the goal of advancing her NDIS application.
Mr Finnegan told the Tribunal that the reference in his May 2020 report to Ms Williams requiring ‘considerable support and special considerations’ related to both her university and Certificate IV studies. In relation to the latter, Ms Williams was said to have found it ‘incredibly stressful’ processing information, reading and completing answers to questions and managing administration regarding placements and assessments. She also found the supervision requirement stressful ‘in terms of being judged’. Mr Finnegan agreed that Ms Williams had modified assessments and completed the Certificate.
Mr Finnegan also agreed that he had not adequately assessed Ms Williams’ functional capacity in relation to the activity of self-care. His assessment was limited to Ms Williams’ reports and some corroboration from support workers. Mr Finnegan had not undertaken an assessment of this activity and said it would be unusual for a psychologist in private practice to do so.
Mr Finnegan told the Tribunal that Ms Williams’ functional capacity in the activity of self-management was significantly impacted by her mental state. She finds it difficult ‘at all times’ to manage paperwork and deal with bureaucratic processes. However, Mr Finnegan said that when Ms Williams is ‘functioning at her best she is able to do it to some degree’, but when anxious or depressed she ‘really is not capable of doing it at all’. Mr Finnegan agreed that Ms Williams found it difficult to deal with big life decisions, such as in relation to her household or property, ‘not everyday decisions’; these complex matters arose ‘probably more often’ than once or twice each year. Ms Williams’ problems with managing her house have been there for ‘a number of years’ and are unresolved, such as the toilet on the property. Mr Finnegan was unaware of the investigations Ms Williams had undertaken into fixing the issue and the advice she had received in that regard.
Mr Finnegan confirmed that his understanding of Ms Williams’ ‘flare-ups’ in relation to her mental state is that the frequency is contingent on triggering factors and that this occurred approximately every three to four months. Counsel for the NDIA asked Mr Finnegan what impact Ms Williams’ depression and anxiety has on her self-care and self-management. Mr Finnegan said that her ‘executive functioning decompensates’ and Ms Williams ‘doesn’t manage’ to juggle different tasks and prioritise when ‘under high anxiety’.

