ZMFJ and CEO, National Disability Insurance Agency (NDIS) - [2025] ARTA 1361

ZMFJ and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1361 (11 August 2025)
Applicant/s:  ZMFJ
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2023/3564

Tribunal:General Member L Proske
Place:Adelaide
Date:11 August 2025

Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:
1) The statement of participant supports specifies that the reasonable and necessary supports include:
a)Level 2 support coordination – a total of 40 hours per year
b)Occupational therapy – a total of 26 hours per year
c)Dietitian – 12 hours per year

2)    All other supports in the Applicant’s existing statement of participant supports are to be replicated pro-rata from the date on which the supports specified in paragraph [1] are included in the Applicant’s statement of participant supports.
3)    The management of the supports budgets in the Applicant’s plan is to remain the same as the management of the supports budgets in the Applicant’s existing plan.
4)    The date by which the Respondent must reassess the Applicant’s plan is to be 12 months after the date on which the supports in paragraph [1] above are included in the Applicant’s statement of participant supports.

Statement made on 11 August 2025 at 4:39pm
Catchwords
NATIONAL DISABLITY INSURANCE SCHEME – reasonable and necessary supports – capacity building supports – core supports – does not meet disability or early intervention requirements in relation to physical or sensory impairments – value for money – effective and beneficial – decision remitted for reconsideration
Legislation
Administrative Appeals Tribunal Act 1975
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024
Administrative Review Tribunal Act 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024
Cases
Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Public Trustee of South Australia (as litigation representative for Isherwood) v National
Disability Insurance Agency (No 2) [2023] FCA 852
Madeleine v National Disability Insurance Agency [2020] AATA 4025
Rooney and National Disability Insurance Agency [2021] AATA 3523
Secondary Materials
NDIS Guideline – Reasonable and Necessary Supports
NDIS Guideline – Principles we follow to create your plan
NDIS Guideline – Applying to the NDIS
Statement of Reasons
1.The Applicant is a 64-year-old woman who lives in an inner-city suburb of Melbourne. She became a participant of the National Disability Insurance Scheme (NDIS) in 2019 based on her psychosocial impairments arising from anxiety, depression, and obsessive-compulsive disorder (OCD).[1]

BACKGROUND AND JURISDICTION
[1] Respondent’s Statement of Facts, Issues and Contentions 1 May 2025 (Respondent’s SFIC), [1].

On 31 October 2023, the Chief Executive Officer of the Respondent approved a statement of participant supports (SOPS) for inclusion in the Applicant’s plan (original decision).[2] On 9 December 2023 the Applicant requested that the original decision be reviewed, and on 2 February 2023 a reviewer confirmed the original decision (internal review decision).[3]
[2] Exhibit 1 (E1), 22.
[3] E1, 22, 77.
On 16 June 2023, the Applicant made an application to the Administrative Appeals Tribunal (AAT) for review of the internal review decision.[4] Upon written application by the Applicant, the AAT extended the time for making an application for review of the internal review decision to 16 June 2023. The AAT had jurisdiction to review the internal review decision under s 103(1) of the National Disability Insurance Scheme Act 2013 (NDIS Act), in combination with s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act).[5]
[4] E1, 1.
[5] All sections referred to in this Statement of Reasons, including in the footnotes, are sections in the National Disability Insurance Scheme Act 2013 unless otherwise stated.
The Administrative Review Tribunal (ART) was established on 14 October 2024 and replaced the former AAT.[6] The Applicant’s review application was not finalised before the transition to the ART. Proceedings in the AAT that were not finalised before the transition to the ART must be continued and finalised by the ART.[7] In this Statement of Reasons, the ART will hereafter be referred to as ‘the Tribunal’.
[6] Administrative Review Tribunal Act 2024, s 8.
[7] Part 5 to Schedule 16, item 24 of Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
ISSUES ON REVIEW
On review, the Applicant is seeking to have funding for the following supports specified in her SOPS:
a)Support coordination (level 2) – 40 hours per year.
b)Additional support worker assistance– 17 hours per week in total
c)Support worker assistance – 24-hour block to transfer belongings from her home to a storage unit
d)Additional occupational therapy – 56 hours per year in total
e)Speech therapy – 20 hours per year
f)Dietitian – 20 hours per year
g)Physiotherapy – 20 hours per year
h)Counselling – 20 hours per year
i)Assistive technology – hearing aids.[8]
[8] The Applicant confirmed at the hearing on 14 May 2025 the particulars of the support she is requesting on review with respect to physiotherapy and counselling, i.e. 20 hours per year of physiotherapy and 20 hours per year of counselling.
The Respondent’s position is that the Applicant’s plan should be varied to include funding for the following supports over a 12-month period:
a)Support coordination (level 2) – 40 hours per year
b)Support worker assistance – 13 hours per week in total
c)Occupational therapy – 26 hours per year in total
d)Dietitian – 12 hours per year.[9]
[9] Respondent’s SFIC, [8]; Respondent’s oral closing submissions.
The issue on review to be determined by the Tribunal is whether the supports listed at paragraph 7(b)-(7)(i) are reasonable and necessary and whether each of the criteria in s 34(1) are met in respect of those supports.[10]
[10] Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852, [29], [33].
LEGISLATION AND POLICY
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Amending Act) commenced on 3 October 2024.[11] The Amending Act made a range of amendments to the NDIS Act. Those amendments included, but were not limited to, the insertion of a new definition of ‘NDIS Support’ at s 10, an amendment to s 33(5) which prescribes what is required when deciding whether to approve a SOPS, amendments to s 34 which sets out criteria which must be satisfied in relation to reasonable and necessary supports, and amendments to ss 43 and 44 regarding plan management. Those provisions, as amended, apply to the Applicant and any approval or variation of her SOPS.[12]
[11] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Amending Act), s 2.
[12] Items 124, 129 and 132 of the Amending Act.
The objects of the NDIS Act, and the principles guiding actions under the NDIS Act, are set out in ss 3 and 4. In giving effect to the objectives of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.[13]
[13] s 3(3)(b).
Chapter 3 of the NDIS Act provides the statutory framework for individual plans under which NDIS supports will be funded for participants.[14] Section 17A prescribes principles to which regard must be had when performing functions and exercising powers under Chapter 3 of the NDIS Act. The preparation, variation, reassessment and replacement of a participant’s plan, and the management of funding for supports under a participant’s plan, should so far as reasonably practicable be guided by principles relating to plans set out in s 31. A participant’s plan must include the participant’s statement of goals and aspirations and SOPS.[15]
[14] s 8.
[15] ss 33(1), 33(2).
In deciding whether to approve a SOPS, the CEO or the Tribunal on review, must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35;
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant; and
(g)have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.[16]
[16] s 33(5).
Section 34(1) provides that:
For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
f)the support is an NDIS support for the participant.
In addition to the matters of which the CEO, or the Tribunal on review, must be satisfied in s 34(1), the Tribunal must also be satisfied that the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered as part of a universal service obligation, or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.[17]
[17] National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1)(Miscellaneous Provisions) Transitional Rules 2024 (Transitional Miscellaneous Rules), s 7.
Relevant to this application, the Minister has made the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Transitional NDIS Supports Rules). These are an important part of the legislative scheme.[18]
[18] McGarrigle v National Disability Insurance Agency [2017] FCA 308, [43].
Guidelines published on the NDIS website contain information about what the Respondent considers when making decisions under the NDIS. These are essentially policy documents. The Guidelines ‘Reasonable and Necessary Supports’ (Supports Guideline) and ‘What principles do we follow to create your plan?’ (Principles Guideline) are relevant to this application. The Tribunal will take these into account unless there are cogent reasons not to.[19]
[19] Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420.
EVIDENCE AND SUBMISSIONS
The parties filed a joint tender bundle which included the T-Documents filed under s 37 of the AAT Act, and additional documents relied on by each of the parties. The joint tender bundle was received into evidence at the commencement of the hearing and marked ‘Exhibit 1’.
The hearing was conducted by Microsoft Teams on 10 April 2025 and 14 May 2025. Only the Applicant gave oral evidence at the hearing.
The Respondent filed a Statement of Facts, Issues and Contentions dated 13 March 2025, and an updated Statement of Facts, Issues and Contentions dated 1 May 2025. The parties also made submissions at the hearing.
The Tribunal has considered the written evidence, oral evidence and submissions referred to in paragraphs [16] to [18].
CONSIDERATION
Section 34(1)(aa) requires that the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see s 24) or the early intervention requirements (see s 25).
The notation at the end of s 34(1) in relation to 34(1)(aa) reads as follows:
For the purposes of paragraph (aa);
a)the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
b)a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
As was noted in paragraph [1], the Applicant was granted access to the NDIS based on her psychosocial impairments arising from anxiety, depression, and OCD.[20] The Applicant contends she has additional impairments arising from fibromyalgia, sleep apnoea, osteoarthritis, essential thrombocythemia, chronic obstructive pulmonary disease (COPD), a learning disorder and bilateral deafness.[21] Several of the supports sought on review relate to needs arising – in whole or in part – from those additional impairments. The Applicant contends she meets the disability requirements in s 24 in relation to those additional impairments.[22] The Respondent contends she does not.[23]
[20] Respondent’s SFIC, [1].
[21] E1, 271.
[22] E1, 271.
[23] Respondent’s SFIC, [40]-[66].
Given the requirement in s 34(1)(aa), and the way this application has been framed, a preliminary issue arising on review is whether – for the purposes of s 34(1)(aa) – the Applicant does meet the disability requirements in s 24 or the early intervention requirements in s 25 in relation to the additional impairments referred to in paragraph [21].[24] The Tribunal will begin by considering this preliminary issue.
Does the Applicant meet the Disability Requirements or Early Intervention Requirements in relation to additional impairments?
[24] Item 125(2)(b) of Sch 1 to the Amending Act provides that amendments made to ss 24 and 25 by the Amending Act apply in relation to any person who is a participant on or after 3 October 2024. The Applicant was a participant on 3 October 2024. It follows that within the context of s 34(1)(aa), ss 24 and 25 as amended by the Amending Act apply.
