XDWZ and National Disability Insurance Agency

XDWZ and National Disability Insurance Agency [2023] AATA 1481 (31 May 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2021/4129
Re:XDWZ
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISON
Tribunal:Senior Member K. Parker
Date:31 May 2023
Place:Melbourne

The Tribunal affirms the decision under review.
................................[sgd]........................................
Senior Member K. Parker
Catchwords
NATIONAL DISABILTY INSURANCE SCHEME – access request – whether access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) are met – “disability requirements” – “early intervention requirements” – Applicant has a disability arising from various impairments – occipital neuralgia – post-traumatic stress disorder – whether impairments are, or likely to be, permanent – whether impairments have resulted in substantially reduced functional capacity in any one of the six prescribed activities – decision under review affirmed
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Secondary Materials
National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 1 July 2022) < align="left">Victoria State Government, Victorian Aides and Equipment Program Guidelines (Guidelines, September 2020) <victorian-aids-and-equipment-program-operational-guidelines.pdf (health.vic.gov.au)>
REASONS FOR DECISION
Senior Member K. Parker
31 May 2023
INTRODUCTION

This application is about whether the Applicant, XDWZ,[1] should be granted access as a participant in the National Disability Insurance Scheme (NDIS). XDWZ seeks review of a decision made on 19 May 2021 under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), confirming an earlier decision by the Respondent, the National Disability Insurance Agency (NDIA), not to grant access to XDWZ as a participant in the NDIS.
[1] Of its own volition, the Tribunal made orders under s 35 to use the pseudonym, XDWZ, in place of the Applicant’s name and to otherwise change the names of various persons and places so that the Applicant is unable to be identified. The Tribunal made those orders because of the reported history of domestic violence and sexual assault, and the psychological vulnerability of the Applicant.
The Tribunal’s jurisdiction arises under s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), operating in conjunction with s 103 of the NDIS Act.
For the reasons set out below, the Tribunal is not satisfied that the access requirements under s 21 of the NDIS Act are met and affirms the decision under review.
BACKGROUND
Family and employment background
XDWZ is a 55-year-old woman. English is her first language. XDWZ owns her own home (subject to a mortgage) with a garden in the suburbs of Melbourne. XDWZ is single, having separated from her previous de facto partner, who was also her “carer”,[2] in about July 2021.
[2] That is, Mr Y received a carer’s payment and/or allowance while caring for XDWZ when they lived together.
XDWZ has three children. Her eldest child is an adult and no longer lives in the family home. XDWZ’s two youngest teenage children both live with her in the family home. They have been diagnosed with the condition of autism spectrum disorder (ASD) and are participants in the NDIS. XDWZ’s eldest child is also reported to have ASD and significant mental health issues. XDWZ’s two youngest children are both verbal and high functioning. They attend a mainstream secondary school and XDWZ told the Tribunal one of them is attaining A-grades at school in mathematics and has been awarded a partial school fees scholarship. XDWZ’s two youngest children will often provide support to XDWZ at times, particularly when it comes to helping her using her devices and checking her emails or to take the laundry basket out for her when she does the washing.
XDWZ shares the care of her two youngest children with their father. These two teenage children spend every second weekend in their father’s care, and the remainder of the time they are cared for by XDWZ.
XDWZ has not been gainfully employed since before the birth of her first child (that is, she has been unemployed for over 20 years).[3] XDWZ told the Tribunal at the hearing that her first husband considered that a mother should stay at home to look after the children.
[3] Exhibit R2, Hearing Tender Bundle (HTB), p. 28.
XDWZ has reported to those who have medically examined her, that she has experienced both developmental trauma and trauma from her past relationships. XDWZ has reported to Dr R, a consultant psychiatrist who examined XDWZ at the request of the NDIA on 4 April 2022, that her first husband was a member of a bikie gang and she said she was fearful for her safety when she left that marriage, as she said she knew what he was capable of doing to her.[4] XDWZ reported that she was diagnosed as having post-traumatic stress disorder (PTSD) as a result of experiencing sexual and physical assault perpetrated by her first husband.[5] XDWZ told the Tribunal at the hearing of this application, that her most recent de facto partner, Mr Y, had also physically abused her, causing an injury to her shoulder.
[4] Exhibit R2, HTB, pp. 29-30.
[5] Exhibit R2, HTB, pp. 29-30.
The diagnosis of PTSD was confirmed by Dr R following her examination of XDWZ on 4 April 2022.[6]
[6] Exhibit R2, p. 32 and Exhibit A2, pp. 4-6.
XDWZ sustained a physical injury on 18 September 2013, when one of her children jumped on her (Accident).[7] A short time after the Accident, she was hospitalised for two weeks to treat the resulting symptoms. She was later diagnosed with “occipital neuralgia” by her treating consultant neurologist, Dr L.[8]
[7] T-Documents, T7/31.
[8] Refer Dr Z’s letter dated 4 March 2021 at T-Documents T8/34.
XDWZ gave evidence that she receives a steroid injection every 10 to 12 weeks (Nerve Block Injection) to relieve the symptoms arising from the occipital neuralgia. This was confirmed by XDWZ’s treating general practitioner, Dr Z, who gave evidence at the hearing and was also consistent with a letter by Dr L, dated 12 January 2021, stating that XDWZ had “responded well to occipital [Nerve Block Injections]”. Dr L states in this letter that this response “would only last for 2-3 months”.[9]
[9] T-Documents, T5/25.
Request for access to the NDIS
The NDIA’s records show that XDWZ made a request to the NDIA under s 18 of the NDIS Act, to be granted access as a participant in the NDIS. At the hearing XDWZ said that she had made a request earlier in time which was lost in the system. It appears from the T-Documents that, by letter dated 15 May 2019, XDWZ wrote to the NDIA to submit a copy of a NDIS Supporting Evidence Form (SEF) which was completed by Dr Z on 22 September 2017 (2017 SEF).[10]
[10] T-Documents, T4/19-24.
It does not appear that XDWZ has completed a NDIS Access Request Form at any time when making her request. At the hearing, XDWZ said she does not recall filling one out.
When Dr Z gave evidence at the hearing, he told the Tribunal that he does not recall completing any subsequent SEFs (that is, other than the 2017 SEF) in respect of XDWZ. He said if he were to update the 2017 SEF to the current time, he would not change anything. He said that if anything, he would expect that XDWZ’s condition and impairments have worsened since 2017, and he remarked that XDWZ no longer has a partner to help her.
On the 2017 SEF, Dr Z describes XDWZ “primary impairment” as “Occipital Neuralgia” and that she has had that “impairment” for four years.[11] When Dr Z was asked whether the impairment was likely to be lifelong, on the 2017 SEF he answered, “uncertain prognosis”.[12] Dr Z states on this form that current and/or past treatment undertaken by XDWZ has included medications, dry needling, Nerve Block Injections, physiotherapy, and osteopathy.[13]
[11] T-Documents, T4/20.
[12] T-Documents, T4/20.
[13] T-Documents, T4/20.
At Question 2.5 on the 2017 SEF, Dr Z was asked whether XDWZ had another impairment that has had a significant impact on her, and he answered “[n]o”.[14] At Question 2.9, Dr Z was asked whether XDWZ had any other impairments, to which is answered “Anxiety Disorder (suffers with this quite frequently but has strategies to cope [illegible])”.[15] Dr Z was asked at the hearing whether he would defer to the diagnosis given by Dr R, as a psychiatrist, in respect of XDWZ’s psychosocial conditions, namely, that XDWZ had PTSD, of which anxiety and depression is a part of this condition, rather than being separate conditions in their own right, and Dr Z confirmed that he would.
[14] T-Documents, T4/20.
[15] T-Documents, T4/20.
At Question 3, Dr Z was asked whether there were any early intervention supports that are likely to benefit XDWZ by reducing her future needs for supports to which he answered “[n]ot at this stage”.[16]
[16] T-Documents, T4/21.
On the 2017 SEF, Dr Z states that XDWZ required assistance with mobility, communication, social interaction, learning, self-care, and self-management; that is, all six of the prescribed activities referred to in s 24(1)(c) of the NDIS Act.[17] His remarks about XDWZ’s capability in each of those areas are set out in detail further below.
[17] T-Documents, T4/22-24.
Decision under review and application for review by this Tribunal
On 17 February 2021, a delegate of the Chief Executive Officer of the NDIA (CEO) decided not to grant access to XDWZ to the NDIS, on the basis that she did not meet the access criteria set out in s 21 of the NDIS Act, because she did not meet the “disability requirements” under s 24 (specifically, s 24(1)(b), which requires her to have an impairment that is permanent, or likely to be permanent), nor the “early intervention” requirements under s 25 of the NDIS Act.[18]
[18] T-Documents, T6/26-30.
By letter dated 25 February 2021, XDWZ sought internal review of this decision by a “reviewer” of the NDIA under s 100(6) of the NDIS Act.[19]
[19] T-Documents, T7/31-33.
On 19 May 2021, the reviewer confirmed the earlier decision not to grant XDWZ access to the NDIS.[20] The reviewer accepted that XDWZ met the “age requirements” under s 22, and the “residency requirements” under s 23 of the NDIS Act, but not the “disability requirements” under s 24, or the “early intervention requirements” under s 25 of the NDIS Act.
[20] T-Documents, T2/7-16.
Regarding s 24, the reviewer accepted that XDWZ has a neurological impairment based on the diagnosis of occipital neuralgia, and that this impairment is likely to be permanent.[21] However, the reviewer was not satisfied that XDWZ’s impairment has resulted in a substantially reduced functional capacity to undertake one of the six prescribed activities listed in s 24(1)(c) of the NDIS Act.[22] The reviewer notes that XDWZ’s partner at that time, Mr Y, made a witness statement stating that:[23]
(a)most of the time XDWZ is able to get the children ready for school and to do the chores attached to this;
(b)sometimes XDWZ is well enough to attempt laundry tasks;
(c)on most occasions, XDWZ is able to get herself breakfast and lunch; and
(d)on most mornings, depending how XDWZ feels, she is able to go for a walk with the dog, and this occurs two or three times per week.
[21] T-Documents, T2/11.
[22] T-Documents, T2/12-14.
[23] T-Documents, T2/13.
The reviewer was not satisfied that XDWZ usually required the assistance of another person or that she was unable to participate completely or effectively without assistive technology or equipment (other than commonly used items, such as a walking stick) in one of the six prescribed activities in s 24(1)(c) of the NDIS Act.[24]
[24] T-Documents, T2/12-14.
The reviewer accepted that the impairment affected XDWZ’s capacity for economic and social engagement under s 24(1)(d) of the NDIS Act. However, the reviewer was not satisfied that XDWZ is likely to require lifetime support of the NDIS. The reviewer considered that the supports that XDWZ requires are more appropriately provided by community and mainstream systems of support (or in other words, the reviewer decided that XDWZ did not meet the criterion under s 24(1)(e) of the NDIS Act).[25]
[25] T-Documents, T2/14.
Regarding the early intervention criteria under s 25 of the NDIS Act, the reviewer considered that due to the long-standing nature of her condition, the supports she requires are not “early intervention in nature”.[26] The reviewer also states that the information provided had not demonstrated how the provision of early intervention support was likely to alter the trajectory of XDWZ’s impairment and reduce her future needs for support in relation to disability.
[26] T-Documents, T2/15.
On 23 June 2021, XDWZ sought review of this decision under s 103 of the NDIS Act, by the National Disability Insurance Scheme Division of the Administrative Appeals Tribunal (Tribunal).[27]
[27] T-Documents, T1/1-5.
EVIDENCE AND SUBMISSIONS
The NDIA lodged with the Tribunal a set of documents pursuant to s 37 of the AAT Act (T-Documents).