Mr Finnegan was referred to the passage in his July 2020 report which stated that Ms Williams’ management of her chickens through the bushfires and subsequently ‘reflects her optimum functioning’. He said it was ‘possible’ this period was more stressful than he initially considered; he had ‘a small amount of contact’ with her during this time.
Mr Finnegan told the Tribunal he was aware of Ms Williams’ exploration of possible alternatives to medication and that she had sourced a lot of information from YouTube, which ‘got around the problem of her greater impairment with written information’ because it was ‘easier to comprehend’. Ms Williams was said to be ‘highly stressed’ by the options and unsure what to do. Mr Finnegan agreed that for any person it was ‘normal to be overwhelmed’ with an unclear treatment pathway.
While Ms Williams had not mentioned her efforts to identify her food allergies, they discussed her observations regarding gluten tolerance and had ‘learnt from those experiences to try and steer clear of it’.
Mr Finnegan agreed that Ms Williams’ capacity to learn about her heritage breed of chickens, including breeding, caring for them and recording information, shows she has the cognitive capacity for learning. He said it does ‘in limited ways’; she has a capacity for learning in areas ‘she is interested in, and areas where it is quite practical and hands-on’. However, Mr Finnegan did not know ‘to what degree it demonstrates her ability to learn’. Mr Finnegan also agreed that this could also demonstrate a level of executive functioning because Ms Williams is making decisions about the care of her chickens.
Ms Fiona Curdie – Occupational Therapist
In February 2020, Ms Curdie conducted an assessment with Ms Williams at her residence. She subsequently provided a report dated 31 March 2020, which was filed in this proceeding by the NDIA.[40] The Tribunal has considered this report in its decision and refers to relevant sections further below in these reasons.
[40] Exhibit 1, pages 287-328.
At the hearing, Ms Curdie appeared by video using MS Teams to give evidence in this proceeding. She confirmed adherence to her report and told the Tribunal it was a true record of the facts conveyed to her by Ms Williams and contained her true observations and opinions.
By way of cross-examination, Ms Williams asked Ms Curdie why she thought the electricity to the house was provided by generator. Ms Curdie said it was what she had recorded. Ms Williams said she did have a generator, but the house was ‘on mains’ and solar power.
Ms Curdie was asked about her comment that there was no current working sewerage or septic system on the property. She said there was no such system, the toilet was not working or connected and Ms Williams had demonstrated use of her bucket system. Ms Williams told the Tribunal there is a composting toilet and grey water system, but the toilet ‘doesn’t work’. Ms Williams said ‘that’s sort of what I’ve written’, regarding there being no working sewerage or septic system at the property.
On grooming, Ms Williams told the Tribunal that she does not clip her toe nails by sitting on a chair, as reported by Ms Curdie, and that this is a difficult task. On meal preparation, Ms Williams said ‘Meals on Wheels’ was organised by phone, rather than ‘click and collect’ as reported by Ms Curdie. Ms Williams asked Ms Curdie about her reference to a ‘loan’ and said this was reported to her by Ms Williams, who told the Tribunal she did not know what this referred to.
On making the bed, Ms Williams told the Tribunal that she cannot make her bed, although she demonstrated putting ‘a corner back in place’, but said this was not a fair method to test a person’s bed making abilities. Ms Curdie said Ms Williams reported to her that she was able to change bed sheets and does this regularly to prevent dust mites. Ms Williams said she would not be doing this ‘regularly at all’ and it may have been done together with a carer.
In relation to equipment and aids, Ms Williams referred to the photos annexed to Ms Curdie’s report showing utensils used to open items, the open bag of sugar she used because of the difficulty with opening lids and the water taps that had been changed in the house. She also identified a ‘back scrubber’ she uses in the shower and door handles that had been changed to allow ease of opening. Ms Williams said she tried using a walker when she was ‘at my worst’. She put to Ms Curdie that these are additional items of equipment or aids that she was using or had used due to her impairments. Ms Curdie said the lever tap was ‘quite standard now in a lot of houses’, she did notice the door handles had been adjusted but had not reported them. She also observed the jar openers but had not recorded them as being ‘specific requirements’ for Ms Williams. Ms Curdie did not report the mobility aid because she was told by Ms Williams that she was independent in her mobility which was also observed during the assessment. Ms Curdie told the Tribunal she had observed Ms Williams’ ability to kneel and go to the ground level to get items for the chickens. Ms Williams said she does not ordinarily kneel or squat and would have bent from the hips. Ms Curdie said she reported that Ms Williams had stooped to knee level inside and outside the home and also knelt when with the chickens.