The disability requirements in s 24 are as follows:
24Disability 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 NDIS supports under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require NDIS supports under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require NDIS supports under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
The early intervention requirements in s 25 are as follows:
25Early 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; and
(d)the CEO is satisfied any early intervention supports that would be likely to benefit the person as mentioned in paragraphs (b) and (c) would be NDIS supports for the person.
(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.
The Minister has issued the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Access Rules). The Operational Guideline ‘Applying to the NDIS’ (Access Guideline) is also relevant.
Fibromyalgia

There are 2 letters dated 2017 from Dr KLM, a consultant rheumatologist, confirming the Applicant has been diagnosed with fibromyalgia, and previously treated with Endep.[25] In a letter dated August 2021, Dr JS, an osteopath, reported that the Applicant had been attending the clinic in the past for assessment and treatment of chronic pain that is predisposed and maintained by her ongoing fibromyalgia which was diagnosed in 2008.[26] Dr JS reported that the Applicant experiences arthralgia and myalgia episodes frequently due to her fibromyalgia.[27]
[25] E1, 67, 68.
[26] E1, 36.
[27] E1, 37.
In letters dated March 2022 and December 2024, the Applicant’s GP Dr BW reported that the Applicant was diagnosed with fibromyalgia in 2008; has been reviewed by a rheumatologist and an osteopath; has been treated with Endep, physiotherapy, counselling and exercise which together comprise a pain management program; and has chronic symptoms despite maximal treatment.[28] Dr BW reported that symptoms of the Applicant’s fibromyalgia include fatigue, myalgias, insomnia, joint stiffness and pain, and brain fog.[29]
[28] E1, 62, 261.
[29] E1, 259.
Documents produced under summons by cohealth evidence the Applicant attended a multidisciplinary pain management program; and has over time engaged with an exercise physiologist and physiotherapist regarding chronic pain which is attributed to fibromyalgia.[30]
[30] E1, 428, 429, 490, 509-515, 516, 519.
The Applicant reported to Ms LT, an occupational therapist, that she experiences pain and fatigue related to fibromyalgia.[31]
[31] E1, 43, 44, 50, 51, 52.
The Respondent accepts the Applicant has a disability attributable to pain, muscle stiffness and fatigue arising from fibromyalgia, and that those impairments are permanent.[32] Based on evidence provided by Dr BW and Dr JS, the Tribunal considers the impairments arising from the Applicant’s fibromyalgia are pain (including myalgia and arthralgia) and fatigue (physical impairments). The only clinical evidence which suggests the Applicant has brain fog arising from fibromyalgia is that provided by Dr BW. The basis on which Dr BW has concluded the Applicant has brain fog, and that that is related to fibromyalgia, is unclear. The Tribunal is therefore not persuaded by Dr BW’s evidence that the Applicant does have brain fog, or that such an impairment arises from fibromyalgia.
[32] Respondent’s SFIC, [50].
Based on the evidence referred to above, the Tribunal is satisfied that the Applicant has a disability attributable to physical impairments arising from fibromyalgia, and that those physical impairments are permanent. It follows that in relation to these physical impairments, the requirements in ss 24(1)(a) and 24(1)(b) are met.
Sleep apnoea
In a letter dated January 2017, Dr KLM reported the Applicant has a diagnosis of sleep apnoea, and poor CPAP compliance.[33] A consult note made by Dr KW, a GP, dated July 2021 notes the Applicant does not tolerate a CPAP machine and was considering an implant for a sleep apnoea research trial.[34] With respect to the implant for a sleep apnoea trial, Dr KW suggested that during the intake process, the Applicant consider risks and whether that was likely to benefit her.[35] In May 2022, Ms LT referred to a previous functional capacity assessment (which does not appear to be in evidence). Ms LT cited from that previous functional capacity assessment report:
‘[The Applicant] reported a diagnosis of sleep apnoea. She advised that she has a CPAP machine, however, does not use this as finds the mask uncomfortable. She reported to have tried to get this mask refitted however, no significant improvement was reported. Additionally, [the Applicant] reported the noise of the CPAP machine disturbs her dog therefore she packed it away.’[36]
[33] E1, 67.
[34] E1, 560.
[35] E1, 560.
[36] E1, 49.
A further consult note made by Dr KW dated April 2024 records the Applicant has sleep apnoea, was not at that time using a mask, and participated in a sleep study appropriately 5 years ago but not recently.[37] In December 2024, Dr BW reported the Applicant was diagnosed with sleep apnoea in 2011. Dr BW recorded the Applicant’s sleep apnoea was severe; she has chronic dry mouth and fatigue; and needs a sleep apnoea machine but cannot afford this herself.[38]
[37] E1, 619.
[38] E1, 259.
The Tribunal accepts the Applicant has been diagnosed with sleep apnoea. Based on Dr BW’s evidence, the Tribunal accepts this can cause fatigue for the Applicant. However, the evidence suggests the Applicant does not use a CPAP machine, and the Tribunal is not persuaded on the evidence before it that the Applicant cannot use a CPAP machine. Nor does the evidence suggest there are no alternative treatments that could be trialled that may remedy any fatigue the Applicant experiences because of sleep apnoea. For these reasons, the Tribunal is not satisfied there are no known, available and appropriate evidence based clinical, medical or other treatments that would be likely to remedy the Applicant’s fatigue arising from that condition.[39] The Tribunal is therefore not satisfied that the Applicant’s fatigue arising from sleep apnoea is, or is likely to be, permanent; and the requirement in s 24(1)(b) is not met.
Osteoarthritis
[39] r 5.4 Access Rules.
In a consult note dated 17 February 2020, Dr BW referred the Applicant for a steroid injection in her right thumb due to osteoarthritis.[40] A report by a radiologist in December 2022 regarding an x-ray of the Applicant’s feet reported mild osteoarthritic degenerative changes within the first toe interphalangeal joints on both sides, and mild osteoarthritis within the bilateral first MTP joints.[41] In a consult note dated May 2023, the Applicant reported right TMJ pain for which Dr BW gave the Applicant a handout for exercises and recommended a new mouth guard.[42] Dr BW gave the Applicant an imaging request for a TMJ joint injection in case her TMJ pain did not get better.[43]
[40] E1, 535.
[41] E1, 670.
[42] E1, 603.
[43] E1, 508.
In December 2024, Dr BW reported the Applicant has osteoarthritis in her jaw, hands and feet on x-ray.[44] Associated with this Dr BW reported the Applicant has chronic joint pain and stiffness, and difficulty with prolonged standing, which impacts her ability to complete certain household tasks.[45]
[44] E1, 259.
[45] E1, 259.
With respect to osteoarthritis, the Applicant gave evidence she uses heat packs, and takes calcium, vitamin D, and pain killers. When asked whether her GP had spoken with her about osteoarthritis and possible treatment options, the Applicant gave evidence ‘a lot of the time the answer I get is, well, you know, you can’t go public because the waiting list is too long, the only option you really have is to go private’. When asked why her GP has suggested she go on the hospital waiting list, the Applicant said she assumed it was to do investigations. The Applicant gave evidence she has not discussed with anyone whether surgery would be an appropriate treatment for her osteoarthritis; she has not been referred to an orthopaedic surgeon in relation not that; and is not aware of any reason that surgery would not be a practical treatment option for her osteoarthritis.
The Tribunal accepts the Applicant has osteoarthritis in her jaw, hands and feet which results in joint pain and stiffness. However, evidence regarding treatment undertaken for her osteoarthritis is sparse; there is no clinical evidence to suggest all treatment options have been exhausted or considered and ruled out; and she has not been referred to an appropriate specialist, such as an orthopaedic surgeon, for assessment and review. In these circumstances, the Tribunal is not persuaded there are no known, available and appropriate evidence based clinical, medical or other treatments that would be likely to remedy the Applicant’s joint pain and stiffness arising from osteoarthritis.[46] The Tribunal is therefore not satisfied those impairments are, or are likely to be, permanent; and the requirement in s 24(1)(b) is not met.
Essential thrombocythemia
[46] r 5.4 Access Rules.
A pathology record in June 2021 suggests the Applicant was at that time being treated with Hydrea for essential thrombocythemia.[47] A consult note made in relation to a counselling session in November 2024 records that during that session it was discussed that the Applicant has blood cancer requiring monitoring every 3 months at Peter MacCallum Cancer Centre, and that she was at that time taking Hydrea (chemotherapy).[48] In December 2024, Dr BW reported the Applicant was diagnosed with essential thrombocythemia in May 2021 which causes hair loss, fatigue, rash.[49]
[47] E1, 657.
[48] E1, 435.
[49] E1, 260.
The Tribunal accepts that the Applicant has been diagnosed with essential thrombocythemia, a rare blood cancer. Based on Dr BW’s evidence, the Tribunal accepts the Applicant has fatigue arising from that. Whilst there is a suggestion in evidence that the Applicant’s essential thrombocythemia has been treated with Hydrea, and may be monitored at the Peter MacCallum Cancer Centre, that is the extent of the evidence regarding how the Applicant’s essential thrombocythemia has been treated or is being managed.
The Respondent submits, and the Tribunal agrees, that the current status of the Applicant’s essential thrombocythemia is unclear on the evidence.[50] In circumstances where it is unclear whether the Applicant’s essential thrombocythemia has been optimally treated, the Tribunal is not persuaded there are no known, available and appropriate evidence based clinical, medical or other treatments that would be likely to remedy the Applicant’s fatigue arising from that condition.[51] The Tribunal is therefore not satisfied that the Applicant’s fatigue arising from essential thrombocythemia is, or is likely to be, permanent; and the requirement in s 24(1)(b) is not met.
COPD
[50] Respondent’s SFIC, [65].
[51] r 5.4 Access Rules.