The parties lodged a consolidated joint hearing tender bundle (HTB), comprising the parties’ respective submissions and evidence, which will be referred to, as relevant, in these Reasons for Decision. The Tribunal received the exhibits contained in the HTB into evidence in this proceeding.
XDWZ lodged a witness statement, signed by her (now ex-) de facto partner, Mr Y, on 19 April 2021 (Mr Y’s Statement).[28] It states that he had been XDWZ’s full time carer for four years. Mr Y was not called to give evidence at the hearing. XDWZ gave evidence that they had separated in about July 2021 and, from what XDWZ told the Tribunal, it appeared that they did not part on good terms. XDWZ reported an instance of physical abuse by Mr Y which she said had injured her shoulder. XDWZ also mentioned her concerns about whether Mr Y had taken advantage of her, from a financial perspective. The Tribunal considers that it is understandable as to why Mr Y was not called by XDWZ to give evidence at the hearing, given the reported history of abuse and breakdown of the relationship between XDWZ and Mr Y. The Tribunal does not view Mr Y’s evidence adversely by reason only of him not being available at the hearing for cross-examination.
[28] T-Documents, T1/38-40.
The Tribunal conducted a three-day substantive hearing on 1, 2 and 12 May 2023. XDWZ was unrepresented. She demonstrated that her intellect is intact and that she was a capable self-advocate. Mr Mathew Kenneally of counsel appeared on behalf of the NDIA.
At the hearing, oral evidence was given by XDWZ. The following expert witnesses were called to give evidence at the hearing:
(a)(called by XDWZ):
(i)XDWZ’s treating counselling psychologist, Dr LS; and
(ii)XDWZ’s treating general practitioner, Dr Z;
(b)(called by the NDIA):
(iii)independent occupational therapist, Ms P; and
(iv)independent consultant psychiatrist, Dr R.
On 10 November 2022, the NDIA lodged its statement of facts, issues, and contentions (NDIA’s SFIC) and provided a copy to XDWZ. On 27 April 2023, the NDIA lodged a supplementary set of submissions (NDIA’s Supplementary Submissions) to correct an error in the NDIA’s SFIC (specifically, because it had referred to an out-of-date “access guidelines” and to highlight some principles arising from the Full Court of the Federal Court of Australia’s decision in National Disability Insurance Agency v Foster[29] as relevant to the issues in this application).
[29] [2023] FCAFC 11.
On the second day of the hearing, Dr LS lodged an updated set of clinical notes. They included notes for sessions with XDWZ on additional dates, which were omitted from the original set of clinical notes she produced to the Tribunal. This omission was identified by the NDIA as Dr LS was cross-examined at the hearing.
The parties were provided with an opportunity to make oral closing submissions at the conclusion of the hearing and did so.
ISSUES
Section 21 of the NDIS Act provides that a person satisfies the access criteria if they meet:
(a)the “age requirements” under s 22;
and, at the time of considering the access request;
(b)the “residence requirements” under s 23 of the NDIS Act; and
(c)either the “disability requirements” under s 24 or the “early intervention requirements” under s 25.
It is not disputed by the NDIA that, at the time XDWZ made her access request, she met both the “age requirements” and “residence requirements” under ss 22 and 23 of the NDIS Act. The Tribunal finds accordingly.
At the commencement of the hearing, Mr Kenneally contended, on behalf of the NDIA, and the Tribunal agrees, that the issues arising for determination by the Tribunal in this application are:
(a)whether XDWZ meets the “disability requirements” under s 24 of the NDIS Act; and
(b)if not, whether XDWZ meets the “early intervention requirements” under s 25 of the NDIS Act.
The NDIA’s position changed slightly as this proceeding unfolded and as new evidence came to light. This is not an unusual occurrence in a NDIS access matter. During oral closing submissions, Mr Kenneally summarised the NDIA’s position in relation to this application as follows:
(a)the NDIA accepted that XDWZ had physical and sensory impairments and an impairment attributed to by a psychosocial condition, and that these impairments are likely to be permanent (within the meaning of ss 24(1)(b) and 25(1)(a) of the NDIS Act), resulting from the following conditions:
(i)PTSD; and
(ii)occipital neuralgia.
(b)the NDIA considers that the evidence does not establish that XDWZ has “substantially reduced functional capacity” for the purpose of s 24(1)(c) of the NDIS Act, in relation to her impairments to undertake any one of the six prescribed activities; and
(c)the NDIA considers that XDWZ does not meet the “early intervention requirements” under s 25 of the NDIS Act.
XDWZ’s position is that she meets the “disability requirements” under s 24 or, alternatively, the “early intervention requirements” under s 25 of the NDIS Act.
ACCESS RULES AND POLICY GUIDANCE
Section 209(1) of the NDIS Act provides that the Minister may, by legislative instrument, make rules prescribing matters required or permitted under the NDIS Act, or necessary or convenient to be prescribed, in order to carry out or give effect to the NDIS Act. Section 27 of the NDIS Act permits the Minister to make NDIS rules prescribing circumstances in which, or criteria to be applied, in assessing whether any of the disability or early intervention requirements are met under ss 24 or 25 of the NDIS Act.
Pursuant to s 209(1), in conjunction with s 27, the Minister has issued the following rules by legislative instrument: National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Access Rules).
On 1 July 2022, the NDIA updated its policy guidance dealing with the assessment of whether a person meets the disability or early intervention requirements under ss 24 or 25 of the NDIS Act: Applying to the NDIS[30] (Access Guidelines). In accordance with established legal principles, the Tribunal will take this policy guidance into account when making this decision, unless there are cogent reasons not to do so, for instance, if the policy guidance is inconsistent with the provisions of the NDIS legislative regime. The Tribunal agrees with Mr Kenneally’s submission at the hearing, that the Tribunal is not bound by the definitions provided in the guidance as to the six prescribed activities in s 24(1)(c) of the NDIS Act when assessing the criteria relating to “substantially reduced functional capacity”. The Tribunal will consider those definitions as a starting point.
CONSIDERATION OF WHETHER XDWZ MEETS THE “DISABILITY REQUIREMENTS”
[30] National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 1 July 2022) < type="1">
The “disability requirements” under s 24 of the NDIS Act are made up of five mandatory criteria as follows:
24 Disability requirements
(1)       A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)        communication;
(ii)       social interaction;
(iii)      learning;
(iv)      mobility;
(v)       self care;
(vi)      self management; and
(d)         the 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.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
Section 24(1)(a) - Disability
The first criterion, under s 24(1)(a) of the NDIS Act, requires a person seeking access to the NDIS to have 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”.
In National Disability Insurance Agency v Davis, Mortimer CJ made the following judicial observation:[31]
What the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.
[31] [2022] FCA 1002, [69].
The NDIA provides the following policy guidance to decision-makers in its Access Guidelines, which broadly reflects s 24(1)(a):[32]
[32] Refer Access Guidelines issued on 1 July 2022, pp. 6-7.
Is your disability caused by an impairment?
When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment.
An impairment is a loss or significant change in at least one of:
•          your body’s functions
•          your body structure
•          how you think and learn.
To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below
•intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information
•cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention
•          neurological – such as how your body functions
•          sensory – such as how you see or hear
•          physical – such as the ability to move parts of your body.
You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and tasks due to your mental health.
It doesn’t matter what caused your impairment, for example if you’ve had it from birth, or acquired it from an injury, accident or health condition.
It also doesn’t matter if you have one impairment, or more than one impairment.
The Tribunal considers that some of the definitions attributed to the different types of impairments referred to in s 24(1)(a) of the NDIS Act, as set out in the Access Guidelines extracted in the paragraph above, could have been more expansive and others more confined. For instance:
(a)in reference to a neurological impairment, the NDIA states “such as how your body functions”. The definition of the word “neurological” in the Macquarie Dictionary Online means “deals with the nerves or the nervous system”. The Access Guidelines refers to “How the body functions”, which can encompass a whole range of different types of impairments, including impairments related to the nervous system. The Tribunal considers that a neurological impairment is an impairment that specifically deals with how the nervous system of the body functions; and
(b)in reference to a sensory impairment, the Macquarie Dictionary Online defines “sensory” as relating to sensation, or, in physiology, denoting a structure that conveys an impulse which results or tends to result in sensation, as a nerve. The Access Guidelines refer to sensory impairments “such as how you see or hear”. The Tribunal accepts that an impairment of how a person sees or hears would constitute a sensory impairment. Based on the dictionary definition, the Tribunal considers that the ordinary meaning of the phrase “sensory impairments” may also encompass impairments relating to other senses, such as smell, taste, or touch, and the sensation of pain and how a person experiences pain and the impairments arising from their experience of pain, or how they experience hot and cold temperatures.
The Tribunal does not, however, take issue with the definition attributed to physical, intellectual, or cognitive impairment as ascribed by the NDIA in its policy guidance.
At the outset of the hearing, the NDIA conceded that XDWZ had a physical impairment and an impairment to which a psychosocial disability is attributable. Mr Kenneally did not disagree when it was put to him that XDWZ might also have a sensory impairment. The Tribunal considers that XDWZ has those impairments, as explained below. It was less clear whether XDWZ also has an intellectual impairment or cognitive impairment. XDWZ complained of the impact of her disability on her ability to think, take in information, concentrate and make decisions when she had a “bad day”.
XDWZ states, in her letter dated 25 February 2021 (XDWZ’s 2021 Letter), that during the first year after the Accident, she had “very little memory”.[33] She said she was bedridden with pain and unable to care for herself or her three children. In Dr R’s expert report dated 11 April 2022 (Dr R’s Report), Dr R reports that XDWZ had told her that XDWZ’s ex-husband had decided that XDWZ “should go to bed” and XDWZ spent the next six months bedbound, getting up only to use the toilet and occasionally to see a doctor.[34] Dr R reports that XDWZ had told her she was in agony for this whole time, was “constantly dry retching”, and “had a pain that started at the base of her neck and radiated to the right side of her temple with a stabbing pain in her nose and ear”. At the hearing, XDWZ said her muscles had wasted away and she had to learn how to walk again.
[33] T-Documents, T7/31.
[34] Exhibit R2, HTB p. 27.
In XDWZ’s 2021 Letter, XDWZ states that she was fully reliant on medications (approximately 20-30 per day).[35] She said that if she inadvertently missed her “main medication” that she was unable to function and had to retreat to a darkened and quiet room for a few days to allow the medications to settle the pain and reduce anything caused from the “firing” of the nerve. At the hearing, XDWZ gave evidence about her current medications. They were not as extensive as described in XDWZ’s 2021 Letter. Instead, XDWZ gave evidence that she took the following medications currently:
(a)Nortriptyline, which she said is an anti-depressant that works on the nerves. She said she takes a low dose and that her doctor had recommended she split the dose between the morning and night;
(b)Domperidone;
(c)Valium, for anxiety and pain; and
(d)Panadol.
[35] T-Documents, T7/31.
Time has moved on since the Accident, and XDWZ is no longer bedbound. At the hearing, she gave evidence that she would have about 10 to 15 bad days per month when she could not move around very much due to pain and symptoms arising from her occipital neuralgia.