Ms Curdie was asked why she thought Ms Williams had reported not suffering from sleep disturbance. Ms Curdie said she must have asked Ms Williams about her sleep, who indicated she slept well. She referred to her notes of the assessment which stated that Ms Williams ‘reported that she’s sleeping without issues’.
In relation to communication, Ms Curdie said Ms Williams answered all questions asked of her, demonstrated her ability to communicate verbally, was able to shop online or by phone and was able to express her shopping requests, including because she was able to purchase items for herself and her chickens.
CONTENTIONS
Ms Williams
Ms Williams contended that she meets the ‘disability requirements’ in section 24 of the NDIS Act and that the decision under review should therefore be set aside and substituted with a decision that she meets the access requirements in section 21 of the NDIS Act. She did not contend that she met the ‘early intervention requirements’ in section 25 pf the NDIS Act. More specifically, Ms Williams submitted that, pursuant to subsection 24(1)(c) of the NDIS Act, she has a substantially reduced functional capacity to undertake the activities of learning, self-care and self-management. Additionally, in relation to subsection 24(1)(e) of the NDIS Act, Ms Williams submitted that she is likely to require support under the NDIS for her lifetime due to the permanency of her impairments.
NDIA
The NDIA acknowledged that Ms Williams has some reduced functional capacity in the activities of learning, self-care, and self-management, however it submitted that this reduction is not substantial, as required by subsection 24(1)(c) of the NDIS Act. The NDIA therefore contended that, while Ms Williams may require some support, including through health or mainstream services, it cannot be found that she requires the support of the NDIA for her lifetime pursuant to subsection 24(1)(e) of the NDIS Act.
CONSIDERATION
The disability requirements
The Tribunal must be satisfied that Ms Williams meets all of the ‘disability requirements’ in subsection 24(1) of the NDIS Act in order to find that she meets the access criteria for the NDIS.[41] On the available evidence, the Tribunal is satisfied, and the NDIA separately accepted, that Ms Williams meets the criterion in subsection 24(1)(a) of the NDIS Act, being that she has a disability attributable to the impairments of chronic inflammatory spondylarthritis, a learning disability, anxiety and depression and chronic fatigue syndrome.
[41] Howard and National Disability Insurance Agency [2019] AATA 2, [25].
A person meets the criterion under subsection 24(1)(b) of the NDIS Act if the ‘impairment or impairments are, or are likely to be, permanent’. The Tribunal is satisfied the evidence supports a finding that this permanency criterion is met in relation to Ms Williams’ impairments. The Tribunal also notes that the NDIA did not dispute that Ms Williams’ impairments are permanent. On the available evidence, the Tribunal is also satisfied, and it was acknowledged by the NDIA, that Ms Williams meets the criterion in subsection 24(1)(d) of the NDIS Act, in that the impairments affect her capacity for social or economic participation.
As a result of these findings, the focus of the reasons that follow is on the disputed criteria in subsection 24(1)(c) and (e) of the NDIS Act, regarding substantially reduced functional capacity and lifetime NDIS support.
Does Ms Williams have substantially reduced functional capacity?
The Tribunal turns to consider whether Ms Williams’ impairments result in substantially reduced functional capacity to undertake one or more of the following activities specified in subparagraphs (i) to (vi) of subsection 24(1)(c) of the NDIS Act: communication; social interaction; learning; mobility; self-care; or self-management.
Ms Williams did not contend in this proceeding that her impairments result in substantially reduced functional capacity to undertake the activities of communication, social interaction and mobility. For completeness, the Tribunal is satisfied, based on the evidence, that while Ms Williams does have some reduced functional capacity in these three activities, this does not rise to the requisite standard of a substantially reduced functional capacity in one or more such activities. Accordingly, the remaining activities for the Tribunal to consider are learning, self-care and self-management pursuant to subsection 24(1)(c)(iii), (v) and (vi) of the NDIS Act.
The Rules provide the following guidance:
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) – if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
Further guidance in relation to determining when an impairment results in substantially reduced functional capacity is set out in the Access Guideline, as follows:
8.3 Substantially reduced functional capacity to undertake relevant activities
The NDIA must be satisfied that an impairment results in substantially reduced functional capacity of a prospective participant to undertake one or more relevant activities (section 24(1)(c)).
The NDIA is required to consider whether any permanent impairment, or permanent impairments when considered together, result in substantially reduced functional capacity to undertake one or more of the following activities:
·Communication: includes being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age;
·Social interaction: includes making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context;
·Learning: includes understanding and remembering information, learning new things, practicing and using new skills;
·Mobility: this means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs;
·Self-care: means activities related to personal case [sic], hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs; or
·Self-management: means the cognitive capacity to organise one's life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem solving and managing finances.
The NDIA does not need to be satisfied that a person's impairment is 'serious', or more serious than another person's. Rather, access to the NDIS is based on a functional, practical assessment of what a person can and cannot do (see Mulligan and NDIA [2015] FCA 44 at [56]).
The NDIA will not need to consider whether a prospective participant's impairment results in substantially reduced functional capacity in relation to all of the relevant activities for every access request.
It is sufficient for a prospective participant to have substantially reduced functional capacity in relation to one activity (see Mulligan and NDIA [2015] FCA 44 at 67).
Which activity the NDIA will need to consider will depend on the circumstances and the evidence presented by the prospective participant. For example, if a prospective participant has an impairment which results in substantially reduced functional capacity to undertake mobility, but otherwise has full cognitive capacity, it may not be necessary for the NDIA to consider whether the impairment results in substantially reduced functional capacity to undertake activities related to cognition.
8.3.1 When does an impairment result in substantially reduced functional capacity to undertake activities?
An impairment results in substantially reduced functional capacity to perform one or more activities when:
·the person is unable to participate effectively or completely in the activity or perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items) or home modifications (rule 5.8(a) of the Becoming a Participant Rules); or
·the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity (rule 5.8(b) of the Becoming a Participant Rules); or
·the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person (rule 5.8(c) of the Becoming a Participant Rules).
The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:
By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.
In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.
Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.
When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age. For example, children under the age of 2 will not necessarily have a substantially reduced functional capacity because they need assistance to provide for self-care needs.
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes. [emphasis in original]
The following observations of Justice Mortimer in Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) are instructive in setting out what is required in assessing what a person can and cannot do given their impairment or impairments and whether they meet the disability requirements under the NDIS Act for access to the NDIS:[42]
Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities…) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled…
…
Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates 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.
That being the case, no arbitrary limits are placed on access to the NDIS. No decisionmaker 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. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.
[42] Mulligan v National Disability Insurance Agency [2015] FCA 544,[52]; and [55]-[56].
Learning
Based on the available evidence, the Tribunal is not satisfied that Ms Williams’ impairments result in a ‘substantially reduced functional capacity’ to undertake the activity of learning, as required under subsection 24(1)(c)(iii) of the NDIS Act. As set out above, the Access Guideline states that learning includes ‘understanding and remembering information, learning new things, practicing and using new skills’. It also states that undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity. Furthermore, consideration of the impact on a person’s ability to function is focused on the periods between acute episodes in their impairment.