The Applicant had a CT scan of her chest completed in February 2022 as she was getting short of breath; and a radiologist concluded the Applicant had COPD in the form of centrilobular emphysema.[52] A consult note made by Dr BW in February 2022 recorded that the Applicant had a new diagnosis of COPD; has difficulty breathing; was to start on treatment; and understood the risk of exacerbations.[53] The same note records the Applicant was prescribed Incruse Ellipta.[54]
[52] E1, 660.
[53] E1, 568.
[54] E1, 568.
In September 2022 the Applicant consulted with Dr BW in relation to COPD after having had 2 days of trouble breathing.[55] Dr BW recorded in the associated consult note the Applicant had stopped taking Incruse Ellipta and was to restart that medication.[56] In a consult note dated February 2023, Dr BW reported the Applicant was not really taking Incruse Ellipta, had not taken it in ages, was finding it easier going up stairs, so would leave it for the moment.[57]
[55] E1, 587.
[56] E1, 587.
[57] E1, 600.
A consult note made by Dr BW in July 2024 records that she recommended re-checking lung function tests.[58] Medical records produced under summons by cohealth evidence the Applicant being prescribed Incruse Ellipta on multiple occasions between March 2023 and December 2024.[59] In December 2024, Dr BW reported the Applicant was diagnosed with COPD in February 2022, because of which her exercise tolerance is limited to 200 metres’[60]
[58] E1, 6
[59] E1, 601, 608, 621, 633, 635.
[60] E1, 262.
The Applicant gave oral evidence her COPD has been treated with steroids and puffers; she is not currently taking steroids, but she does use a puffer with a spacer; and does breathing exercises and goes walking. Currently, the Applicant said she has trouble going up hills and becomes breathless on exertion.
The Tribunal accepts that the Applicant has been diagnosed with COPD which is a condition that results in breathing difficulties. It appears the Applicant’s breathing difficulties have been intermittently treated with Incruse Ellipta and puffers. It is however unclear on the evidence how efficacious that treatment has been, whether the Applicant has been compliant with that treatment, or whether the Applicant’s breathing difficulties have been treated or are being managed with anything other than Incruse Ellipta and puffers. It is also unclear whether the Applicant has had a lung function test since it was recommended by Dr Walker in July 2024, and if so, what the outcome of that test was. It does not appear the Applicant’s breathing difficulties have been reviewed by any specialist.
In the circumstances as outlined above, the Tribunal is not persuaded there are no known, available and appropriate evidence based clinical, medical or other treatments that would be likely to remedy the Applicant’s breathing difficulties.[61] Nor is the Tribunal satisfied the Applicant’s breathing difficulties do not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated.[62] It follows that the Tribunal is not satisfied the Applicant’s breathing difficulties are, or are likely to be, permanent; and the requirement in s 24(1)(b) is not met with respect to that impairment.
Learning disorder
[61] r 5.4 Access Rules.
[62] r 5.6 Access Rules.
In December 2024, Dr BW reported the Applicant has a general learning disorder due to childhood abuse and intermittent schooling.[63] In a statement dated January 2025, Ms TF stated the Applicant ‘has some dyslexia’.[64]
[63] E1, 260
[64] E1, 266.
In oral evidence, the Applicant stated that when she was a young child:
‘I went to some place where they looked at your learning disabilities and I believe I got that diagnosis then, but I don’t know what it was because I was so young’.
Later in oral evidence, the Applicant indicated learning is something she finds difficult, but she does not know what she can do about this as she has not had a diagnosis.
It is unclear from Dr BW’s evidence whether this is what was reported to her by the Applicant or Dr BW’s own opinion. If it is the former, the Applicant’s own evidence is that she cannot recall a particular diagnosis. If it is the latter, the nature of the learning disorder and the basis on which it has been diagnosed is unclear. The Tribunal notes Ms TF is a social worker, not a health professional, and in any event her evidence appears to be based on the Applicant’s self-report, which is contrary to the Applicant’s oral evidence that she can’t recall the learning disorder with which she was diagnosed as a child. The Tribunal is not persuaded on the evidence before it that the Applicant does have a learning disorder. It follows that the Tribunal does not accept the Applicant has a disability that is attributable to any impairment arising from a learning disorder.[65]
Bilateral deafness
[65] s 24(1)(a).
In July 2020 the Applicant’s hearing and hearing aids were reviewed by Ms WP.[66] Pure tone audiometry indicated a mild to severe sloping high frequency hearing loss in both ears.[67] It was reported the Applicant relies heavily on hearing aids given the degree of her bilateral hearing loss to hear in general and noisy situations. [68] It was recommended the Applicant get EHA Hearing aid Model Oticon Ruby 1miniRite Rechargeable Binaural which were quoted at $5,073.50.[69] In December 2024, Dr BW reported the Applicant was diagnosed with bilateral deafness in 2011 and wears hearing aids when not at home.[70]
[66] E1, 82.
[67] E1, 82.
[68] E1, 82.
[69] E1, 82.
[70] E1, 261.
The Respondent accepts the Applicant has a disability attributable to a sensory impairment, specifically hearing loss, and that that sensory impairment is permanent.[71] Based on the evidence referred to above, the Tribunal is similarly satisfied of this. It follows that in relation to hearing loss (sensory impairment), the requirements in ss 24(1)(a) and 24(1)(b) are met.
Do the Applicant’s permanent impairments result in substantially reduced functional capacity to undertake one or more of the activities prescribed in s 24(1)(c)?
[71] Respondent’s SFIC, [61].
The Applicant was granted access to the NDIS based on her psychosocial impairments. It is not in contest between the parties, and the Tribunal is similarly satisfied, that the Applicant, at the time of this decision, meets the disability requirements in s 24 in relation to her psychosocial impairments for the purposes of s 34(1)(aa).
The Tribunal is satisfied the Applicant has physical impairments and a sensory impairment that are, or are likely to be, permanent. For those impairments to meet the requirement in s 24(1)(c), the Tribunal must be satisfied those impairments result in substantially reduced functional capacity to undertake 1 or more of the activities prescribed in s 24(1)(c) – either on their own, or in combination with the Applicant’s other permanent impairments.
The Respondent contends:
a)    The Applicant’s psychosocial impairments result in substantially reduced functional capacity to undertake the activity of self-management, but no other activity prescribed in s 24(1)(c).[72]
b)    The Applicant’s physical impairments do not result in substantially reduced functional capacity to undertake any of the activities prescribed in s 24(1)(c), either on their own or in combination with the Applicant’s other permanent impairments.[73]
c)    The Applicant’s sensory impairment does not result in substantially reduced functional capacity to undertake any of the activities prescribed in s 24(1)(c), either on its own or in combination with the Applicant’s other permanent impairments.[74]
[72] Respondent’s SFIC, [47]-[48].
[73] Respondent’s SFIC, [52].
[74] Respondent’s SFIC, [61].
Before proceeding further, the Tribunal makes the following observations regarding the status of the evidence as it relates to the Applicant’s functional capacity. With respect to her functional capacity, the Applicant primarily relies on 2 reports prepared by Ms LT dated May 2022 and April 2024.
Ms LT completed a face-to-face functional capacity assessment in May 2022; and her May 2022 report records what she personally observed during that assessment. The Tribunal considers that those personal observations, by an occupational therapist, provide cogent insight into the Applicant’s functional capacity in May 2022. However, a significant portion of Ms LT’s May 2022 report essentially records what the Applicant self-reported to Ms LT regarding her functional capacity. It is unclear on the face of the report the extent to which Ms LT accepted without scrutiny and relied on what the Applicant reported to her, when formulating opinions and recommendations as recorded in her May 2022 report.
With respect to Ms LT’s April 2024 report, she makes no mention of having met with the Applicant in-person to reassess her functional capacity. The Applicant confirmed in oral evidence that she last met with Ms LT in-person approximately 2 years ago; and spoke with Ms LT on the telephone regarding her preparation of the April 2024 report. The April 2024 report makes no mention of Ms LT having reviewed current clinical material or having completed any contemporaneous standardised testing. It appears therefore that Ms LT has relied solely on the Applicant’s self-reporting when preparing her April 2024 report. The Tribunal is perplexed that an occupational therapist is prepared to author a report in which they express opinions about a person’s functional capacity, in circumstances where they have not observed the person for 2 years, have no recent empirical or clinical data regarding the person, and are entirely reliant on the person’s self-report. This is particularly so in circumstances where the person was reporting a significant decline in their functional capacity, and the report has been provided within the context of a Tribunal proceeding.
There is no functional capacity assessment in evidence other than those prepared by Ms LT. This means the last in-person functional capacity assessment prepared in relation to the Applicant is now more than 3 years old; and that appears to have been largely based on the Applicant’s self-reporting.
Communication

In her May 2022 report, Ms LT reported the Applicant was observed to answer all questions to the best of her ability; comprehend most questions as evidenced by her having responded with appropriate conversational language; be receptive and expressive in her language when communicating; and speak clearly at a steady pace.[75] The Applicant reported to Ms LT she requires additional time for writing and spelling.[76] Ms LT opined that without hearing aids the Applicant would be unable to hear effectively which can limit her ability to participate in conversations.[77] Overall, Ms LT concluded the Applicant can communicate her basic needs and wants, and can participate in the activity of communication.[78]
[75] E1, 42, 45, 47.
[76] E1, 248.
[77] E1, 47.
[78] E1, 52.
There is no suggestion in Ms LT’s April 2024 report that the Applicant cannot speak, write, or generally express herself; or that she cannot understand people or be understood.[79]
[79] E1, 254-257.
Clinical records released under summons by cohealth evidence the Applicant can explain to practitioners her circumstances, such as why she has scheduled an appointment or what she is hoping to address by way of therapeutic input; and can advocate for herself.[80]
[80] E1, 423-640.
When asked at the hearing whether she can carry on a conversation with a person indoors without hearing aids, the Applicant responded, ‘not really, because sometimes I don’t grasp the words that are said without them’.