In XDWZ’s 2021 Letter, she described her symptoms as including the following:[36]
[36] T-Documents, T7/31-33.
(a)intense pressure/burning pain in one side of her head;
(b)head pain, crushing sensation, at times constant or intermittent;
(c)shooting pain in the neck, head, and shoulders;
(d)ice-pick stabbing pain in her ear and eye;
(e)dizziness/light-headedness;
(f)nausea;
(g)continual neck pain;
(h)light, smell, and noise sensitivity;
(i)fatigue;
(j)trouble focussing and concentrating;
(k)constant sleep issues; and
(l)vertigo.
Dr Z issued a letter dated 4 March 2021.[37] He refers to the Accident which he states had caused “a grievous neck injury which started her on a downward spiral of chronic persistent disabling headaches”. Dr Z states that XDWZ saw a neurologist/pain specialist who had diagnosed her with “right-sided occipital neuralgia” and that she was treated by frequent intermittent nerve blocks “even to this day”. Dr Z states in this letter that XDWZ was “most often confined to her home (if not to bed), lying and resting and going out only for her necessities and school pick-ups”. He said he had seen her several times “distraught and in severe pain” and he has had to use Valium or similar to ease the pain and muscle spasms.
[37] T-Documents, T8/34.
At the hearing, XDWZ gave evidence that the Nerve Block Injections caused more pain in the first few days, so in the first week after the injection, she said she does “not do much”. She said after about nine or 10 weeks the effect of the Nerve Block Injection will “run out”. She said she does not want to get the Nerve Block Injections any more regularly than she does, which is about once every 10 to 12 weeks. XDWZ said the Nerve Block Injections make her episodes or headaches less severe, but they do not make them go away.
On the last day of the hearing on 12 May 2023, Dr Z gave evidence as follows as to his observations on when XDWZ had been to visit him at the clinic on one of her “bad days”. Dr Z said he observed her on those days to be “slow, physically” in the way she would walk and that her “gait was cautious”. He referred to her being “slow to respond” when conversing with her on a bad day and that she would shield her eyes. Dr Z said XDWZ had been placed on a Mental Health Plan (MHP). He said a MHP would entitle a person to a total of 10 sessions with a psychologist per year, which is subsidised under Medicare (that is, six sessions initially, and then another four sessions if the MHP is extended).
XDWZ’s treating consultant neurologist, Dr L, in a letter dated 17 December 2021 (Dr L’s December 2021 Letter), states he has been treating XDWZ for her headaches for many years.[38] He states he first saw XDWZ in 2013 and had tried multiple medications including Lyrica, Sandomigran and Nortriptyline. He said those medications were not effective or had caused significant side effects.
[38] Exhibit A1, HTB p. 3.
At the hearing, XDWZ told the Tribunal she was allergic to a lot of medications and could not take them. This was confirmed by Dr Z at the hearing on 12 May 2023.
In Dr L’s December 2021 Letter, he states that he considered XDWZ’s symptoms were consistent with right-sided occipital neuralgia. He states he had treated XDWZ with “right occipital [Nerve Block Injection] with Methylprednisolone and local anaesthetic every two to three months since 2018”. Dr L states that the injection had lessened the headaches by approximately 50% but that XDWZ would have “a background lingering headache”, which he stated is “quite disabling”. He stated XDWZ had reported that she was dependent upon her partner (at that time) and her friends for house chores, had not been able to work and her social function was restricted. Dr L stated that XDWZ had informed him that she required help to care for her children and to manage her daily tasks. He described the nerve block treatment as being “moderately effective”. He stated he had not been involved in her psychological care.
XDWZ’s treating psychologist, Dr LS, prepared a set of answers in response to a set of targeted questions which had been prepared by the NDIA. These are contained in Dr LS’s letter dated 22 December 2021 (Dr LS’s 2021 Letter).[39] In Dr LS’s 2021 Letter, she stated that she had been working with XDWZ since 2008 for psychological therapy and counselling.
[39] Exhibit A2, HTB, pp. 4-9.
At the hearing, Dr LS gave evidence that she had undertaken dialectical behaviour therapy (DBT) with XDWZ. She referred to having worked with XDWZ when she attended the [name omitted] Multidisciplinary Chronic Pain Management Clinic. In Dr LS’s 2021 Letter, she stated that XDWZ suffered from PTSD, with anxiety and panic attacks, as a consequence of multiple life-threatening events, and occipital neuralgia, which she described as a debilitating chronic pain condition.[40] At the hearing, Dr LS confirmed the diagnosis of PTSD.
[40] Exhibit A2, HTB, p. 4.
In Dr R’s Report, she opines that XDWZ meets the criteria in the DSM-5 for the condition of PTSD.[41] Dr R reports that XDWZ had a clear history of exposure to life-threatening events and sexual assault at the hands of her first husband. Dr R states that XDWZ has “marked alterations in arousal and reactivity with irritable behaviour, hypervigilance, exaggerated startle response, problems with concentration and sleep disturbance” and has reported “intrusive memories which cause an intense response of nausea and/or diarrhoea”, poor concentration and low energy levels.[42]
[41] Exhibit R2, HTB, pp. 26-39.
[42] Exhibit R2, HTB, p. 32.
Dr R states that XDWZ was fearful and felt unsafe, and that these impairments limited her engagement with the outside world. Dr R referred to the diagnosis of occipital neuralgia, as confirmed by her neurologist. Dr R states that XDWZ’s history was consistent with the diagnoses of occipital neuralgia and PTSD.[43]
[43] Refer Exhibit R2, HTB, pp. 32-33.
The evidence in this application supports a finding by the Tribunal that XDWZ has a disability caused by the following impairments:
(a)neurological, physical, and sensory (that is, related to her sensation of pain) impairments, arising from occipital neuralgia;
(b)a cognitive impairment, arising from occipital neuralgia and PTSD; and
(c)impairments to which a psychosocial disability to attributable, namely, PTSD.
For these reasons, the Tribunal is satisfied that XDWZ has met the mandatory criterion under s 24(1)(a) of the NDIS Act.
Section 24(1)(b) – Permanency
The second mandatory criterion, under s 24(1)(b) of the NDIS Act, requires a person seeking access to the NDIS to have one or more impairments that “are, or are likely to be, permanent”. The word “permanent” is not defined in the NDIS Act.
Rule 5.4 of the Access Rules provides that an impairment is considered permanent, or likely to be permanent, “only if there are no known, available and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment”.
Rule 5.5 provides that:
An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
Rule 5.6 provides that an impairment “may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent”. This rule also provides that:[44]
The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency (or likely permanency) to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
[44] The Tribunal notes that in National Disability Insurance Agency v Davis [2022] FCA 1002 at [64] – [75] that Mortimer CJ raised a question about the validity of Rules 5.4 and 5.6 being exclusionary in effect. No submission was made by either party in this application as to the validity of these two rules.
Rule 5.7 provides that if an impairment is of a degenerative nature, “the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition”.
The Federal Court of Australia’s decision in National Disability Insurance Agency v Davis (Davis),[45] stands as legal authority for how the Tribunal should approach the task of assessing whether a person’s impairments are, or likely to be, “permanent” and, therefore, whether the criterion under s 24(1)(b) of the NDIS Act is met by the person. Her Honour Chief Justice Mortimer held as follows (emphasis added):
[45] [2022] FCA 1002.
The meaning of “permanent” in s 24(1)(b)
…
[77]The Agency contended that the word “permanent” in s 24(1)(b) meant “irreversible”, or “untreatable”. In other words, the Tribunal, exercising the power in s 21 afresh on merits review, had to be satisfied that an impairment was, or was likely to be, irreversible before that provision was satisfied. The Agency submitted that the intention of the legislative scheme is that “obesity, as a reversible condition, was not permanent”.
[78]The Agency relied upon a dictionary definition from the Macquarie Dictionary:
adjective 1. lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding.
(Original emphasis.)
[79] It is notable that this definition does not include the term “irreversible”.
[80]There are two difficulties with the Agency’s submissions, only one of which goes to the correct construction of “permanent” in s 24(1)(b). The second difficulty, flowing from the correct construction of the term, concerns what the adjective attaches to in Ms D’s circumstances. In short, it does not attach to her morbid obesity. It attaches to the loss of or damage to her musculoskeletal, movement-related, and sensory functions identified by the Tribunal as impairments. As the Agency submitted, it was those impairments which were the qualifying impairments, as explained at [167] of the Tribunal’s reasons. The issue about which the Tribunal needed relevantly to be satisfied was whether those impairments were “permanent”. I deal with that below at [126]-[147].
[81]Returning to the construction question, I consider the Agency’s proposed construction to be unduly narrow. On the other hand, the respondent’s contention – namely that the correct meaning is “long-term” – also does not reflect the correct meaning, in the text and context, and taking into account the purpose of the access requirements.
[82]As I noted in Mulligan, the threshold access requirements are designed to impose some restrictions on who can access the funding for supports available under the NDIS. The objectives of the legislation in s 3, and the guiding principles in s 4, make it clear the scheme is focused on assisting people with disabilities to live their lives with dignity, with as much autonomy as possible, and with the ability to enjoy access to community and social engagement commensurate with people who do not live with disabilities. In other words, the scheme’s objectives and purposes concern lifelong experiences. As some textual indications make clear (s 24(2) being a particularly relevant one), the scheme recognises that what prevents or hinders an individual from full participation in the community, and the fullest enjoyment of their life that is possible, might fluctuate over their lives, and over parts of their lives. Impairments may not be stable. They may not always have the same effects. But they endure, and the legislative scheme recognises that people who must live with them – provided the remainder of the threshold criteria are met – should receive support throughout their lives, at the level they reasonably require.
[83]The guiding principles in s 4 make it abundantly clear that the scheme is directed at lifelong support, and lifelong benefits, in order to promote substantive equality between people with and without disabilities.
[84]The concept of “irreversible” is unhelpful, and a distraction from the context and purpose of the legislation. It prompts the question – ‘reversible by what?’ That is, how far does an NDIS applicant need to go to attempt to ‘reverse’ their impairment? And what does ‘reversible’ mean? Is it a question of degree? Fifty percent reversible? Thirty percent reversible? Does irreversible mean ‘cannot be improved’? Of course, many impairments covered by the NDIS – such as psychiatric impairments – can be ‘improved’ (in terms of the way an individual experiences the impairment) by therapy and medication. Are they ‘reversed’ if the medication is very successful? Obviously, the answer is they are not. The impairment remains, but the symptoms or manifestations may be controlled or somewhat ameliorated.
[85]The constructional choices must take into account the purpose of the threshold provisions in the context of this legislation, which addresses the lifelong needs of people living with disability, in terms of practical support and assistance to fulfil the rights and interests set out in s 4 of the Act, and also in the Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008). In my opinion, the correct meaning of “permanent” in s 24(1)(b) is “enduring”. This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.
[86]The critical point is that “permanent” is used as an adjective in s 24(1) to the noun “impairment” (or in the plural, “impairments”). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.
Impairments arising from PTSD