While the Tribunal is satisfied that Ms Williams does have a learning disability, the precise diagnosis or impact of that learning disability remained unclear in this proceeding. Most relevantly, this included how Ms Williams’ learning disability was said to substantially reduce her functioning in undertaking this activity. For example, there was no literature regarding Ms Williams’ learning disability and how it specifically impacts her capacity to undertake the activity of learning.
Ms Williams withdrew from school in her final year. She ultimately studied for, and obtained, a university degree and recently completed a Certificate IV at TAFE. She has completed tertiary and formal education in different subject areas. While Ms Williams took approximately ten years to complete her university degree part-time and had modified assessments for her education, these matters do not demonstrate a substantially reduced functional capacity in the activity of learning.
In this regard, the evidence of Ms Williams’ former psychologist, Mr Finnegan, from 2017 was that she is an ‘intelligent woman’, is ‘very practically competent’ and ‘has to manage tasks like road maintenance, weed control and plumbing repairs’.[43] This intelligence and practicality was clear from Ms Williams’ evidence to the Tribunal. Mr Finnegan also said she has ‘difficulties with some areas of executive functioning’, including planning, holding multistep processes in mind, problem solving and memory functioning, reading complex material, and organising thoughts for written expression.[44] These ‘information processing deficits’ are exacerbated when under ‘stress’.[45]
[43] Exhibit 1, page 22.
[44] ibid.
[45] ibid.
In 2020, Mr Finnegan’s report in relation to learning was confined to an overview of Ms Williams’ pursuit of formal education. He said:[46]
Julie’s learning disabilities have been a significant barrier to her learning. She has been able to pursue and complete university studies in early adulthood and then mental health support training more recently. However, she required considerable support and special considerations to complete this and it was a very stressful process.
[46] ibid, page 267.
While not doubting the content of Mr Finnegan’s statement, this is not the requisite assessment to determine a person’s capacity in the activity of learning in order to satisfy the access criteria for the NDIS. It is much broader than considering a person’s difficulty with formal education or with ‘executive functioning’. The legislative instruments and associated policy, expressly conveyed in the Access Guideline, require a person to have a substantially reduced functional capacity in relation to ‘understanding and remembering information, learning new things, practicing and using new skills’. The requirement for Ms Williams to have adjustments and different modes of assessment in her formal education do not demonstrate a substantially reduced functional capacity in the activity of learning in accordance with the requirements of section 24(1)(c) of the NDIS Act. Ms Williams was given extensions of time to complete assessments, further time in exams and was asked verbal rather than written questions. However, she completed her education and therefore demonstrated a capacity for formal learning. She completed the Certificate IV as recently as 2018. This was done in ‘blocks’ given the travel required. While Ms Williams found this educational experience stressful, it did not prevent her from obtaining that qualification.
In addition, Ms Williams has demonstrated her capacity for learning in informal settings. She keeps and breeds approximately 100 heritage chickens on her property. Ms Williams gave detailed evidence about what this involved and the difference between her breed of chickens and those raised for commercial purposes. She has learnt about their genetics, including from online sources, sought advice from experts and looks after their care needs, such as with feeding, watering, clipping and tagging and recording certain details about them, albeit this last element is not done in a comprehensive manner. Mr Finnegan told the Tribunal that he had not discussed Ms Williams’ chickens in their sessions because she did not have them before these ended in early 2019.
Ms Williams has also demonstrated a capacity for learning in relation to the treatment of her impairments, understanding her allergies and dealing with property issues. For example, Ms Williams explained her detailed consideration of whether to continue with prescribed medication or to pursue alternatives, such as natural therapies. She understands her food allergies, what to avoid and what to substitute, including directing support workers in the preparation of meals and has identified new intolerances and the further testing required. Ms Williams also accesses online resources, such as YouTube, to research or enquire about issues affecting her health, property or chickens. Additionally, while she said it was a complicated matter, Ms Williams informed the Tribunal about the ongoing legal issues regarding an easement to access her property. Further, she told the Tribunal about the toileting issues at the property and what was required to address this problem, including consulting tradespeople, investigating potential renovations and seeking planning approval. In short, Ms Williams can understand the problem and what is required to fix it. However, issues can arise for Ms Williams in coordinating the services required to address these issues, such as in relation to the toileting system. On the whole, Ms Williams acknowledged an ability to learn new things, albeit in a slow manner.
Based on the requisite functional and practical assessment of what Ms Williams can and cannot do and on all of the evidence, the Tribunal is satisfied that, while Ms Williams has some reduced capacity in the activity of learning, it does not meet the required standard of being a substantially reduced functional capacity so as to satisfy subsection 24(1)(c) of the NDIS Act.
Self-care
Having regard to the available evidence, the Tribunal is not satisfied that Ms Williams’ impairments result in a ‘substantially reduced functional capacity’ to undertake the activity of self-care, as required by subsection 24(1)(c)(v) of the NDIS Act. The Access Guideline provides that self-care means activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, and caring for health care needs. Additionally, as set out above in these reasons, consideration of a fluctuating or episodic impairment requires an assessment ‘between acute episodes’, rather than during those acute periods.