The Applicant gave evidence she will sometimes telephone her housing provider on behalf of other tenants regarding problems arising in their accommodation; and that she has difficulty writing emails or communicating other than voice to voice, which she attributed to her psychosocial impairments.
On the material before it the Tribunal finds the Applicant can speak to effectively express herself, and others can understand what she says. There is no suggestion in the material that the Applicant cannot write, and in the absence of such evidence the Tribunal finds that she can albeit slowly. Whilst the Tribunal accepts that the Applicant will sometimes be unable to grasp words said to her if she is not wearing hearing aids and that this can make conversations difficult, it is not persuaded on the material before it that she cannot generally understand people. The Tribunal finds the Applicant can generally understand people. In circumstances where the Applicant can speak, write and generally understand people, the Tribunal finds the Applicant’s circumstances are not captured by those descried in r 5.8 of the Access Rules. Nor is the Tribunal satisfied the Applicant’s physical, sensory and/or psychosocial impairments, individually or cumulatively, substantially reduce her functional capacity to undertake the activity of communication.
Social interaction
In February 2019, Ms MF, a psychologist, reported that the Applicant’s social anxiety impacts on her community participation and opined she needs support to engage in group activities.
In a statement dated August 2019, the Applicant stated she has a friend who lives in her building, with whom she will sometimes share meals; and another friend who she would see 2 or 3 times a week.[81]
[81] E1, 229.
In May 2022, the Applicant reported to Ms LT she:
·     Had a good relationship with her sister and a couple of friends.[82]
·     Will attempt to avoid social interactions or activities that involve her leaving home and will sometimes not visit her sister due to feelings of anxiety.[83]
·     Due to fatigue, pain and social anxiety she will often prefer to stay home.[84]
·     Can be verbally aggressive.[85]
·     Uses an e-bike to access places nearby her home.[86]
·     Has good and bad days. She estimates 4 to 5 days each week are bad days.[87]
[82] E1, 43.
[83] E1, 47.
[84] E1, 51.
[85] E1, 48.
[86] E1, 51.
[87] E1, 43.
In her report dated May 2022, Ms LT:
·     Observed that the Applicant demonstrated appropriate behaviour, social cues and distance, was polite, and maintained appropriate eye contact.[88]
·     Opined the Applicant needs support to participate in leisure activities or access them due to physical and psychosocial limitations.[89]
·     Opined the Applicant is unable to participate in social interaction, commenting that if she is not wearing hearing aids, she is unable to hear effectively which can make engagement in social interactions difficult; and she can experience social anxiety making interactions with familiar and unfamiliar people difficult.[90]
·     Recommended the Applicant be referred to a speech pathologist to address social skills development, social conversation skills, what to expect in social settings to provide her with strategies to prepare and not become overwhelmed and subsequently increase her confidence.[91]
·     Opined the Applicant may benefit from occupational therapy to engage in social interaction programs to identify age-appropriate social interactions.[92]
[88] E1, 47, 48.
[89] E1, 51.
[90] E1, 42.
[91] E1, 54.
[92] E1, 248.
In her report dated April 2024, Ms LT reported the Applicant has been reticent to leave her home due to social conflicts with her neighbours, exacerbating her anxiety and community access where she is at risk of social isolation; and requires support workers to assist with community access.[93]
[93] E1, 256.
In June 2024, the Applicant reported to a counsellor that she had made friends with her neighbours and feels a sense of community and connection; is close to her sister and has gone on holidays with her in the past.[94]
[94] E1, 689.
In December 2024, Dr BW reported the Applicant’s bilateral deafness impacts her social functioning and recommended social supports, such as social groups; and that due to her impairments it is hard to socialise and go shopping.[95] Dr BW does not particularise how the Applicant’s social functioning is impacted by her hearing loss or other permanent impairments.
[95] E1, 259.
Clinical records produced under summons by cohealth evidence the Applicant has over several years routinely attended appointments with various clinicians.[96] These records do not suggest she attends such appointments otherwise than on her own. They also disclose that the Applicant attended group hydrotherapy classes in February and March 2025; reported to an exercise physiologist in March 2025 she was walking daily to the shops, and reported to a dietitian in July 2024 she is socially well connected.[97]
[96] E1, 423-640.
[97] E1, 423, 424, 425, 451.
The Applicant gave oral evidence to the effect:
·     She has had trouble building rapport with social workers.
·     She can get to the point where she is too exhausted to socialise or interact with the community. She would rather stay indoors and avoid everything.
·     She has 2 friends in her apartment block who will sometimes bring her food, and she will sometimes – possibly 1 to 2 times a week – go to their apartments to share a meal.
·     She has a further friend that lives close by who coparents her cat. They speak on the phone. Sometimes the Applicant will go to this friend’s house to visit her cat, and on those occasions, they will usually share a meal.
·     She speaks with her sister and brother on the telephone.
·     In April this year she attended the MCG with her sister to watch the Anzac Day football match.
·     She will sometimes attend the supermarket to get a few items.
·     She takes her dog for short walks, sometimes only as far as nearby grass.
The Tribunal broadly accepts that the Applicant’s physical, sensory and psychosocial impairments, to some extent, bear upon her ability to undertake various tasks that comprise the activity of social interaction. However, as was observed by the former AAT in Madeleine v National Disability Insurance Agency [2020] AATA 4025, guidance provided by the Access Guideline as to the range of tasks that comprise the activity of social interaction is ‘directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills’.[98]
[98] Madeleine v National Disability Insurance Agency [2020] AATA 4025, [87],
On the evidence before it, the Tribunal finds the Applicant has a few friends with whom she engages in-person and on the phone; has a good relationship with her sister; and will speak on the phone to her sister and her brother. Whilst the Applicant may have a small social circle, these relationships demonstrate she can make and keep friends. The Tribunal accepts that due to her physical and psychosocial impairments the Applicant will sometimes prefer to remain at home and not engage with the community and can find group situations difficult. However, the Applicant does leave home and there is inevitably some need to interact with the community when she does so. For example, she does small shops on her own which require her to engage with shop assistants, interacts independently with her various treating practitioners during appointments, and engaged in group hydrotherapy classes earlier this year. This suggests to the Tribunal that the Applicant can interact with the community.
For these reasons, the Tribunal finds the Applicant’s circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied the Applicant’s physical, sensory and/or psychosocial impairments, individually or cumulatively, substantially reduce her functional capacity to undertake the activity of social interaction.
Learning
The Applicant reported to Ms LT in May 2022 that she learns best when a task is demonstrated or she has visual cues.[99] Ms LT reported visual cues and videos are preferred over written documenting when learning new skills or tasks, based on the Applicant’s report she did not read a book until age 18 and subsequently had difficulty spelling.[100] Ms LT opined the Applicant requires initial assistance to support her learning and therefore is unable to do this independently initially.[101] The Tribunal gives Ms LT’s opinion with respect to this limited weight, due to the concerns raised at paragraph [59].
[99] E1, 46,
[100] E1, 47.
[101] E1, 53.
The Applicant gave oral evidence to the effect learning is an activity she has difficulty with, but she does not know how to resolve this as she has never had a diagnosis.
The Tribunal has not accepted that the Applicant has been diagnosed with a learning disorder.[102] Of course this does not mean her permanent impairment or impairments do not result in substantially reduced functional capacity to undertake the activity of learning. The Tribunal accepts the Applicant may learn best in a particular way. However, it is not persuaded on the evidence that the Applicant cannot understand and remember new things, or practise and use new skills. For these reasons, the Tribunal finds the Applicant’s circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied the Applicant’s physical, sensory and/or psychosocial impairments, individually or cumulatively, substantially reduce her functional capacity to undertake the activity of learning.
Mobility
[102] See paragraph [52].
In May 2022, the Applicant reported to Ms LT:
·     When experiencing pain and fatigue, she is unable to ambulate independently and walks with a slow shuffled gait using furniture to stabilise herself at home.
·     She cannot walk for more than 1 kilometre due to pain and fatigue.
·     She cannot carry her groceries home or ambulate that distance, so uses an e-bike with a basket to carry smaller items. For bigger shops she needs a taxi or support worker due to the physical strain.
·     She has bad days 4 to 5 days per week, during which she cannot ride her e-bike, has extreme difficulty mobilising around her home and accessing the community, and cannot ascend stairs.
·     She is independent with bed, chair and toilet transfers, although these can be extremely challenging when she is experiencing pain and fatigue.[103] She will often stay in bed on bad days due to symptoms caused by her physical disability.
·     When she is experiencing pain and fatigue, she can have significant limitations completing self-care tasks due to the physical movement required to execute them.
·     She has limitations lifting more than 3 kilos, and less on bad days; and when fatigued and experiencing pain she has difficulty with fine motor skills.[104]
[103] E1, 239.
[104] E1, 238, 239.
In May 2022, Ms LT reported that she personally observed the Applicant mobilise around her apartment without the use of a walking aid; complete several sits to stand transfers independently; have full fine motor control and coordination of her hands with appropriate manual dexterity grasp and in hand manipulation when making a cup of tea and signing appropriate documentation; and bend down to grab a document in a shelf where she used surrounding furniture to support her balance and assist with the transfer.[105] Ms LT noted there are grab rails in the shower and next to the toilet.[106] Ms LT recommended the Applicant be assessed by an occupational therapist for a hi-low bed and mattress to support mobility in bed and with transfers from supine to seated and on/off the bed safely and reduce potential risk of falls.[107]
[105] E1, 43, 44.
[106] E1, 239.
[107] E1, 248.