This Tribunal has found that XDWZ has a cognitive impairment and impairment to which a psychosocial disability is attributable. Those impairments arise from XDWZ’s diagnosed condition of PTSD. Dr R concluded as follows in her expert report:[46]
PTSD: She fulfils the DSM 5 criteria for PTSD.
I do not consider she has a separate anxiety disorder. Anxiety is a very large component of PTSD and it appears her anxiety is a response to traumatic memories and experiences.
[46] Exhibit R2, HTB, p. 32.
Dr R was also asked to provide an opinion about whether XDWZ’s impairments were permanent. In relation to her condition of PTSD, Dr R opined as follows:[47]
With regard to the PTSD she is receiving the most appropriate treatment. It is clear that her condition is largely stable as a result of her ongoing psychological interventions and I cannot think of any other non-available and appropriate evidence based treatments that would likely remedy for the purpose of NDIS criteria as curing or relieving the impairment.
[47] Exhibit R2, HTB, p. 34.
In Dr R’s Report, she states that XDWZ’s current medication regime appeared to be appropriate and that she considered that XDWZ’s impairment from the PTSD “is chronic, long-term and stable”.[48] Dr R said she did not consider that there needed to be any further medical treatment before a determination could be made about whether the condition or impairment is permanent or likely to be permanent.[49]
[48] Exhibit R2, HTB, p. 35.
[49] Exhibit R2, HTB, p. 35.
The NDIA accepts that XDWZ’s impairments arising from her condition of PTSD are likely to be permanent. The Tribunal is satisfied from the evidence before it, specifically, Dr R’s opinions as set out in the three paragraphs above, that XDWZ’s cognitive impairment and her impairment to which a psychosocial disability is attributable, both arising from her condition of PTSD, are likely to be permanent. The Tribunal concludes that XDWZ meets the criterion under s 24(1)(b) of the NDIS Act in respect of those two impairments.
Impairments arising from occipital neuralgia
In Dr R’s Report, she noted the diagnosis by Dr L of occipital neuralgia. Dr R stated that XDWZ has been prescribed a number of different medications for her occipital neuralgia but found it difficult to tolerate most of them.[50] As mentioned above at paragraph [57], at the hearing, Dr Z confirmed that XDWZ is sensitive to or has allergies to a lot of medication, as asserted by XDWZ. Dr R noted that XDWZ is on a low dose of a tricyclic antidepressant, Nortriptyline, which XDWZ had reported is having some effect on the pain.[51] Dr R stated in her report that she could not comment upon the treatments XDWZ had received for the occipital neuralgia.[52]
[50] Exhibit R2, HTB p. 33.
[51] Exhibit R2, HTB p. 34.
[52] Exhibit R2, HTB p. 34.
In Dr L’s letter dated 26 April 2021 (Dr L’s April 2021 Letter), he stated he has been treating XDWZ since 2013, and that her headaches had been persistent and “refractory to pharmacological treatment”.[53] Dr L stated he had tried XDWZ on various medications including Lyrica, Sandomigran and Nortriptyline, which resulted in adverse effects and did not provide any relief from her symptoms. Dr L stated that XDWZ returned to see him in 2018 and he had performed right occipital Nerve Block Injections on XDWZ, “roughly every 3 months”. Dr L stated that the Nerve Block Injections appeared to be more effective than the previous trials of oral medications. As mentioned above at paragraph [58], Dr L said they lessened her headaches by approximately 50%. Dr L states that XDWZ had also tried various allied health treatments, including physiotherapy, which he described as being ineffective. Dr L opined, in this letter, that there are no surgical interventions which would improve XDWZ’s symptoms.
[53] T-documents, T12, p. 41.
In Dr LS’s 2021 Letter, she confirmed that XDWZ had attended a multidisciplinary pain management clinic which had taught her many self-management skills.[54]
[54] T-documents, T13, pp. 42-44.
The Tribunal has found that XDWZ has neurological, physical, cognitive, and sensory (that is, related to her sensation of pain) impairments, arising from occipital neuralgia. The NDIA does not dispute that the impairments arising from the condition of occipital neuralgia are likely to be permanent. Based on the medical opinions of Dr L, as set out in paragraph [76], the Tribunal is satisfied that XDWZ’s neurological, physical, cognitive, and sensory (that is, related to her sensation of pain) impairments, arising from occipital neuralgia, are likely to be permanent and that she meets the criterion under s 24(1)(b) of the NDIS Act in relation to those impairments.
The Tribunal has found that XDWZ has a cognitive impairment, arising from occipital neuralgia and PTSD, and impairments to which a psychosocial disability is attributable, namely, PTSD. The NDIA does not dispute that the impairments arising from the condition of PTSD are likely to be permanent. Based on the medical opinions of Dr R, as set out in paragraphs [71] to [73] above, the Tribunal is satisfied that XDWZ’s impairments, arising from PTSD, are likely to be permanent, and that she meets the criterion under s 24(1)(b) of the NDIS Act in relation to those impairments.
Section 24(1)(c) – Substantially reduced functional capacity
The Tribunal has found that XDWZ’s cognitive impairment and impairment to which a psychosocial disability is attributable, both arising from her condition of PTSD, and her neurological, physical, cognitive, and sensory (that is, related to her sensation of pain) impairments arising from occipital neuralgia, are likely to be permanent and, therefore, she satisfies s 24(1)(b) of the NDIS Act. The Tribunal will refer to all of these impairments collectively as XDWZ’s Permanent Impairments. The next step is for the Tribunal to consider whether one or more of those Permanent Impairments have resulted in a “substantially reduced functional capacity” of XDWZ to undertake one or more of the activities prescribed in s 24(1)(c) of the NDIS Act, being “communication”, “social interaction”, “learning”, “mobility”, “self-care”, and “self-management” (Prescribed Activities).
The Access Guidelines provide the following guidance in relation to the question of whether the criterion under s 24(1)(c) of the NDIS Act has been met by a person:[55]
[55] Access Guidelines, pp. 8-9.
Does your impairment substantially reduce your functional capacity?
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
•Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
•Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
•Learning – how you learn, understand and remember new things, and practise and use new skills.
•Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
•Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
•Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.
These disability-specific supports include:
•a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
•assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
To help us decide if you’re eligible, we need to know your capacity and where you need more help. We get this information from your NDIS application.
If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.
We consider how you’re involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day to day life.
Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.
As observed by her Honour Chief Justice Mortimer in Mulligan v National Disability Insurance Agency (Mulligan),[56] this assessment calls for an examination of evidence given by the person seeking access to the NDIS, as well as medical and clinical evidence. The focus is a practical examination of what the person can and cannot do. Her Honour Chief Justice Mortimer in Mulligan described the assessment as “avowedly functional, and multi-faceted” and that:
…No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for.
[56] (2015) 233 FCR 201, [55]-[56].
As highlighted by the NDIA’s Supplementary Submissions, the Full Court of the Federal Court of Australia in National Disability Insurance Agency v Foster (Foster),[57] decided that it was an error to apply the NDIA’s guidelines in a way as to equate a person’s inability to undertake one task forming part of “self-care” (that is, in that case, toileting) and to deem this to be the relevant activity for which functional capacity was required to be assessed.[58] The Full Court in Foster observed at [64] that (emphasis added):
In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
[57] [2023] FCAFC 11.
[58] Foster, at [65].
The judicial authority in Foster calls for the Tribunal to make an assessment of the person’s capacity to undertake one of the Prescribed Activities as a whole.
Rule 5.8 of the Access Rules elaborates upon when an impairment is taken to have resulted in a “substantially reduced functional capacity” to undertake any one or more of the Prescribed Activities. This rule provides as follows:
5.8An 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.
[Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.]
As highlighted by the NDIA’s Supplementary Submissions, the Full Court of the Federal Court of Australia in Foster addressed the question of what is meant by “effectively and completely” as appearing in Rule 5.8(a) of the Access Rules. Of note, Justice Derrington observed as follows:
[83] In the overall legislative scheme, the adverb “completely” appears to be redundant, and in any event, unachievable. If “completely” is to be given its ordinary meaning, what is being asked of the rule is an assessment of whether a person’s impairment results in substantially reduced functional capacity to participate “wholly” or “perfectly” in the activities of communication, social interaction, learning, mobility, self-care and self-management – an impossible bar for almost everyone.
…
[88] Within this statutory context, and having regard to the purpose of s 24 as described in the revised Explanatory Memorandum, a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.
As cautioned by her Honour Chief Justice Mortimer in Mulligan, the Tribunal should not confine its consideration of whether a person has met the disability requirement under s 24(1)(c) of the NDIS Act, by considering their circumstances only through the prism of Rule 5.8 of the Access Rules.[59] Instead, her Honour made clear that the statutory task remained to consider whether a person’s functional capacity is substantially reduced in any of the six Prescribed Activities.
[59] Mulligan, at [77].
The Tribunal has considered the following evidence in regard to the impacts of XDWZ’s Permanent Impairments, including:
(a)the direct evidence of XDWZ at the hearing about the extent of her functional capacity in relation to the Prescribed Activities. Sometime before the hearing, XDWZ was assisted by Victorian Legal Aid to prepare a Statement of Lived Experience lodged with the Tribunal on 7 November 2022 (SLE).[60] The SLE is undated and unsigned. At the hearing, XDWZ adopted the SLE as being true and correct;
(b)Mr Y’s Statement;
(c)the observations by Ms P, an occupational therapist who undertook an independent functional capacity assessment of XDWZ on 4 February 2023 at XDWZ’s home; and
(d)the evidence of Dr LS, Dr L and Dr Z.
[60] Exhibit A4, HTB pp. 12-16.
This evidence will be referred to in detail as the Tribunal considers whether one or more of the impairments resulted in a substantially reduced functional capacity in one or more of the following six Prescribed Activities referred to in s 24(1)(c) of the NDIS Act.
Self-care