Most relevantly, Ms Williams told the Tribunal that she can independently dress, shower, groom herself, attend to toileting and can feed herself. She also prepares meals for herself. While this task is done in stages to pace herself, undertaking it slowly does not meet the substantial reduction requirement. Ms Williams can brush her hair and teeth, although she is not doing the latter at the moment due to a gum issue. She takes medication independently, although is considering whether to continue. Ms Williams confirmed that she can sweep the floor, wipe the shower, bench and basin. She cannot mop or vacuum and a support worker does these tasks. She can do her laundry independently, although has difficulty getting it all done. Ms Williams drives to town, albeit slowly, to shop monthly, including for chicken supplies. She purchases groceries online using a ‘click and collect’ service. Ms Williams gave evidence that she cannot make her bed and support workers perform this task. On balance, the evidence demonstrates that Ms Williams has some reduced functional capacity in relation to undertaking the activity of self-care. However, the few tasks Ms Williams is unable to perform, or those she performs with modifications or the assistance of support workers, do not amount to a substantially reduced functional capacity for self-care. She lives on her own and is, on the whole, independent in her self-care.
Ms Williams’ evidence regarding her capacity in the activity of self-care was confirmed by that of the occupational therapist, Ms Curdie, who most recently assessed Ms Williams at her home. While there were minor omissions or clarifications arising from Ms Curdie’s report, it corroborated a finding that Ms Williams does not have a substantially reduced capacity in undertaking the activity of self-care. This assessment was performed on a day that was described by Ms Williams as not being an acute ‘flare up’ day. It therefore provides a good guide to her level of functioning between acute episodes. In this regard, Mr Finnegan told the Tribunal that Ms Williams’ flare ups occurred approximately every three to four months. While Mr Finnegan noted in his May 2020 report that when Ms Williams’ physical or mental health deteriorates so does her self-care, such that she ‘showers infrequently, doesn’t prepare nutritious meals, doesn’t attend to dishes and household cleaning’, Mr Finnegan acknowledged that he ‘has not adequately assessed’ Ms Williams’ self-care.[47]
[47] Exhibit 1, pages 267-268.
While the evidence indicates that Ms Williams has some reduced functional capacity in the activity of self-care, it does not demonstrate a substantial reduction in her functional capacity to undertake the tasks associated with this activity. As the Tribunal said in Madelaine and NDIA [2020] AATA 4025, having a substantially reduced functional capacity for self-care ‘imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being’.[48] The evidence before the Tribunal was that Ms Williams can independently perform all of the self-care activities listed in the Access Guideline, being personal care, hygiene, grooming and feeding herself, showering, bathing, dressing, eating, toileting, grooming and caring for her own heath care needs and there are no significant gaps in her capacity to do so, although again noting that she has assistance with three other related tasks, being making the bed, vacuuming and mopping. Having regard to all the activities of self-care, this reflects some reduced functional capacity, but not a substantial one as required for Ms Williams to satisfy subsection 24(1)(c)(v) of the NDIS Act.
[48] Madelaine and NDIA [2020] AATA 4025, [121].
Self-management
Based on the evidence, the Tribunal is not satisfied that Ms Williams’ impairments result in a ‘substantially reduced functional capacity’ to undertake the activity of self-management, as required by subsection 24(1)(c)(vi) of the NDIS Act. In Mulligan and NDIA [2015] AATA 974 at [138], the Tribunal defined self-management as being ‘a cognitive capacity to organise one’s life, to plan and make decisions, and to take responsibility for oneself’.
In her statement from March 2021, Ms Williams relevantly said as follows:[49]
I find paperwork hard to understand and I get overwhelmed when dealing with organisations.
Because of my learning disability I cannot use a directory to find contact details when I have a problem, and I cannot use online services.
I need others to tell me how to do things like contact organisations because I have difficulty understanding the first step. I rely on my friends to explain to me what to do.
When I try to contact an organisation, I find that at the end of the process I am fatigued and can’t keep up. I often find I miss out on deadlines because I can’t get things done in time.
When I first moved into my home there were things which needed to be fixed by the insurance company. I found that I could not keep up with what the insurance company was asking and missed the deadlines.
I have always had problems remembering dates and times and often miss important dates.
All my life I have always been unable to follow through on processes because I am so exhausted and overwhelmed that I either withdraw or become too unwell.
[49] Exhibit 1, page 279.
In his May 2020 report, Mr Finnegan stated that Ms Williams is:[50]
significantly impacted by her mental state. Her learning difficulties mean she has some limitations on her capacity to manage paperwork and dealings with burochratic [sic] processes at all times. However, when in a stable mental state she is able to function relatively well with decision making, pursuing interests, etc. During episodes of Anxiety, Depression or high distress, her self-management deteriorates and she requires considerable support to plan and complete self-management processes.
…
Motivation (which is impacted by Depression, Chronic Fatigue Syndrome and Rheumatic illness) plays a role interfering with her self-management, such that when one of these conditions flares up, she has difficulty taking the necessary steps to function effectively. For instance, it becomes difficult for her to attend doctor’s appointments, go to shops, complete tasks like paying bills. Contacting organisations/attending to jobs around home and property.
[50] ibid, pages 267-268.