Clinical records released under summons by cohealth include information relevant to the activity of mobility. For example:
·     In March 2025, the Applicant reported to an exercise physiologist she was doing her home exercise program daily, walking daily to shops, and using her e-bike for transport/exercise. The Applicant also reported she was interested in doing a table tennis program via Reclink[108]
·     In January 2025, the Applicant reported to an exercise physiologist she could not walk more than 600 metres due to pain and fatigue; she walks her dog daily; and goes to shops.[109]
·     In December 2022, the Applicant reported to an exercise physiologist that she was walking with her dog 2 to 3 times per day, and to the shops; was riding 15 minutes almost daily; her walking ability had improved, and she could now walk 2 kilometres without stopping, but once she sits down has pain in her feet.[110]
·     In October 2022, the Applicant reported to a physiotherapist that she was walking a lot, focusing on ‘incidental exercise’ when going shopping i.e. went to Bunnings to walk and look at things, and riding her bike a little.[111] The Tribunal notes this was approximately 4 months after the Applicant completed a pain management program.[112]
·     In February 2022, the Applicant reported to a dietitian she seldom walks, but it is unclear why.[113]
[108] E1, 425.
[109] E1, 428.
[110] E1, 486.
[111] E1, 490.
[112] E1, 509-515.
[113] E1, 521.
The Applicant gave oral evidence to the effect:
·     She has approximately 5 bad days each week. On bad days she might take the dog out to the toilet in the morning and will otherwise spend the entire day in bed. She clarified however later in oral evidence that on bad days she will get up to go to the toilet, and she will generally eat breakfast.
·     She has a walking stick that she purchased at an op shop. She will sometimes use that when she goes out. There are grab rails next to the toilet and in the shower as her apartment is built for someone in a wheelchair.
·     She can move around her house independently. She can move the clothes she has hanging in the bathroom to somewhere else, but she couldn’t move furniture on her own.
·     She can bend down.
·     On occasions, she can function with her activities of daily living, but she cannot do that for 7 days in a row.
At the hearing, it was put to the Applicant it seemed peculiar that if she was having 5 bad days a week, which are as bad as she suggests they are, that is not something she has reported to her allied health and medical practitioners at cohealth, or that they have commented on in their consult notes. The Applicant commented she does not go to cohealth and say that for the last 7 months she has been getting up when she can and sitting on the couch all day; she goes there to discuss mediation she needs to have, or tests she has coming up, with her GP. She also commented that she does not see the exercise physiologist and physiotherapist a lot; she will see them, they might give her exercises, and then they might review her in 6 weeks. Further, if this wasn’t something her treating practitioners queried, she would not assume this was something she would have to tell them about because they are doctors.
Even if it is accepted that the Applicant has good and bad days with respect to her physical impairments, it is difficult to reconcile what the Applicant reported to Ms LT in May 2022, with what Ms LT observed in May 2022. It also seems implausible that if the Applicant has bad days as often as she reported to Ms LT and the Tribunal, and those bad days are as severe as claimed, there would be no references to that effect in the records produced under summons by cohealth where the Applicant has frequently attended with various practitioners for at least 5 years. The Applicant’s comment in relation to this concern was unpersuasive. Whist the Tribunal broadly accepts the Applicant has good and bad days, in the sense that on bad days her pain and fatigue are more debilitating, it finds the Applicant has exaggerated the frequency with which she has bad days, and the extent to which her functional capacity is reduced on bad days.
The evidence does not suggest the Applicant’s sensory and psychosocial impairments reduce her functional capacity to undertake the activity of mobility. The Tribunal finds accordingly. The Tribunal accepts that the Applicant has good and bad days with respect to her physical impairments, and that on bad days those impairments bear upon her ability to mobilise. However, the Tribunal finds that even on bad days, the Applicant can move around her home without any walking aid, complete all transfers (albeit with some difficulty), and take her dog outside to go to the toilet. The Tribunal accepts the Applicant’s evidence that she will sometimes use a walking stick when in the community; and cannot ride her e-bike on bad days.
It is unclear whether, or the extent to which, the Applicant requires the grab rail next to the toilet for toilet transfers. Nor is it clear exactly how often the Applicant will use a walking stick when in the community. However, in any event, the Tribunal considers a grab rail and a walking stick are generally accessible, do not require complex customisation or installation, are simple to use, and inexpensive.[114] In these circumstances, the Tribunal considers these to be commonly used items for the purposes of r 5.8(a) of the Access Rules.
[114] Rooney and National Disability Insurance Agency [2021] AATA 3523 (1 October 2021), [27].
For the reasons in paragraphs [88] and [90], the Tribunal finds the Applicant’s circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied the Applicant’s physical, sensory and/or psychosocial impairments, individually or cumulatively, substantially reduce her functional capacity to undertake the activity of social interaction.
Self-care
In a statement dated August 2019, the Applicant reported that on good day, amongst other things, she can shower and eat breakfast; and on a bad day she can still use the toilet, she might shower, she will not generally eat, and she struggles to drink water.[115]
[115] E1, 231.
In May 2022, the Applicant reported to Ms LT:
·     She can independently wash herself and attempts to shower every couple of days. The task can be an effort due to pain and fatigue. On bad days she can have limitations with showering as she cannot engage in the task due to pain. On bad days she cannot wash her hair.[116]
·     She can dress herself, however on days where she experiences pain and fatigue this task can become more challenging, noting that sometimes she cannot complete it.[117]
·     She can toilet but requires a handrail to support herself. On bad days this task can be challenging.[118]
·     She has limitations eating effectively throughout the day. She has days where she will eat ‘excessively’ or ‘not at all’. She would like to learn effective eating habits. She can occasionally prepare meals but does not maintain an adequate diet – she will usually make quick easy meals and can have difficulty with portion control. She has a social worker who assists with meal preparation. She hoards groceries.[119]
·     She is a hoarder and was receiving help to manage this behaviour but finds the support to be ineffective. Decluttering can make her feel overwhelmed, stressed, anxious, and physically drained.[120]
·     On bad days cleaning can be challenging due to pain and fatigue. She can’t complete this task at times and needs support, but her OCD can make her anxious as she wants to ensure they clean the right way. She cannot make the bed.[121]
[116] E1, 49.
[117] E1, 49.
[118] E1, 49.
[119] E1, 49-50.
[120] E1, 50.
[121] E1, 50.

In May 2022, Ms LT reported she observed the Applicant to be dressed in clean clothing with brushed hair at the time of the assessment.[122] She recommended a range of capacity building supports and increased core support to support the Applicant to improve independence with self-care tasks and support her to improve her current diet and mealtime preparation.[123]
[122] E1, 49.
[123] E1, 54, 55.
In April 2024, the Applicant reported to Ms LT she is now unable to close the door when toileting due to the amount of clutter in the home. The home can be difficult to clean due to the complexity of the hoarding disorder, anxiety, and OCD behaviours, as the cleaning process can become extremely distressing and causes the Applicant to be emotionally overwhelmed.[124]
[124] E1, 256.
In December 2024, Dr BW reported that the Applicant’s physical impairments are barriers to self-care in household tasks including managing hoarding, and recommended a range of supports, including occupational therapy for enabling household tasks.[125] Dr BW’s evidence does not particularise how the Applicant’s physical impairments impact her functional capacity with respect to self-care; or whether this was her own opinion or what was self-reported by the Applicant.
[125] E1, 259.
The Applicant gave oral evidence to the effect:
·     She can perform self-care tasks, but she now does this in a more limited way. Due to fatigue, she may only shower 3 times a week and when she does shower, she doesn’t necessarily wash her hair.
·     It will depend what she has on during the day, as to what self-care she may complete. She will for example prioritise taking the dog out or attending an appointment, over showering due to fatigue.
·     She can make vegetable soup and will often snack on biscuits with tomato and onion. Other meals she can cook for herself include salad, fish fingers, pita bread with dip; homemade pizza and tacos, or steak. She will not eat leftovers or frozen meals, so usually must try to prepare fresh food. She needs more knowledge around healthy meal choices. She feels it is difficult psychologically to start the process of cooking; however, she can physically do the tasks of preparing a meal.
·     Her kitchen is not dirty, but it is cluttered due to her hoarding. Her entire house is cleaner than when she moved in, but the clutter is overwhelming.
The evidence does not suggest the Applicant’s sensory impairment bears upon her functional capacity to undertake the activity of self-care. The Tribunal finds it does not.
Whilst the Tribunal accepts the Applicant experiences significant challenges with disordered eating and decluttering due to her psychosocial impairments, the Tribunal agrees with the Respondent’s submission those challenges are more appropriately categorised as falling within the activity of self-management as they relate to the mental or cognitive ability to plan, regulate and manage, rather than the physical ability to complete self-care tasks.
The Tribunal accepts that the Applicant has good and bad days with respect to her physical impairments, and that on bad days those impairments bear upon her ability to undertake a range of tasks that comprise the activity of self-care. The Tribunal also accepts that on bad days the Applicant may prioritise tasks associated with activities other than self-care.
However, noting the Tribunal’s observations and findings at paragraphs [59] to [61], and paragraph [88], the Tribunal is not persuaded on the evidence before it that the Applicant, even on bad days, cannot get dressed, usually shower, or go to the toilet. The Tribunal accepts the Applicant experiences some difficulty with disordered eating because of her psychosocial impairments. However, the Applicant’s own evidence, which the Tribunal accepts, is that she can prepare simple meals for herself and eat. Whilst the Tribunal accepts the Applicant would require physical assistance for heavier household cleaning tasks on bad days because of her physical impairments and can at times be overwhelmed by cleaning more generally because of her psychosocial impairments, the Tribunal is not persuaded she cannot usually complete lighter household cleaning tasks.
The Tribunal accepts the Applicant’s evidence that she uses the grab rail in the shower. However, as has already been determined at paragraph [90], the Tribunal considers that to be a commonly used item for the purposes of r 5.8(a) of the Access Rules.
For the reasons in paragraphs [98] and [102], the Tribunal finds the Applicant’s circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied the Applicant’s physical, sensory and/or psychosocial impairments, individually or cumulatively, substantially reduce her functional capacity to undertake the activity of self-care.