The Prescribed Activity of “Self-care” is not defined in the NDIS Act or the Access Rules. The Access Guidelines provide that “Self-care” means “personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet”.[61]
[61] Access Guidelines, p. 9.
The NDIA contends that self-care does not include the activities required for XDWZ to maintain her home and her garden. The Tribunal accepts this contention and considers that this falls outside of the scope of self-care, and that the activity of “self-care” should pertain to activities involving a person’s own personal care, rather than activities required to maintain a household, albeit in which the person is living. However, the Tribunal considers that household and garden management of a person’s household would, instead, form part of the activities of “self-management”, being another one of the six Prescribed Activities under s 24(1)(c) of the NDIS Act.
In the 2017 SEF, Dr Z stated that XDWZ had a substantially reduced functional capacity in undertaking the activity of self-care in that XDWZ needed assistance from other persons in the areas of showering/bathing and eating/drinking.[62] He does not tick the box indicating she needed care with toileting, dressing or overnight care (e.g., turning). Dr Z states that XDWZ needed help with showering and bathing for the following reason: “to be safe”. He stated that “on bad days, XDWZ forgets to eat and drink to stay healthy and hydrated, and that her family has to assist with prompting and providing assistance etc”.
[62] T-documents, T4, p. 24.
In XDWZ’s SLE, she described the functional impacts of her Permanent Impairments in regard to self-care, as follows:[63]
16. I have always been someone who takes pride in my appearance. Before my disability, I would shower daily and regularly get my hair done.
17. Now, the fatigue, unsteadiness and dizziness associated with my condition means that I am unable to complete tasks such as showering, bathing, changing clothes, brushing my teeth, or combing my hair. Currently, I am only able to wash my hair every 8-10 days. I have tried to wash my hair more regularly by doing it in the sink, however the weight of my wet hair pulling on the side of my head and neck in that position is excruciating.
18. I would like to be as independent as possible. However, I am only able to do self-care on my ‘good days’ which are few and far between. When I am showering, I am very anxious about having a fall or blacking out from the pain.
19. I am very unsteady when showering, partly because the shower is over the bath. I need to lean against the wall or kneel down to stay balanced. I am unable to shut my eyes when washing my hair or I will ‘get the spins’ and drop to the ground.
20. I can only do self-care when someone is home, so that if I fall, there will be someone there to help. I always keep the bathroom door open when showering and announce what I am doing before I do it so that my children will hear me if I cry out needing their help.
21. The nerve pain in my head makes my scalp so tender that brushing my hair makes me cry in agony. I cannot tie my hair up in a ponytail but am able to put it in plaits.
[63] Exhibit A4, HTB pp. 263-272.
At the hearing, XDWZ gave a further reason why she does not want to take showers by herself. XDWZ said that she would always shower with the bathroom door open as she is fearful of being in the house while naked when she is alone. XDWZ indicated that this fear is connected to the domestic abuse she says she has suffered. XDWZ said she will not shower when her children are not at home. The Tribunal finds that the primary reasons given for her stated inability of not being able to shower independently was based on a psychological fear that someone might harm her if she is home alone and naked, and also because she is fearful of falling due to instability when she has symptoms relating to her occipital neuralgia.
The Tribunal asked XDWZ whether Dr LS had assisted her to develop strategies in an attempt to tackle those fears, or whether Dr LS had given her some strategies to build her capacity to undertake showers independently. XDWZ said that this had not been necessary because, instead, she will only ever shower when the children are at home.
Ms P undertook a functional capacity assessment of XDWZ, as requested by the NDIA and consented to by XDWZ. Regarding self-care activities, Ms P concluded as follows in her expert report:[64]
[XDWZ]'s functional capacity and level of independence in aspects of the self-care domain is currently affected by her right occipital neuralgia condition. However, with the provision of commonly used assistive technology and the implementation of basic home modifications, as outlined within this report, it is anticipated that she will regain independence in the areas of personal care and domestic chores, but not in the areas of home/yard maintenance or transportation. Aspects of [XDWZ]'s self-care; namely transportation, is also currently impacted upon by her psychiatric condition. Therefore, [XDWZ] will require some form of support with her home/yard maintenance and transportation; with this likely to continue into the foreseeable future.
[64] Exhibit R3, HTB p. 44.