Despite Mr Finnegan reporting that Ms Williams is ‘significantly impacted’ in the area of self-management, he also said that she has ‘some limitations’ in this activity, which related to ‘paperwork’ and bureaucratic processes. This was further qualified to be related to when Ms Williams had a ‘flare up’ of her impairments and that she can ‘function relatively well’ when in a stable mental state. As previously noted in these reasons, in accordance with the Access Guideline, the assessment of Ms Williams’ functional capacity in all activities is to be determined between acute episodes. Mr Finnegan also noted that he ‘largely’ agreed with Ms Curdie’s assessment that Ms Williams’ ‘functioning is mixed’, being able to manage well in some areas, but then ‘struggling with marked disorganisation’. This, however, does not amount to a substantial reduction in functional capacity such as to meet the legislative test. Mr Finnegan did not undertake a detailed assessment of Ms Williams’ capacity for self-management, such as in relation to planning and decision-making, and had not seen her professionally for approximately 18 months. He also referred to Ms Williams’ capacity for self-management by reference to her difficulties with significant decisions in her life, what he referred to as ‘major life decisions’, such as the purchase and sale of property, whether to continue prescribed medication and her taxation issues. With respect, however, these matters can be difficult for most, if not all, people and, while demonstrating some reduced functional capacity, do not amount to a substantially reduced capacity for self-management as contemplated under the NDIS legislation and the associated policy document.
The occupational therapist, Ms Curdie, reported that Ms Williams:[51]
has demonstrated some capacity to manage high-level decision at a reasonable level for both managing her evacuation when the bush fires on two occasions in 2019/2020. It has been reported in other correspondence, she has had difficulty managing financial and tax issues however, these were not disclosed at the time of the assessment to the assessor. She demonstrated a good capacity to manage a situation with her chickens who had not evacuated with her by segregating those chickens that were exposed to tapeworm and those that had not been exposed to different pens and how she would manage that situation. Ms Williams was able to identify her inability to drive once she returned and mail was received however, I note that she required assistance from someone to take her to Services NSW to renew her driver’s licence.
…
From the information obtained during the assessment, it appears that Ms Williams requires some assistance with higher executive functioning which includes her financial tax matters or resolving some home maintenance activities. It appears that also her financial management and focus of her spending appears to be significantly on her chickens which is a valued activity to her.
[51] Exhibit 1, page 306.
Ms Williams bought her 100-acre rural New South Wales property in 2009 and has lived there alone since this time. She pays the bills, manages approximately 100 chickens and evacuated during the bushfires. Furthermore, Ms Williams detailed the manner in which she manages her chickens and their care. She understands the genetic issues, oversees their breeding, has engaged veterinarians in relation to certain health issues and tends to the chickens’ requirements. Ms Williams recognised the need to evacuate the property during the bushfires and assessed that this would not be a single event and therefore remained away for a period of time. At the evacuation centre, she communicated the issue of a large number of chickens remaining alone on the property and this enabled the provision of support to have them safely removed. The Tribunal has previously detailed the issue with the composting toilet on the property, the planning and decision-making process regarding the continuation of Ms Williams’ medication, her understanding of food intolerances and the purchase of groceries. Mr Finnegan also confirmed Ms Williams’ ‘very regular’ attendance at their appointments, ‘she displayed a high commitment to the process, ‘rarely’ missed an appointment and ‘applied herself to the therapy sessions and the homework assignments’.[52] There was little evidence regarding management of finances, but Ms Williams indicated that she had money to renovate the house and this was not an issue. That is, there was no evidence before the Tribunal that Ms Williams was not managing her finances.
[52] Exhibit 1, page 260.
As with the other two activities in dispute in this proceeding detailed above in these reasons, while the Tribunal is satisfied that Ms Williams does have some reduced functional capacity in the activity of self-management, this does not rise to the requisite substantially reduced functional capacity under subsection 24(1)(c) of the NDIS Act. The evidence before the Tribunal was that Ms Williams can find ‘major life decisions’ difficult, however this does not reflect a substantially reduced functional capacity in the activity of self-management. The weight of evidence, set out above, was that Ms Williams has the cognitive capacity to organise her life, to plan and make decisions and take responsibility for herself. Accordingly, the Tribunal finds that Ms Williams does not have a substantially reduced functional capacity to undertake the activity of self-management due to her impairments, as required by subsection 24(1)(c)(vi) of the NDIS Act.
In conclusion, the Tribunal is not satisfied the evidence before it supports a finding that Ms Williams’ impairments result in a ‘substantially reduced functional capacity’ to undertake one or more of the prescribed activities required to satisfy subsection 24(1)(c) of the NDIS Act including, most relevantly in this proceeding, the activities of learning, self-care or self-management.
Is Ms Williams likely to require support under the NDIS for her lifetime?
The Rules do not expressly address consideration of whether a person is likely to require support under the NDIS for their lifetime, however the Access Guideline states the following regarding the lifetime NDIS support criterion in subsection 24(1)(e) of the NDIS Act:
8.5 When is a person likely to require support under the NDIS for their lifetime?
The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(1)(e)).
If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person's lifetime, despite the variation (section 24(2)).
The NDIA is required to consider a prospective participant’s overall circumstances and conclude that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and NDIA [2015] AATA 974 at [153]).
For example, if a person's support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.
When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person's lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]–[150]). [emphasis in original]