Self-management
With respect to the activity of self-management, it is not in contest between the parties, and the Tribunal is similarly satisfied, that the Applicant’s psychosocial impairments result in substantially reduced functional capacity to undertake the activity of self-management.[126] Indeed, with respect to this, the evidence overwhelming demonstrates the Applicant has significant difficulties with hoarding, disordered eating, planning, financial management, and establishing and managing routines.
[126] Respondent’s SFIC, [47]-[48].
With respect to the activity of self-management, the Access Guideline expressly states ‘We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks’.[127] The evidence as it relates to the Applicant’s functional capacity to undertake the activity of self-management does not suggest, nor support any finding, that the Applicant’s sensory or physical impairments bear upon her mental or cognitive ability to problem-solve, manage her money, plan, make decisions, or generally manage her life. It follows that the Tribunal is not satisfied that the Applicant’s sensory and/or physical impairments, either individually or in combination with the Applicant’s psychosocial impairments, substantially reduce her functional capacity to undertake the activity of self-management.
[127] Access Guideline, 9.
Given the Tribunal’s findings as outlined above with respect to the requirement in s 24(1)(c), the Applicant does not meet the disability requirements in s 24 in relation to her physical or sensory impairments.
Early intervention requirements
With respect to the early intervention requirements in s 25, for the reasons outlined above the Tribunal accepts that the Applicant has a sensory impairment and physical impairments that are, or are likely to be, permanent.[128] However, there is no suggestion in the evidence that the provision of early intervention supports for the Applicant is likely to benefit her by reducing her future needs for supports in relation to disability. No early intervention supports have been identified. The evidence does not speak to the likely trajectory and impact of her impairments over time, or the potential benefits of early intervention on the impact of the impairments on her functional capacity and in reducing her future needs for supports.[129] On the material before it, the Tribunal is not satisfied the provision of early intervention supports for the Applicant with respect to her sensory and/or physical impairments is likely to benefit her by reducing her future needs for supports in relation to disability. It follows that the requirement in s 25(1)(b) is not met; and the Applicant therefore does not meet the early intervention requirements in s 25 in relation to her sensory or physical impairments.
[128] s 25(1)(a)
[129] r 6.9 Access Rules.
In summary, the Applicant does not meet the disability requirements in s 24 or the early intervention requirements in s 25 in relation to her physical or sensory impairments for the purposes of s 34(1)(aa).
Support worker assistance
The Applicant’s SOPS currently includes funding for 9 hours per week of support worker assistance.[130] The Applicant is seeking to have an additional 8 hours per week of support worker assistance funded in her SOPS.[131]
[130] Respondent’s SFIC, [76]. This was also confirmed at the hearing.
[131] E1, 263.
The Respondent contends an additional 8 hours per week of support worker assistance does not meet the requirements in s 34(1)(aa) or 34(1)(c).[132] The Respondent does however consider s 34(1) is satisfied in relation to a short-term increase in support worker hours by 4 hours per week for 12 months to assist the Applicant to build her capacity in meal preparation.[133]
[132] Respondent’s SFIC, [78]
[133] Respondent’s SFIC, [79].
In May 2022, Ms LT recommended the Applicant receive the following support worker assistance:
a)    Up to 2 hours once a week to assist with deeper cleans including cleaning bathrooms, floors and kitchen.
b)    Increased support worker assistance to help cultivate meal preparation skills and ensure health eating habits are formed.
c)    1:1 support for up to 3 hours a day, 4 times a week (Mon-Sun) to facilitate more structured activities in the home and in the community.[134]
[134] E1, 249.
In a letter dated 2 April 2024, Ms LT reported the Applicant requires:
a)    1:1 support to regulate herself.
b)    Increased support to assist with navigating and organising her home due to an exacerbation in her hoarding behaviours, obsessions, compulsions and anxieties.
c)    Regular cleaners to assist with household cleaning.
d)    Support to maintain her daily routine, ensure she attends appointments, and access the community.[135]
[135] E1, 255-256.
In December 2024, Dr BW opined the Applicant needs assistance with shopping and transport due to her physical impairments; and with social groups due to her sensory impairment.[136]
[136] E1, 259.
The Applicant reported to Ms LT:
a)    At the time of the assessment, she had a support worker once a week for up to 3 hours who was helping with meal preparation.[137]
b)    She often tidies up with support workers.[138]
c)    She cannot carry her groceries home, nor ambulate that distance, and therefore uses her e-bike which has storage for smaller items. She needs physical assistance, such as from a support worker, to do her weekly groceries due to the physical strain this has and her inability to complete the task independently.[139]
[137] E1, 238, 245.
[138] E1, 237.
[139] E1, 238.
The Applicant gave oral evidence to the effect:
a)    An increase in support worker assistance would probably be short term to alleviate hoarding.
b)    If she is funded for 17 hours of support worker assistance per week, those hours would be used to address hoarding and packing up belongings; to take her shopping and to attend appointments; and for general household cleaning. She regularly attends appointments with her doctor, and at the Peter MacCallum Cancer Centre.
c)    When the Tribunal questioned whether she had been using the 9 hours of support worker assistance for which she is currently funded, the Applicant stated she currently has a support worker who helps her for 2 to 3 hours each week, and that this arrangement has been in place for approximately 12 to 18 months. That support worker takes her shopping, cleans the fridge, and tries to address clutter arising from hoarding. The last time she used 9 hours per week of support worker assistance was approximately 12 to 16 months ago.
d)    In circumstances where the Applicant is not currently using the 9 hours of support worker assistance for which she is currently funded, the Tribunal asked the Applicant whether she thinks she would in fact use the 17 hours of support worker assistance she is seeking on review. The Applicant said ‘no, probably less’. Her idea is that if she has more hours, the hoarding situation can be rectified faster.
In closing submissions, the Respondent submitted that an increase to 13 hours per week of support worker assistance is reasonable and necessary, despite the Applicant’s evidence she is not currently using all of the 9 hours per week of support worker assistance for which she is currently funded. This increase, it was submitted, will enable the Applicant to have a support worker to assist her with meal preparation, and potentially to implement the suggestions made by the occupational therapist and dietitian.
To the extent it has been recommended, and the Applicant is requesting, that additional support worker assistance be funded to address needs of the Applicant arising exclusively from her sensory or physical impairments, the Tribunal has already determined she does not meet the disability or early intervention requirements in relation to those impairments. For this reason, any such increase does not meet the requirement in s 34(1)(aa), and cannot be funded.
The 9 hours of support worker assistance for which the Applicant is currently funded has been provided to help with domestic activities; to explore and participate in community-based activities of interest; and to develop, build and maintain friendships.[140] It is not in contest between the parties that this support for these purposes is reasonable and necessary and continues to meet the criteria in s 34(1). The Tribunal is similarly satisfied of this. Indeed, the evidence overwhelmingly demonstrates that associated with her OCD, the Applicant has longstanding difficulties with hoarding.[141] Her home remains extremely cluttered and this impacts upon the usability and functionality of it.[142] It is well documented that the Applicant has longstanding difficulties with disordered eating, managing routines, planning, and problem solving.[143] Her social anxiety also impacts on her community participation.[144] The Tribunal broadly accepts Ms LT’s recommendation that the Applicant requires support to declutter and organise her home, establish and manage routines, plan, build her capacity with meal-time preparation, and engage in community-based activities.[145]
[140] E1, 105.
[141] E1, 59. 60, 227, 224-225, 229, 232, 267, 453, 479, 530, 533, 534, 542.
[142] E1, 255-256, 268, 427.
[143] E1, 48, 49, 54, 227, 229, 440-441, 442, 450, 451, 452.
[144] E1, 227, 249.
[145] E1, 249, 255.
In April 2024, Ms LT reported an exacerbation of the Applicant’s hoarding behaviours, reduced community access, and social isolation.[146] However, in circumstances where Ms LT’s April 2024 assessment was based entirely on the Applicant’s self-reporting, the Tribunal gives this evidence no weight.
[146] E1, 255-256.
There is no current clinical recommendation as to how many hours of support worker assistance may be required to address the Applicant’s needs arising from her psychosocial impairments. There is no objective clinical explanation of why her current funding for those purposes is insufficient. Nor does the evidence identify what, if any, additional benefits would in fact be achieved by funding additional hours of support worker assistance. The Applicant has not provided a cogent explanation of why the 9 hours of support worker assistance for which she is currently funded is insufficient. The Applicant has been consistently underutilising her existing funding for support worker assistance, and in these circumstances the Tribunal finds she has not to date optimised her existing funding. The Tribunal is not positively persuaded on the evidence before it that 9 hours of support worker assistance is insufficient to address the Applicant’s support needs arising from her psychosocial impairments; or that funding additional hours of support worker assistance will produce any additional benefits or better outcomes for the Applicant.
For the reasons in paragraph [120], the Tribunal is not persuaded that increased funding for support worker assistance will be, or is likely to be, effective and beneficial for the Applicant, having regard to current good practice; or that the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support. It follows that the request for additional support worker assistance does not meet the requirements in ss 34(1)(c) or 34(1)(d), it is therefore not a reasonable and necessary support, and it cannot be funded in the Applicant’s SOPS.
Additional 24-hour block of support worker assistance
The Applicant is seeking funding for an additional 24-hour block of support worker assistance to help move things from her home into a storage unit.
At the hearing, the Applicant explained that this is not something that has been recommended by any of her treating practitioners, yet rather it is her own idea of how her hoarding difficulties may be addressed. She hopes that if she can get things out of her home, and that doesn’t cause her anxiety, she could then let go of those things. She gave evidence to the effect that she cannot let go of things unless they are first out of the home and in a storage unit for a period. The Applicant elaborated on her idea, stating she thought she could get a group of support workers – maybe as many as 3 or 5 – in at one time so that the process could be completely quickly. She estimated this process could take up to 6 months if she only had 1 support worker to help with this.
The Applicant gave further evidence she has tried a range of things to address her difficulties with hoarding, but nothing has worked. She stated she was getting desperate, and then came up with this idea herself.