As mentioned above, the Tribunal will defer consideration of the degree of any reduction in XDWZ’s capacity to undertake household and garden maintenance as part of considering the activity of “self-management”. The Tribunal will consider the degree of any reduction in XDWZ’s capacity to transport herself within the community as part of the activities of “social interaction” and “mobility”.
Returning to the activity of “self-care”, the Tribunal acknowledges that XDWZ’s capacity for the activity of self-care has been reduced as a result of her Permanent Impairments. She is required to modify the manner in which she showers, ensuring that she only does so when her teenage children are at home and by leaving the door to the bathroom open. However, provided she does so, XDWZ is able to shower independently and does not require her children to physically assist her while she is showering. XDWZ also modifies the way she showers by holding onto the bathroom wall or sitting in the bath (XDWZ only has a shower bath in her home). She said she had fallen down in the shower a few times. When asked for more detail about how she fell, XDWZ said that she did not fall “as in “plonk”” but that she would slide down the shower screen. She said that if she dropped the soap, she would call for help and her daughter would come into the bathroom. XDWZ said that sometimes she would put a child’s footstool in the shower. When asked why she did not use a shower stool, XDWZ said she would not know where to get one and that it would not fit. Then, she said she would not be able to afford the $95 for a shower stool as had been recommended by Ms P.
The Tribunal notes that XDWZ’s teenage children are only absent from her home two days per fortnight, when they are cared for by their father.
Mr Y’s evidence in his witness statement (Mr Y’s Statement) is that XDWZ is able to prepare dinner for herself and the children, being something, he states, that she likes to do. At the hearing, XDWZ confirmed that she prepares dinner for her children. She said that she will only cook when her children are at home and that she needs to rest during the day due to fatigue, stress and further reasons. She said that when she cooks with the children, they will sit at the table or her son will be on the computer. She said they will cook with her when she forces to them to, but they did not help much because they are “stubborn and like to be independent”. XDWZ gave evidence that on good days, she can prepare a meal. The Tribunal notes in Mr Y’s Statement that he states that “occasionally” he was required to prepare the dinner. At the hearing, XDWZ said that she will cook dinner about four nights per week. XDWZ’s evidence is that she modifies the manner in which the dinners are prepared for the family, in that she may prepare meals in bulk and freeze them to be reheated at a later time. The Tribunal considers that this is an approach that may be used by other families for time efficiency and home economy, even if the person responsible for cooking the meals is not living with a disability. Mr Y stated in his witness statement that XDWZ was able to get herself breakfast and lunch. At the hearing, XDWZ said she did not eat breakfast in the mornings, because she feels nauseous. She indicated she would have something simple for lunch.
In Ms P’s OT report dated 14 July 2022 (OT Report), Ms P reports as follows:[65]
8.4.65 Meal Preparation:
8.4.66 [XDWZ] noted that when she is experiencing heightened symptoms she struggles to manage to prepare meals because she does not feel safe standing up to prepare and cook food due to experiencing dizziness and imbalance, as well as severe pain which results in her feeling the most comfortable lying down.
8.4.67 [XDWZ] also reported that bending down to low levels to access food from the fridge or low pantry shelf, or to access the oven or dishwasher causes her heightened dizziness, nausea and pain.
8.4.68 [XDWZ] reported that due to her ongoing symptoms she has adapted the way she prepares meals by breaking tasks up over the day; as well as taking longer to complete tasks.
8.4.69 [XDWZ] confirmed that when she is having a “bad day” she struggles to prepare the evening meal and is reliant on heating something up from the freezer and/or gaining assistance from her children.
[65] Exhibit R3, HTB p. 39.
XDWZ is able to clean her teeth but at the hearing, she said if she has a “medium or bad day, I won’t do these things”. XDWZ gave evidence at the hearing that she is able to dress herself independently, but that it will take her longer to do so. She said she will usually sit down while she is dressing and that she has slip-on shoes. She said she wears “easy going” clothes and it will take her 10 to 15 minutes to put on a dress, top and bra.
Ms P concluded in her OT Report that XDWZ’s Permanent Impairments resulting from her condition of PTSD “at times limit her motivation and energy levels to complete personal care tasks; however, in my opinion, do not sufficiently impact on her ability to be independent with these tasks; when her psychiatric condition is analysed separately, and on its own from any other medical condition”.[66]
[66] Exhibit R3, HTB p. 101.
Ms P reached the following conclusions in relation to XDWZ’s Permanent Impairments resulting from the condition of occipital neuralgia in respect of her capacity to undertake personal care tasks:[67]
8.4.126[XDWZ] is generally independent with her personal care routine, however, at times experiences instability when showering, transferring in and out of the shower and when dressing herself.
8.4.127 She has consequently adopted some compensatory methods of completing these tasks including reportedly only showering when someone else is present at home and sitting to dress herself. Further, she takes longer than pre-injury to complete her personal care routine.
8.4.128 However, in my opinion, with the provision of a range of suitable commonly used assistive technology including a non-slip mat, shower chair, long handled toe washer/dryer, long handled shoe horn, sock donner, elastic shoe laces and a pick-up stick; as well as basic home modifications including a grab rail to be installed in the shower recess, she would become fully capable of completing these personal care tasks without a need for physical assistance and/or supervision from another.
[67] Exhibit R3, HTB p. 84.
Based on the evidence referred to in the three paragraphs above and bearing in mind the approach set out in Foster, the Tribunal does not consider that any of the deeming provisions in Rule 5.8 apply in respect of the activity of self-care. Specifically, the Tribunal is not satisfied that:
(a)XDWZ is unable to participate effectively or completely in the activity of self-care, or to perform tasks or actions required to undertake or participate effectively or completely in the activity of self-care, without assistive technology, equipment (other than commonly used items) or home modifications; or
(b)XDWZ usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity of self-care or to perform tasks or actions required to undertake or participate in the activity of self-care; or
(c)XDWZ is unable to participate in the activity of self-care or to perform tasks or actions required to undertake or participate in the activity of self-care, even with assistive technology, equipment, home modifications or assistance from another person.
The Tribunal finds that XDWZ’s Permanent Impairments have resulted in a significantly reduced functional capacity by reason of her needing to modify the manner in which she undertakes certain activities of self-care, as described in the above paragraph, including that for some tasks and for some of the time she may need to pace herself, use some assistive equipment, and be selective about the times that she undertakes certain activities or how she will physically approach such activities. However, the Tribunal is not satisfied overall that the reduction in her functional capacity to undertake activities of self-care has reached the required threshold of being substantial.
The Tribunal finds that XDWZ’s Permanent Impairments have not resulted in a substantially reduced functional capacity for XDWZ to undertake the activity of self-care.
Communication
XDWZ gave evidence, which the Tribunal accepts, that when she has a headache from the occipital neuralgia, she will become light and noise sensitive, and will need to lay down on her bed in a quiet and darkened room until the headache or pain subsides. The Tribunal infers that XDWZ finds it difficult to communicate with others at times when she is experiencing pain from the occipital neuralgia or symptoms arising from her PTSD and is satisfied that during those times, XDWZ’s ability to communicate is either partially or wholly restricted.
In the 2017 SEF, Dr Z stated that XDWZ had a substantially reduced functional capacity in undertaking the activity of communication, in that XDWZ requires assistance from other persons, that is, her family, as she “finds it difficult to comprehend spoken words and instructions on her bad days”.[68] Dr Z does not make any comment on the form as to XDWZ’s capacity to communicate on her good days.
[68] T-documents, T4/22.
In the SLE, XDWZ does not describe having difficulty with communication per se. Instead, XDWZ refers to a number of matters which affect her social interaction, which the Tribunal will address in the following section. Ms P, in her OT Report, concludes that XDWZ’s functional capacity and level of independence in the communication domain is not currently impacted upon by the conditions causing the Permanent Impairments.[69]
[69] Exhibit R3, HTB p. 44.
XDWZ was unrepresented in this matter. She attended three separate hearing days in person at the Tribunal’s premises, on 1 and 2 May 2023, and by telephone on 12 May 2023. At those hearings, XDWZ said that she was required to take additional doses of Valium in order to assist with her symptoms. The Tribunal observed XDWZ to be able to communicate well, both with the Tribunal and when answering questions asked by Mr Kenneally. As mentioned above, she demonstrated that she was a capable self-advocate. When Dr Z was called to give evidence, she was observed to ask some questions to Dr Z which he answered and which were relevant in this proceeding. The Tribunal’s observation of XDWZ on these hearing days was that XDWZ’s ability to communicate is not impaired. Instead, XDWZ was able to freely and ably converse, ask questions and answer questions, maintain her concentration throughout. She was personable and pleasant when communicating with the Tribunal.
XDWZ gave evidence about a time when her teenage son had talked to her for “four hours straight” about a particular topic and she would listen. XDWZ gave evidence that she has a mobile telephone and that she has both an Instagram and Facebook profile. She said she will have difficultly using her telephone on bad days because she is sensitive to the light on the screen. She said she receives emails on her telephone. XDWZ said that she is slow to respond to emails and will ask her teenage daughter to assist her by looking at the emails to tell XDWZ what is included in them, thereby allowing XDWZ to prioritise certain emails to which she will respond. XDWZ gave the impression that she does not regularly initiate an exchange of text messages with her friends but she will respond to a text message, if one of her friends sends her a text. XDWZ gave evidence that she only has a few friends whom she has known for a long time.
Based on the evidence referred to in paragraphs [108] to [113] and bearing in mind the approach set out in Foster, the Tribunal does not consider that any of the deeming provisions in Rule 5.8 apply in respect of the activity of communication. Specifically, the Tribunal is not satisfied that:
(a)XDWZ is unable to participate effectively or completely in the activity of communication, or to perform tasks or actions required to undertake or participate effectively or completely in the activity of communication, without assistive technology, equipment (other than commonly used items) or home modifications; or
(b)XDWZ usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity of communication or to perform tasks or actions required to undertake or participate in the activity of communication; or
(c)XDWZ is unable to participate in the activity of communication or to perform tasks or actions required to undertake or participate in the activity of communication, even with assistive technology, equipment, home modifications or assistance from another person.
Taking the matters referred to in paragraphs [108] to [113] into account, on balance, the Tribunal agrees with Ms P that XDWZ does not have a reduced functional capacity to undertake activities of communication, and certainly does not consider that a few of the minor difficulties she experiences from time to time constitute a substantially reduced functional capacity in the activity of communication.
Accordingly, while the Tribunal accepts there may be some impairment to XDWZ’s ability to undertake the activity of communication, especially when she is having a bad day, taken as a whole, the Tribunal finds that XDWZ’s Permanent Impairments have not resulted in a substantially reduced functional capacity for XDWZ to undertake the activity of communication.
Social Interaction
In the 2017 SEF, Dr Z stated that XDWZ had a substantially reduced functional incapacity in undertaking the activity of “social interaction”, in that XDWZ requires assistance from other persons.[70] Dr Z stated that due to XDWZ’s disabling condition, she has restricted herself socially and limited her outings. He stated that XDWZ avoids taking the children to activities on her “bad days”, as the noise affected her pain levels.
[70] T-documents, T4/23.
In the SLE, XDWZ stated as follows in relation to capacity to undertake the activity of social interaction:[71]
28. I used to have an excellent social life. I was always out, meeting up with friends for lunch and organising play dates for the kids. I was always the first one to participate and offer to help at school or with extra-curricular activities. I would regularly have friends and their kids over for baking. I’ve always been a very social person and being around people brings me joy.
29. Now, my disability has affected my confidence and self-esteem, which in turn effects my willingness to interact with the world around me. I don’t leave the house if I’m having a bad day – which is most of the time.
30. My inability to stand or walk for more than 30 minutes means that I cannot go out on social interactions. This has resulted in me feeling extremely isolated in my home. This has worsened my anxiety and depression.
31. I am very uncomfortable socialising. My constant pain means I am always distracted during social interactions. The main extent of my social interaction is speaking to my neighbours who check in on me and the kids.
32. I have trouble with bright lights on computers, iPad, TV’s etc which means I cannot even keep in contact with family and friends through technology. Because of this, I feel isolated in my home most of the time.
[71] Exhibit A4, HTB, p. 14-15.
The statement by XDWZ in paragraph [32] of the SLE (reproduced in the paragraph above), is inconsistent with XDWZ’s evidence at the hearing about her interactions with her family members and with other people. By her own evidence, XDWZ keeps in contact with some friends, albeit only a few. One of them is an old school friend with whom she has maintained a friendship since her school days. XDWZ said she visited one of those friends at her home during the recent school holidays. This demonstrates that XDWZ is capable of maintaining positive friendships as a form of “social interaction”. At the hearing, XDWZ said she had not attended many social events in the last couple of years and that she needed to have someone to drive her and to accompany her at such events. She said that she experienced a lot of anxiety when leaving the home. She said this will cause her to become “hyped or worked up” and she will decide not to go.
The clinical notes of Dr LS confirm that XDWZ travelled to Tasmania with Mr Y in about February/March 2017.[72] The clinical notes of Dr LS refer to XDWZ and her children having made a trip to Queensland. XDWZ confirmed at the hearing she had visited her sister in Queensland in 2019 for her birthday. At the hearing, XDWZ told the Tribunal that this was the first trip she had been on for a long time and that she had flown to the Gold Coast and was accompanied by her children. XDWZ also drove to Sydney to attend the wedding of the daughter of one her longstanding friends referred to in the paragraph above.[73] When asked about this at the hearing, XDWZ said that she spent a long time preparing to take this trip (and the trip to the Gold Coast). She said she did not speak to other people at the wedding and left early. At the hearing, XDWZ said she attended a wedding in Frankston. She said she sat with people she knew and left the wedding early. She said her friend’s son had escorted her to her car when she left the wedding. XDWZ said she has low self-esteem and if she forgets her words or stumbles, she worries that other people might think she is a “stoner” or “a good time gal”. She said she is only “one-tenth as social” as she was before.
[72] Dr LS’s clinical notes on 7/2/17: “Excited about Tasmania holiday with [Mr Y].” Then, on 8/3/17 “Happy with holiday.”
[73] Dr LS’s clinical notes on 12/3: “went on long drive to Sydney for a wedding on her own”.
At the hearing, XDWZ told the Tribunal she will have a conversation with an extended family member (either of her sisters) about once a week. She said she receives text messages from her mother, which her youngest daughter will read to her. XDWZ said her friends will “randomly send her text messages” and that they will sometimes catch up during the school holidays. She said one her friends had dropped in to see her that week, and that she saw her other friend once every two or three months. She said she had only seen her friend from Sydney three or four times in the last 17 years. The Tribunal finds that XDWZ maintains social contact, to varying degrees, with her two sisters, mother, and several friends. XDWZ gave evidence that she will interact with social media a few times a week. She said she does not “sit there and scroll through social media” but will respond to two or three messages, either via Messenger or via text message. She said there were some days when she does not answer her messages and that there is usually a delay to her responding to them. XDWZ said the backlighting on screens was uncomfortable and she will use a screen for a maximum of 10 minutes at a time. She said her eyes will become blurry and she will become overloaded. She said she checks her emails once a week. She said she does not use her mobile phone but will use a computer that the children use. She said on a good day, she is able to use the “family iPad” for about 15 to 20 minutes and her mobile phone for about 10 minutes.
At the hearing, Dr LS told the Tribunal that the trips referred to above were a big thing for XDWZ and Dr LS would work with XDWZ for a significant period prior to prepare her for those road trips. XDWZ said, at the hearing, that if she experienced symptoms while making a long road trip, she would pull over to the side of the road, have a rest and wait for the symptoms to subside.
In Mr Y’s Statement, he stated (as of April 2021) that he would take XDWZ to her neurologist for her regular Nerve Block Injections that she received in the base of her skull.[74] He stated that she would be incapacitated for “sometimes 3 days and up to a week” and he would take over the responsibilities of running the house. He said their lives were severely affected due to XDWZ’s condition and they found it hard to do “simple things” like shopping, as the bright lights would set XDWZ’s pain “rocketing off”. He said that public functions and events would overwhelm XDWZ because people were not understanding of her situation, and she found it hard to navigate and felt unstable, requiring Mr Y to hold her up. He said they were regularly required to cancel their plans because of XDWZ’s condition.
[74] T-documents, T11/40.