As set out above in this decision, the Tribunal has found that Ms Williams’ impairments do not result in her having a ‘substantially reduced functional capacity’ to undertake one or more of the activities under subsection 24(1)(c) of the NDIS Act. As a result of those findings and the conjunctive nature of subsection 24(1) of the NDIS Act, requiring satisfaction of all criteria,[53] it follows, and the Tribunal is satisfied, that Ms Williams is not likely to require support under the NDIS for her lifetime pursuant to subsection 24(1)(e) of the NDIS Act.
[53] Howard and National Disability Insurance Agency [2019] AATA 2, [25].
Furthermore, as the Tribunal observed in GXYZ and NDIA [2020] AATA 3907 at [121]-[122]:
Reading the policy guidance set out in chapter 8.5 of the Access Operational Guidelines, I consider that it would be inconsistent for the Tribunal to make a finding that a prospective participant is likely to require support under the NDIS for their lifetime in circumstances where the evidence shows they do not have a substantially reduced functional capacity to undertake activities in the domains of communication, social interaction, learning, mobility, self-care or self-management.
As I find the applicant’s impairments do not result in substantially reduced functional capacity to undertake activities, I am satisfied he will not require assistance under the NDIS for his lifetime. Therefore, the applicant does not meet the requirement of paragraph 24(1)(e) of the NDIS Act.
The Tribunal’s finding does not discount the significant nature of Ms Williams’ impairments or question her requirement for support in relation to those impairments from other services. Ms Williams is presently receiving support through her My Age Care Home Package provided by the Commonwealth, which includes access to support workers.[54] Ms Williams is also aware of, and accessing, allied health support under a Chronic Disease Management Plan. She can also access psychological, occupational therapy and social work services through a GP Mental Health Treatment Plan.[55]
[54] Exhibit 4.
[55] Exhibit 2.
CONCLUSION
The Tribunal acknowledges that Ms Williams’ impairments significantly impact her life. However, the Tribunal has found, on the totality of the evidence, that Ms Williams’ impairments do not result in a substantially reduced functional capacity to undertake the prescribed activities as required under subsection 24(1)(c) of the NDIS Act.
In circumstances where the Tribunal has found that Ms Williams does not meet the disability requirements in section 24 of the NDIS Act, she does not, at this time, meet the access criteria under section 21 of the NDIS Act to become a participant in the NDIS.
The Tribunal understands that this will be a difficult decision for Ms Williams to receive. It must be emphasised that the Tribunal’s decision does not diminish the nature and effect of Ms Williams’ impairments, or indeed their existence, but rather is a finding that the requisite legislative criteria requiring a substantially reduced functional capacity to undertake one or more particular activities have not been met at this time. While Ms Williams expressed an unwillingness to again apply for access to the NDIS, this course is open to her in the future if her functional capacity for one or more of the prescribed activities becomes substantially reduced as a result of her impairments and she continues to meet the other required legislative criteria.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 106 (one-hundred and six) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

....................................[sgd]...................................
Associate
Dated: 20 September 2021

Date(s) of hearing:

26-27 August 2021

Date final submissions received:

Advocate for Applicant:

14 May 2021

Mr Zaya Toma, Multicultural Disability Advocacy Association

Counsel for Respondent:

Ms Prue Bindon

Solicitor for Respondent:

Ms Blanca Ramirez, National Disability Insurance Agency

Date(s) of hearing:	26-27 August 2021
Date final submissions received: Advocate for Applicant:	14 May 2021 Mr Zaya Toma, Multicultural Disability Advocacy Association
Counsel for Respondent:	Ms Prue Bindon
Solicitor for Respondent:	Ms Blanca Ramirez, National Disability Insurance Agency