Consistent with the Applicant’s evidence at paragraph [123], a consult note made by a counsellor in July 2024 stated:
‘[The Applicant] stated that she has a goal of addressing her hoarding issues and finding a way to declutter her home. [The Applicant] stated that she feels having a storage unit and placing her extra belongings in that unit for a period of time would help her mind to accept that she can live without the clutter.’[147]
[147] E1, 453.
The Respondent contends there is no evidence from a psychologist or medical practitioner that the Applicant removing all her items to a storage shed will be effective in confronting her hoarding; and there is an absence of evidence as to why 24 hours is required.[148] The Tribunal agrees this is the status of the evidence with respect to this requested support.
[148] Respondent’s SFIC, [84].
There is no clinical recommendation for the requested support, and the Tribunal is not persuaded on the Applicant’s evidence alone that the requested support will help the Applicant to address her complex and entrenched hoarding difficulties. The Tribunal is therefore not satisfied the requested support will be, or is likely to be, effective and beneficial for the Applicant having regard to current good practice; or that the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support. It follows that the request for an additional 24-hour block of support worker assistance to move items from the Applicant’s home to a storage unit does not meet the requirements in ss 34(1)(c) or 34(1)(d), it is therefore not a reasonable and necessary support, and it cannot be funded in the Applicant’s SOPS.
Occupational Therapy
The Applicant is currently funded for 12 hours per year of occupational therapy. The Applicant is seeking to be funded for a total of 56 hours per year of occupational therapy, as recommended by Ms LT in her May 2022 report. The particulars of Ms LT’s recommendation are as follows:
·     17 hours of occupational therapy for AT (inc 2 hours travel)
·     19 hours of occupational therapy to develop a range of resources and sessions aimed at improving the Applicant’s independence with activities of daily living (inc 6 hours of travel)
·     14 hours of occupational therapy to develop routine, assist with mealtime preparation and cooking as well as explore AT that may assist the Applicant to conserve energy and attend to task (inc 5 hours of travel)
·     6 hours of occupational therapy to provide support letters for low-cost AT (inc 2 hours of travel)[149]
[149] E1, 249-250.

It is not in contest between the parties that the Applicant’s funding for occupational therapy should be increased. The Respondent submits that funding for a total of 26 hours of occupational therapy is reasonable and necessary and should be funded in the Applicant’s SOPS. The Respondent has raised several concerns regarding Ms LT’s recommendation.[150]
[150] Respondent’s SFIC, [98]-[106].
The Applicant’s oral evidence was to the effect:
a)    Whilst she is currently funded for 12 hours of occupational therapy, she has not been using that for a long time. She last saw Ms LT 2 years ago.
b)    She has recently found an occupational therapist based ‘around the corner’. The Applicant has had a review with that occupational therapist, but nothing further to date.
c)    The requested support would be to help develop an exercise plan, which would reduce her soreness and fatigue. It is hoped this will assist her to go out and be more social. The 56 hours she has requested is inclusive of a functional capacity assessment.
With respect to Ms LT’s recommendation, the Tribunal considers that the 17-hour block for AT, and the AT component within the 14-hour block, relate to needs arising exclusively from the Applicant’s physical impairments. The 14-hour block is not broken down, so doing the best it can on the material before it, the Tribunal finds that 22 of the 56 hours Ms LT has recommended relate to needs arising exclusively from the Applicant’s physical impairments. The Tribunal has not been satisfied the Applicant meets the disability or early intervention requirements in relation to those impairments. For this reason, 22 of the 56 hours of occupational therapy sought on review do not meet the requirement in s 34(1)(aa), and cannot be funded.
A concern raised by the Respondent, with which the Tribunal agrees, is that Ms LT’s recommendation includes roughly 1 hour of travel for each hour therapy session.[151] In circumstances where the Applicant resides in an inner-city suburb of Melbourne, this seems excessive. The Applicant has given evidence that she recently located an alternative occupational therapist close to her home. This development is appropriate and will significantly reduce the need for transport. Seven hours is to the Tribunal’s mind a modest estimate of the hours for transport recommended by Ms LT that will no longer be required.
[151] Respondent’s SFIC, [98].
The Tribunal notes that Ms LT’s recommendation includes 4 hours for report writing. The Tribunal considers that 3 hours should be sufficient for report writing to inform the next planning period.
Once 30 hours is carved away from Ms LT’s recommendation for the reasons as outlined in paragraphs [131] and [133], she has recommended the Applicant be funded for 26 hours per year of occupational therapy. This is consistent with what the Respondent accepts is reasonable and necessary and should be funded in the Applicant’s SOPS.
As has already been noted, the evidence demonstrates the Applicant has difficulties with disordered eating, planning, establishing and managing routines, and social anxiety. Ms LT reports that the recommended support will improve the Applicant’s independence with activities of daily living, support her to improve her current diet and mealtime preparations, and support her to engage in social and recreational activities of her choice.[152] Ms LT reports those therapy goals will be achieved in a range of ways, which includes but is not limited to capacity building assistance to develop routine, and assist with mealtime preparation and cooking; assistance with an activity interest checklist to help identify community access options; the development of resources and sessions regarding structured domestic routine, budgeting supports, and accessing community groups.[153]
[152] E1, 250.
[153] E1, 250.
Based on Ms LT’s recommendation, and allowing for those issues identified at paragraphs [131] to [133], the Tribunal is satisfied that a total of 26 hours of occupational therapy (the occupational therapy support) is an NDIS support for the Applicant;[154] and is necessary to address needs arising from psychosocial impairments in relation to which the Applicant meets the disability requirements.[155] The Tribunal is satisfied the occupational therapy support will assist the Applicant to pursue the goals included in her plan, specifically those which relate to working on day to day living skills, establishing regular routines to improve her wellbeing, community integration and increased confidence.[156]
[154] s 34(1)(f); National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Transitional Supports Rules), sch1, item 15.
[155] s 34(1)(aa).
[156] ss 34(1)(a), 34(1)(b); E1, 103.
There is no suggestion in the evidence that there is a comparable support which would achieve the same outcome as the occupational therapy support at a substantially lower cost. In supporting the Applicant to improve her independence with activities of daily living, particularly those that relate to self-management, the Tribunal considers the occupational therapy support has the potential to reduce the cost of the funding of supports for the Applicant in the long-term, and will substantially improve the life stage outcomes for, and be of long-term benefit to, the Applicant.[157] Having considered the matters prescribed in rr 3.1 and 3.2, the Tribunal is satisfied the occupational therapy support represents value for money, and will be, or is likely to be, effective and beneficial for the Applicant in accordance with ss 34(1)(c) and 34(1)(d). The Tribunal is further satisfied the occupational therapy support takes account of what is reasonable to expect families, carers, informal networks and the community to provide; and is most appropriately funded or provided through the NDIS.[158] Accordingly, the Tribunal is satisfied the occupational therapy support (a total of 26 hours) is a reasonable and necessary support and meets the requirements in s 34(1). It also meets the requirement in s 7 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1)(Miscellaneous Provisions) Transitional Rules 2024 (Transitional Miscellaneous Rules)
[157] rr 3.1(b), 3.1(c) Supports Rules.
[158] s 34(1)(e); Transitional Miscellaneous Rules, s 7.
Speech therapy
The Applicant is seeking funding for 20 hours of speech therapy over 12 months. She relies on a recommendation made by Ms LT in her May 2022 report that the Applicant see a speech pathologist to develop social skills and conversational skills.[159] Ms LT opined this support could coincide with psychology sessions.[160]
[159] E1, 249.
[160] E1, 249.
Sections 34(1)(aa), 34(1)(a) and 34(1)(b) are not in issue between the parties.[161] The Respondent contends the Applicant is already funded for 10 hours per year for a psychologist, and the evidence does not establish what, if any, additional benefit the speech pathologist would provide or why 20 sessions are necessary.[162] The Respondent submits the Tribunal cannot be satisfied the requirements in s 34(1)(c) or s 34(1)(d) are met.
[161] Respondent’s SFIC, [74].
[162] Respondent’s SFIC, [73]-[75].
In her May 2022 report, Ms LT reported:
‘In a previous FCA it notes that ‘[the Applicant] … reported that she experiences anxiety talking to new people and stated this is evidence from a physiological perspective as she experiences sweaty palms and a subjectively faster heart rate …
… [The Applicant] scored herself ‘extreme or cannot do’ on the WHODAS … with ‘getting out of your home’, ‘dealing with people you do not know’ and ‘making new friends’. She reported that she can be apprehensive when meeting people or even familiar people due to increased feelings of anxiety in social situations.’[163]
[163] E1, 242.
Ms LT has not recommended a particular number of hours of speech therapy. Nor has Ms LT explained why she recommends the Applicant receive speech therapy in addition to psychology. There is no other clinical recommendation in evidence for speech therapy.
The Applicant gave evidence she could not recall having ever been assessed by a speech pathologist. When asked whether anyone other than Ms LT has ever recommended, she see a speech pathologist, the Applicant gave evidence ‘I did go to a program, and they suggested it’. The Applicant did not elaborate on this further.
In the absence of any up-to-date, clearly particularised clinical recommendation for speech therapy, or clinical explanation as to what the goals of that therapy will be, how those goals will be achieved, and how outcomes will be measured, the Tribunal is not satisfied that any speech therapy will be, or is likely to be, effective and beneficial for the Applicant, having regard to current good practice; and the requirement in s 34(1)(d) is not met.[164] It follows that the requested support does not meet the requirements in s 34(1), is not reasonable and necessary, and cannot be funded in the Applicant’s SOPS.
[164] s 34(1)(d).
Dietitian
The Applicant is seeking to be funded for 20 hours of dietitian support over 12 months.
The Respondent accepts the Applicant would benefit from dietitian support.[165] However, the Respondent contends that 12 hours per year, rather than 20 hours per year, is reasonable and necessary and should be funded in the Applicant’s SOPS.[166] In closing submissions, the Respondent contended this is despite the Applicant’s evidence that previous dietitian support has not been particularly helpful.