Mr Y stated that XDWZ is unable to get through most days without feeling nauseous, anxious and in pain with headaches. He said he had found her collapsed on the floor due to her pain, on several occasions, and he said she also suffered “depression, mood swings and lack of sleep due to the pain caused by her injury”.[89]
[89] T-documents, T11/39.
The Tribunal notes that XDWZ is able to own a car and to maintain a driver’s licence. On most days, she is able to travel by driving herself in her car, albeit mostly short distances. On bad days, the Tribunal accepts she is unable to drive safely, or that if she does, her driving distance would be limited. She is also required to modify her driving, by pulling to the side of the road at times, until she feels better. With some planning and preparation, XDWZ has been able to undertake a lengthy road trip to and from Sydney, being about 800 kilometres one way from her home. The Tribunal acknowledges that she has been required to pace herself when making this trip. Nevertheless, XDWZ completed this road trip independently. She also drove independently to and from her home to the Tribunal on 1 and 2 May 2023, albeit by pacing herself and again with a lot of preparation before doing so.
At the hearing, Dr LS told the Tribunal that XDWZ struggled to leave the home because she “gets nervous” and is “worried about getting knocked”. She said that driving was also “very stressful” for XDWZ and that she would drive to Dr LS’s clinic mid-morning when there was less traffic. Dr LS said, at the hearing, that XDWZ had told her she experiences panic attacks about once a week and if she feels like a panic attack is coming on, she will pull the car over. Dr LS said that when XDWZ drove to her friend’s wedding interstate, XDWZ had broken up the trip.
The Tribunal accepts that, presently, travelling by the use of public transport, does not seem to be an option for XDWZ due to her anxiety and fear (rational or not) that she will come to some harm if she is alone in the community, and also due to the physical affect it may have on her due to her condition of occipital neuralgia. This presents as a limitation upon her ability to move about in the community using this particular mode of transport. However, XDWZ may drive herself as an alternative means of transport.
The Tribunal finds that XDWZ’s mobility is sometimes limited because XDWZ may be experiencing symptoms such as dizziness, pain, and fatigue, as a consequence of her occipital neuralgia. The Tribunal acknowledges a single incident referred to above of XDWZ collapsing against the shower screen, but beyond this there was no evidence of a history of falls where XDWZ has seriously injured herself. The evidence revealed that XDWZ will lower herself onto the ground if she is feeling dizzy or unstable, so that she does not fall. Mr Kenneally asked XDWZ at the hearing, what she meant when she used the word “fall”, and she clarified that what she meant was “stumble”. XDWZ said she would misjudge things. To stumble, is not to fall.
At the hearing, XDWZ said that on a good day, she can walk for 30 minutes and that, on a bad day, she will stay in the house with the blinds closed. She said on a bad day she may experience jackhammering in her head and it feels like her eyeballs are exploding. She said, “the smells get me”. She said she does not leave her bedroom. XDWZ said that she was only getting the bad episodes two or three times per month because of the Nerve Block Injections. She described one episode where she had to crawl home. When asked whether she would black out, XDWZ responded “[n]o”. XDWZ said she was in a “huge fog of pain” and that she lost track of where she was. She was asked about whether she could safely get herself to the ground, to which she explained that she always made sure that she had something to hang onto.
The Tribunal accepts that the condition of occipital neuralgia causes XDWZ to be wary when she is mobilising, and that it has also given rise to a high degree of anxiety so that even if XDWZ does not have symptoms, she anticipates that she might have a sudden onset of symptoms. XDWZ deals with this anxiety or fear by mobilising in a way that she feels supported by items around her, including by using the furniture or walls in her house to hang onto to keep her stable (which she said an OT has described as “furniture walking”). At the hearing, XDWZ gave evidence that she has a stool that she will sit on when she is cooking. She says she had a laundry trolley and that her children usually carry out her laundry for her. She says she will hang out the laundry, as she considers it to be a good exercise for her to do.
At the hearing, Dr Z said that sometimes XDWZ has attended his surgery using a walking stick, and that other times she would not. This is consistent with XDWZ’s evidence that sometimes she needed to use a walking stick and at other times, she does not. The Tribunal noted above Dr Z’s observations about XDWZ moving slowly when she is having a bad day.
Dr LS told the Tribunal at the hearing, that XDWZ would “mostly” attend her appointments with Dr LS with a walking stick. XDWZ said she would use a walking stick when going out into the community as she is scared that someone might knock her over. XDWZ recounted that when Mr Y was her partner, he would link arms with her and this would make her feel stable and safe. She said he used to go walking with her. She said Mr Y would “try” to take her for a drive, to get her out of the house.
Based on the evidence referred to in paragraphs [141] to [154] and bearing in mind the approach set out in Foster, the Tribunal does not consider that any of the deeming provisions in Rule 5.8 apply in respect of the activity of mobility. Specifically, the Tribunal is not satisfied that:
(a)XDWZ is unable to participate effectively or completely in the activity of mobility, or to perform tasks or actions required to undertake or participate effectively or completely in the activity of mobility, without assistive technology, equipment (other than commonly used items) or home modifications; or
(b)XDWZ usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity of mobility or to perform tasks or actions required to undertake or participate in the activity of mobility; or
(c)XDWZ is unable to participate in the activity of mobility or to perform tasks or actions required to undertake or participate in the activity of mobility, even with assistive technology, equipment, home modifications or assistance from another person.
The Tribunal accepts that XDWZ’s Permanent Impairments have resulted in a reduced functional capacity in the activity of “mobility”. Upon consideration of the evidence referred to above when taken as a whole, the Tribunal is not satisfied that the reduction in such capacity reached the requisite threshold of being substantial.
Self-management
In the 2017 SEF, Dr Z stated that XDWZ has a substantially reduced functional incapacity in undertaking the activity of self-management, in that she requires assistance from other persons.[90] Dr Z stated that XDWZ will break down or split up her jobs at home, based on how she feels on the day. Dr Z states that XDWZ “writes down finances and manages them on her good days”.
[90] T-documents, T4/24.
The Tribunal regards the activity of “self-management” in these circumstances to also encompass not only the personal management of XDWZ, but also the management of her two youngest children at times when they are in her care and the maintenance of her home and yard.
In the SLE, XDWZ describes the impact of her Permanent Impairments upon her capacity to undertake the activity of self-management as including the following:[91]
33.Prior to my disabilities, I was able to get a million and one things done at once. The other mums would be in awe of how much I had on my plate but how I made it all look so easy.
34. Now, I experience significant difficulties organising my life. I am unable to concentrate, meet deadlines or attend important appointments because of my fatigue and pain. This also has an impact on my ability to organise things that relate to my children.
[91] Exhibit A4, HTB, p. 15.
In Dr LS’s December 2021 Report, she stated that XDWZ’s psychological injuries impair her ability to manage home cleaning independently.[92]
[92] Exhibit A2, HTB, p. 6.
In the SLE, XDWZ addresses her ability to attend to household responsibilities, and shopping for groceries, as follows:[93]
Household responsibilities:
22. About six months prior to the incident which caused my disability, I painted the whole exterior of my house, built large rock retaining walls and built the garage and carport. I would get my household chores done and then do extra projects on the side.
23. Now, the bed smells because I am unable to change it due to my exhaustion. I feel unhygienic laying there, but I do not have the energy to change it as I need to allocate a full day to stripping and remaking the bed. My sense of smell is heightened as a side effect of my conditions. Sometime different smells cause me to dry retch.
24. I need to budget my energy throughout the week in order to get basic chores done. I have to do each task on a separate day. I cannot wash the laundry, hang it out, bring it in and fold it up on one day – this is far too much.
25. My neighbour kindly mows the lawn as otherwise this does not get done at all.
26. Grocery shopping is a totally overwhelming experience as my sensitivity to noise is extreme. I only go shopping in person once a month because the noise in the shops causes headaches that are so intense, I feel nauseous. I do most of the shopping online, however this is often unsuccessful, as the food I require for my allergies and intolerances (such as celiac disease) is sold out by the time I receive my order.
27. Most of the time, I lie on the floor mid-way through doing things like cooking or washing the dishes as I become totally exhausted. I cannot bend down for the dishwasher as the constant movement makes me feel even worse.
[93] Exhibit A4, HTB, p. 14.
At the hearing, XDWZ gave evidence, upon questioning, that she will attend to gardening in her home. When asked how she was able to bend over to pull weeds out without it making her feel dizzy, XDWZ said that she can do so but she will sit on the ground to pull the weeds out.
At the hearing, XDWZ gave evidence that her children will stack the dishwasher. She said her OT had shown her how to vacuum and that sometimes she will sit on the floor when doing so. She said she will only vacuum the floors about once a month and she said her dog will “lick up the mess”. She said she could not do the floors all at once and would need to budget her energy. XDWZ said that she will do the laundry about once a week and her children will help her with the sheets. She said she only washes the sheets about once per month and there is dog hair on them because, she said, the dog sleeps on her bed to protect her.
At the hearing, XDWZ confirmed that she will go shopping in the company of her children. XDWZ said she is unable to do all of her shopping online for groceries because she has celiac disease and needs to buy special items. She also expressed dissatisfaction with online shopping at the hearing, due to the way in which the products were handled.
The Tribunal asked XDWZ as to whether she was able to change her bed sheets using the same strategies that she did when she was weeding, if this was required, that is, by sitting on the floor and changing the bed sheets while she is sitting. XDWZ said she supposed she could do that but had not thought about doing it this way.
The Tribunal is doubtful about the accuracy of the statements in the SLE, and XDWZ’s evidence on the whole, about her ability to be able to attend to and manage household responsibilities on a day-to-day basis. The reason for this doubt arises from the statement by Ms P, in her OT Report, that on the day of the assessment, that XDWZ’s home was observed to be “very neat, clean and tidy. Additionally, her large yard was also observed to be well kept”.[94] XDWZ did not dispute this and referred to her first husband requiring her to clean repetitively. Ms P concluded in her OT Report that XDWZ’s symptoms relating to her psychiatric condition, at times, limited XDWZ’s motivation and energy levels to complete domestic and yard tasks; however, Ms P opined that they do not sufficiently impact on XDWZ’s ability to be independent with those tasks.[95]
[94] Exhibit R2, HTB, p. 98.
[95] Exhibit R3, HTB. p. 101.
In Dr R’s Report, Dr R opined that XDWZ would “benefit from some assistance in household maintenance and garden maintenance” and that she considered that in regard to self-management that “[t]his is not impaired.”[96]
[96] Exhibit R2, HTB, pp. 26-39.
The Tribunal accepts that XDWZ’s Permanent Impairments would restrict the manner in which she is able to attend to and carry out household and yard maintenance. However, on balance, the evidence reveals that XDWZ’s household is being adequately maintained, and is neat, clean, and tidy. XDWZ carries out gardening independently, albeit by modifying the manner in which she approaches some tasks or by pacing herself.
At the hearing, XDWZ gave evidence to the effect that she presently manages her finances. In fact, she gave the Tribunal the impression of being protective of doing so, following recent experiences with Mr Y. There was no evidence before the Tribunal that bills were not getting paid, or appropriate budgeting was not taking place. To the contrary, XDWZ gave evidence to the effect that she did not have any credit card debt, debt relating to utility bills or any other debts (except, of course, her mortgage). She said she maintains a running tab of expenditure and plans for when bills are due to be paid. Those matters would suggest that she is appropriately managing her finances independently. While she might ask her daughter to read certain emails to her on some days when she is experiencing light sensitivity, on her good days, averaging about 15 to 20 per month (based on XDWZ’s evidence that she has on average 10 to 15 bad days per month), XDWZ may attend to her emails independently and pay any bills or address any other financial matters as required from time to time. The Tribunal finds that there is no reduced capacity in regard to XDWZ managing her finances. Instead, the evidence reveals that XDWZ is managing her finances prudently and effectively.
Dr LS was asked at the hearing whether XDWZ had cancelled her appointments with Dr LS often, to which Dr LS replied “[n]o”, stating XDWZ was “very reliable”. The Tribunal regards this as compelling evidence that XDWZ is able to manage her appointments.
Based on the evidence referred to in paragraphs [157] to [170] and bearing in mind the approach set out in Foster, the Tribunal does not consider that any of the deeming provisions in Rule 5.8 apply in respect of the activity of self-management. Specifically, the Tribunal is not satisfied that:
(a)XDWZ is unable to participate effectively or completely in the activity of self-management, or to perform tasks or actions required to undertake or participate effectively or completely in the activity of self-management, without assistive technology, equipment (other than commonly used items) or home modifications; or
(b)XDWZ usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity of self-management or to perform tasks or actions required to undertake or participate in the activity of self-management; or
(c)XDWZ is unable to participate in the activity of self-management or to perform tasks or actions required to undertake or participate in the activity of self-management, even with assistive technology, equipment, home modifications or assistance from another person.
The Tribunal acknowledges that the XDWZ’s Permanent Impairments have resulted in a reduction in her capacity to manage the maintenance of her household and yard, being one aspect of self-management. However, the Tribunal finds that XDWZ has no reduction in capacity to manage her finances or her attendance at appointments as and when required, being other aspects of self-management. She has been able to maintain her role as primary carer for her two children who have additional needs arising from their own disabilities. Based on the matters referred to in paragraphs [157] to [171] above, taken as a whole, the Tribunal concludes that XWDZ’s Permanent Impairments have not resulted in her having a substantially reduced functional capacity in the activity of self-management.
Conclusion regarding s 24
The Tribunal has found that XDWZ’s Permanent Impairments have not resulted in a substantially reduced functional capacity in any one or more of the Prescribed Activities. Accordingly, the Tribunal concludes that XDWZ does not meet the mandatory criterion under s 24(1)(c) of the NDIS Act. Given this conclusion, and because the criteria in s 24(1) are cumulative, it is not necessary for the Tribunal to consider whether the further mandatory criteria under ss 24(1)(d) or 24(1)(e) of the NDIS Act are met. However, the Tribunal will now consider whether XDWZ meets the “early intervention requirements” under s 25 of the NDIS Act.
CONSIDERATION OF WHETHER XDWZ MEETS THE “EARLY INTERVENTION REQUIREMENTS”
Section 25 of the NDIS Act provides as follows:
25 Early intervention requirements
(1)       A person meets the early intervention requirements if:
(a)       the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)            is a child who has 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.
(1A)For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)         as part of a universal service obligation; or
(b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

The NDIA provides the following guidance in its Access Guidelines in relation to the “early intervention” requirements:[97]
[97] Access Guidelines, pp. 11 and 12.
Do you need early intervention?
If you don’t meet the disability requirements, you may be eligible for the NDIS under the early intervention requirements. Early intervention is usually early access to support, to help reduce the functional impacts of your impairment.
Early intervention can be for both children and adults. You won’t need these supports for your lifetime, so your treating professional or your early childhood partner will tell us how early intervention support could benefit you or your child.
You will meet the early intervention requirements if you meet all of the following:
• You have an impairment that’s likely to be permanent.
•Early intervention supports will help you, for example if it means you’ll need less disability support in the future and your functional capacity will improve.
• The early intervention you need is most appropriately funded by us.
…
If you meet the early intervention requirements when you join the NDIS, your support needs are more likely to change. We’ll regularly check your eligibility when we reassess your plan, and at other times too.
If you benefit from early intervention supports, you might build your skills and increase your capacity so that you may no longer need NDIS supports.
If you no longer meet the early intervention requirements, we’ll check if you meet the disability requirements. Learn more about leaving the NDIS.
The Tribunal is satisfied that XDWZ meets the criterion under s 25(1)(a) of the NDIS Act, based on its findings as to XDWZ’s various impairments, as set out in paragraphs [44] to [64] of these Reasons for Decision.
At the hearing, Dr R was asked whether she considered there were any early intervention supports likely to reduce XDWZ’s need for future disability-related supports. Dr R said that the intervention would not be “early” because XDWZ had been unwell for many years. Dr R said that XDWZ needed to keep seeing a psychologist and she recommended individual or group therapy for her. However, Dr R said that XDWZ has had supportive therapy, but until she was “in a safe place”, she “cannot do the process, that needs to be done”. When Dr R was asked why she did not consider XDWZ to be in a safe place, she said she was referring to the need for XDWZ to look after her children, in particular, the eldest who had psychiatric issues of her own. Dr R also referred to XDWZ living with her two youngest children who both have ASD. The impression the Tribunal gained from this evidence by Dr R was that while she considered XDWZ required ongoing psychological services, she flagged that there may be a limit as to how effective it would be given her current living circumstances.
The Tribunal notes that in 2017, Dr Z in the 2017 SEF had not recommended any early intervention supports when prompted to do so.
Ms P in her OT Report recommended several assistive technology supports to assist XDWZ and which are likely to increase her independence in doing certain tasks or activities.[98]
[98] Exhibit R3, HTB, pp. 76-79.
Overall, it was difficult for the Tribunal to identify potential early intervention supports. The Tribunal accepts that perhaps early intervention supports for XDWZ might take the form of ongoing psychological therapy and the provision of assistive technology (AT) of the kind recommended in Ms P’s OT Report. The Tribunal has considered other possible supports such as support worker assistance to help her access the community and increase her social participation, and house and yard maintenance; however, the Tribunal considers that those supports are not likely to reduce her future needs for supports in relation to disability.
Psychological therapy as an early intervention support
As for the psychological therapy as a possible early intervention, the Tribunal shares the concerns held by Dr R that the provision of this type of intervention may not be effective until XDWZ’s circumstances change. This finding is consistent with the history of XDWZ having received extensive psychotherapy from Dr LS since 2008 and there did not appear to be a significant reduction in XDWZ’s functional capacity.[99] Dr LS considered that it was possible to build XDWZ’s capacity in relation to social interaction (specifically, dealing with XDWZ’s fears when being in the presence of people she does not know, but Dr LS also made it clear to the Tribunal that in her opinion, she could not cure XDWZ and that, in the past, there had been a minimum to what she was able to achieve. Dr Z’s evidence was that he considered that XDWZ’s level of functional capacity was likely to have worsened since he completed the SEF in 2017. XDWZ also considered that her functionality is worsening over time. This is despite the psychotherapy intervention having been received from Dr LS during recent years.
[99] T-documents, T13.
On balance, the Tribunal is not satisfied that psychological therapy, as an early intervention support, is likely to reduce XDWZ’s future needs for supports in relation to disability. The Tribunal concludes that the mandatory criterion in s 25(1)(b) of the NDIS Act is not met by XDWZ in respect of her Permanent Impairments. Given this conclusion, it is not necessary for the Tribunal to proceed with a consideration of whether XDWZ meets the other mandatory criteria under s 25(1) of the NDIS Act.
Provision of assistive technology as an early intervention support
Based on Ms P’s OT Report and the evidence that Ms P gave at the hearing, which was not challenged by XDWZ (in fact, XDWZ agreed that having the AT recommended by Ms P in her OT Report made available to her would assist her to undertake certain activities of self-care), the Tribunal finds that such intervention is likely to reduce XDWZ’s future needs for supports in relation to disability. The Tribunal concludes that the criterion under s 25(1)(b) of the NDIS Act is met by XDWZ. The Tribunal also concludes that s 25(1)(c) of the NDIS Act is met by XDWZ because the recommended AT is likely to benefit her by mitigating or alleviating the impact of XDWZ’s impairments upon her functional capacity to undertake mobility, self-care, and self-management; and by improving such functional capacity.
The Tribunal must now consider whether the recommended AT as an early intervention support for XDWZ is not most appropriately funded or provided through the NDIS and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered as part of a universal service obligation.
In the NDIA’s SFIC, the NDIA contends that early intervention in the form of a walking frame or walking stick is a support that is more appropriately provided through the health system or a state government program that provides mobility aides. The NDIA referred to the Victorian Aides and Equipment Program Guidelines (September 2020) (VA&EP Guidelines)[100] as an example.[101] The VA&EP Guidelines state that the aim of the Victorian Aides and Equipment Program (VA&EP) is to provide eligible people with subsidised AT to enhance independence in their home, facilitate community participation and support families and carers in their role. XDWZ would appear to be eligible to participate in the VA&EP, provided she is not eligible for the NDIS. The VA&EP provides a subsidy (a level of funding) toward the purchase price of a range of specified AT items. The AT available under this program included specialised bathing and toileting AT as set out on page 13 of the VA&EP Guidelines; wheelchairs and mobility scooters as set out on page 15; walking aids (comprising walking frames or standing frames) as set out on page 16; transfer aids (including a kitchen trolley) on page 17; and home modifications up to a maximum of $4,000 per lifetime.
[100] Victoria State Government, Victorian Aides and Equipment Program Guidelines (Guidelines, September 2020) <victorian-aids-and-equipment-program-operational-guidelines.pdf (health.vic.gov.au)>.
[101] Refer NDIA’s SFIC at paragraph [47].
The Tribunal considers that the AT recommended by Ms P in her OT Report are supports that are more appropriately provided to XDWZ through the VA&EP and not most appropriately funded through the NDIS. For this reason, the Tribunal concludes that, despite the criteria in sub-ss 25(1)(a), (b) and (c) being met in respect of the AT supports recommended by Ms P in her OT Report, the Tribunal must conclude that the early intervention requirements have not been met in respect of the provision of those supports, by operation of s 25(3) of the NDIS Act.
Conclusion regarding s 25
Based on the findings made in paragraphs [174] to [186], the Tribunal concludes that the early intervention requirements under s 25 of the NDIS Act are not met in respect of XDWZ’s disability.
CONCLUSION
In conclusion, the Tribunal is not satisfied that XDWZ meets the access requirements under s 21 of the NDIS Act because she does not meet the disability requirements under s 24, nor the early intervention requirements under s 25 of the NDIS Act.
Accordingly, the Tribunal affirms the decision under review.

190. I certify that the preceding 189 (one-hundred and eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

..................................[sgd]......................................
Associate
Dated: 31 May 2023

Dates of hearing: 1, 2 & 12 May 2023

Advocate for the Applicant: In person

Counsel for the Respondent: Mr Mathew Kenneally

Solicitors for the Respondent: HWL Ebsworth Lawyers

[2023] AATA 1481

31 May 2023

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Dates of hearing:	1, 2 & 12 May 2023
Advocate for the Applicant:	In person
Counsel for the Respondent:	Mr Mathew Kenneally
Solicitors for the Respondent:	HWL Ebsworth Lawyers