[165] Respondent’s SFIC, [82].
[166] Respondent’s SFIC, [82].
In May 2022, Ms LT opined the Applicant requires referral to a dietitian to treat her disordered eating; with the frequency of sessions to be determined by a dietitian.[167]
[167] E1, 249, 250.
Documents produced under summons by cohealth disclose the following:
a)    The Applicant attended 3 appointments with a dietitian at cohealth between 28 June 2022 and 24 January 2023.
b)    On 28 June 2022 the Applicant reported difficulty with overeating, always feeling hungry, and needing to keep food separated.[168] The dietitian reported some undesirable food choices related to nutritional knowledge as evidenced by 2 meals a day, low intake of protein and carbohydrate and constant hunger.[169]
c)    On 4 October 2022, the dietitian reported the Applicant was also attending the fuelling good health group.[170]
d)    On 24 January 2023, the Applicant reported she wanted to get more into planning of food, and that a barrier was the need to clean out and organise her fridge.[171]
e)    On 5 September 2023, the dietitian reported the Applicant was discharged from dietitian episodes of care, including group support, following no further contact by the Applicant.[172]
f)     The Applicant attended 4 appointments with a dietitian at cohealth between 26 July 2024 and 19 September 2024.[173]
g)    On 26 July 2024, the Applicant reported to the dietitian she over eats, binge eats and is particular about what she eats.[174] The Applicant’s meal pattern was described as irregular – having at most 2 meals a day, overeating in the evenings, and needing to finish the leftovers of others if eating in a social setting.[175]
h)    On 9 August 2024, the Applicant’s dietitian recorded that the Applicant continued to skew towards large portions.[176]
i)   On 30 August 2024, the Applicant’s dietitian recorded she was working with the Applicant on strategies to remember to have 3 meals a day.[177]
j)   On 19 September 2024, the Applicant’s dietitian recorded she was working with the Applicant on strategies to remind the Applicant to eat lunch.[178]
k)    On 16 January 2025, a dietitian recorded the Applicant had not been seen for 3 months, and had reported to her counsellor she does not want any more dietitian appointments, and she was discharged.[179]
[168] E1, 404.
[169] E1, 506.
[170] E1, 492.
[171] E1, 479.
[172] E1, 470-471.
[173] E1, 440, 441, 445, 449.
[174] E1, 450.
[175] E1, 451.
[176] E1, 446.
[177] E1, 442.
[178] E1, 441.
[179] E1, 431.
In May 2022, the Applicant reported to Ms LT she can occasionally prepare meals but does not maintain an adequate diet, stating she will usually make quick easy meals and can have difficulty with portion control.[180] The Applicant also reported she can eat excessively or not at all, and she hoards groceries.[181]
[180] E1, 245.
[181] E1, 245.
At the hearing, the Applicant gave evidence to the effect:
a)    She envisaged the requested dietitian support would assist her with meal planning and food preparation, to come up with a good eating plan, to understand important nutritional information, and to form good habits around eating.
b)    She did not find dietitian appointments she attended last year particularly helpful. She clarified it was the nutritional education component of this support she did not find very helpful. She hopes a dietitian can come into her home and help her to prepare foods and understand good combinations of food. She learns best by doing something with someone or being shown something.
c)    She gets caught up in things and forgets to eat. She believes she has an eating disorder, but this is not diagnosed.
d)    She agreed the difficulties she has in relation to getting meals is habits, the need to make it fresh due to OCD, and a limited diet. She finds it difficult psychologically to start the process of cooking, that is to plan, shop, prepare, get it ready. She can however prepare a basic meal.
e)    She has never had the opportunity to see a dietitian once a month for 12 months. She conceded there is a possibility 12 hours would be enough for her.
The Tribunal accepts that the Applicant has longstanding difficulties with disordered eating. The Tribunal broadly accepts Ms LT’s recommendation that the Applicant requires referral to a dietitian in relation to that.
However, there is no particularised recommendation in evidence regarding how much dietitian support the Applicant requires over a 12-month period. In the absence of a clinical recommendation for 20 hours of dietitian support over a 12-month period, the Tribunal is not persuaded that quantum represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support; or that the support in that quantum will be, or is likely to be, effective and beneficial for the Applicant, having regard to current good practice.[182] It follows that 20 hours of dietitian support is not reasonable and necessary, and cannot be funded in the Applicant’s SOPS.
[182] ss 34(1)(c) and 34(1)(d).
The Tribunal is however persuaded on the material before it that 12 hours of dietitian support over 12 months (the dietitian support) is an NDIS support for the Applicant;[183] and is necessary to address needs arising from psychosocial impairments in relation to which the Applicant meets the disability requirements.[184] The Tribunal is satisfied the dietitian support will assist the Applicant to pursue the goals included in her plan, specifically those which relate to working on day to day living skills, and establishing regular routines to improve her wellbeing.[185]
[183] s 34(1)(f); Transitional Supports Rules, sch1, item 15.
[184] s 34(1)(aa).
[185] ss 34(1)(a), 34(1)(b); E1, 103.
There is no suggestion in the evidence that there is a comparable support which would achieve the same outcome as the dietitian support at a substantially lower cost. In supporting the Applicant to build her capacity with respect to meal planning and portion control, the Tribunal considers the dietitian support has the potential to reduce the cost of the funding of supports for the Applicant in the long-term, and will substantially improve the life stage outcomes for, and be of long-term benefit to, the Applicant.[186] Having considered the matters prescribed in rr 3.1 and 3.2, the Tribunal is satisfied the dietitian support represents value for money, and will be, or is likely to be, effective and beneficial for the Applicant in accordance with ss 34(1)(c) and 34(1)(d). The Tribunal is further satisfied the dietitian support takes account of what is reasonable to expect families, carers, informal networks and the community to provide; and is most appropriately funded or provided through the NDIS.[187] Accordingly, the Tribunal is satisfied the dietitian support is a reasonable and necessary support and meets the requirements in s 34(1). It also meets the requirement in s 7 of the Transitional Miscellaneous Rules.
[186] rr 3.1(b), 3.1(c) Supports Rules.
[187] s 34(1)(e); Transitional Miscellaneous Rules, s 7.
Physiotherapy
The Applicant is seeking funding for 20 hours of physiotherapy over 12 months. This support relates exclusively to needs arising from the Applicant’s physical impairments, in relation to which she does not meet the disability or early intervention requirements. For this reason, the Tribunal is not satisfied the requirement in s 34(1)(aa) is met; and the support cannot be funded.
Counselling
The Applicant is seeking funding for 20 hours of counselling per year.
The Respondent contends 20 hours of counselling per year does not meet the requirements in ss 34(1)(a), 34(1)(b), 34(1)(c) or 34(1)(d).[188] The Respondent also contends the evidence does not establish that the requested counselling is most appropriately funded by the NDIS, rather than being provided by cohealth; and the requested counselling may duplicate the Applicant’s existing psychology support.[189]
[188] E1, [90].
[189] E1, [90].
Documents produced under summons by cohealth evidence that the Applicant attended 11 counselling sessions between July 2024 and February 2025.[190] In a counselling assessment session in June 2024, the Applicant informed the counsellor she has had several experiences of counselling over the years; at times these sessions had been helpful, but at other times not so much.[191] In a consult note dated February 2025, the counsellor who conducted those 11 sessions reported:
‘Today was [the Applicant’s] final session in this EOC. Writer suggested a therapeutic break for [the Applicant] to implement the tools and strategies formulated in these sessions and begin the process of decluttering her home.
[The Applicant] to obtain another referral from her GP and go on the wait list to see writer later this year.’[192]
[190] E1, 426-427, 430, 431, 435, 436-437, 439-440, 443, 447, 452-453, 459-460, 461
[191] E1, 688.
[192] E1, 427.
In March 2025, the Applicant met with Ms VM at cohealth regarding preparation of a care plan, and Ms VM subsequently referred the Applicant for further counselling at cohealth.[193] Later in March 2025, Ms VM recorded that referral had been refused as the Applicant had only recently completed counselling, and clients normally need 4 to 6 months before more counselling sessions are allocated.[194]
[193] E1, 639.
[194] E1, 640.
As noted at paragraph [157], in February 2025 the Applicant’s former counsellor suggested she obtain another referral from her GP and go on the wait list to see her later in 2025. This is however the extent of any recent clinical recommendation that the Applicant have counselling. In the absence of any such recommendation, it is unclear what the goals of counselling would be, how those goals will be achieved, and how outcomes will be measured. Nor is it clear whether, and if so how, counselling will assist the Applicant to pursue her plan goals. In these circumstances, the Tribunal is not persuaded counselling will assist the Applicant to pursue the goals included in her NDIS plan; will be, or is likely to be, effective and beneficial for the Applicant, having regard to current good practice; or represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support. It follows that the requested counselling does not meet the requirements in ss 34(1)(a), 34(1)(c) or 34(1)(d), is not reasonable and necessary, and cannot be funded in the Applicant’s SOPS.
Hearing aids

The Applicant is seeking funding for hearing aids. This support relates to needs arising exclusively from the Applicant’s sensory impairment, in relation to which she does not meet the disability or early intervention requirements. For this reason, the Tribunal is not satisfied the requirement in s 34(1)(aa) is met, and the support cannot be funded.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:
1)The statement of participant supports specifies that the reasonable and necessary supports include:
a)    Level 2 support coordination – a total of 40 hours per year
b)    Occupational therapy – a total of 26 hours per year
c)    Dietitian – 12 hours per year
2)All other supports in the Applicant’s existing statement of participant supports are to be replicated pro-rata from the date on which the supports specified in paragraph [1] are included in the Applicant’s statement of participant supports.
3)The management of the supports budgets in the Applicant’s plan is to remain the same as the management of the supports budgets in the Applicant’s existing plan.
4)The date by which the Respondent must reassess the Applicant’s plan is to be 12 months after the date on which the supports in paragraph [1] above are included in the Applicant’s statement of participant supports.