[3]Andrews and National Disability Insurance Agency (NDIS) [2026] ARTA 302 | Case summary | Zoe

[31]

[The Applicant] presented to this clinic on 24/4/2014, complaining of increasing pain, stiffness in his hips, and shaking in his legs, resulting in worsening mobility. He reported that this had been progressing over 1-2 years, and that he had suffered injuries in an MVA when aged 13, and had undergone multiple surgeries for these injuries. > > [The Applicant] subsequently underwent examination and investigations by my colleague Dr David King, and subsequently Dr Ian Fagg and myself, resulting in a diagnosis if significant osteoarthritis of the right hip, both knees, and lumbar spine. (Relevant investigation reports are available). > > [The Applicant] has consulted 3 orthopaedic surgeons who agree with these diagnoses, but [the Applicant] has been considered unift (sic) for surgery due to his morbid obesity. [The Applicant] has been referred for bariatric (weight loss) surgery, however these procedures are not available in the public hospital system, and the cost privately is prohibitive for [the Applicant]. [The Applicant] has been referred and has attended consultations with a dietitian, physiotherapists, and podiatrist over the past 12 months, to assist with his weight loss and mobility. > > Despite this, unfortunately [the Applicant] has been unable to lose significant weight, largely due to his inability to exercise. His mobility has not improved. He now required a walking aid, and has difficulties with his activities of daily living, such as toileting and bathing. > > Diagnoses: > > - Morbid Obesity - stable over many years, despite weight loss attempts, and dietitian input. > > - Osteoarthritis - Bilateral Hip - diagnosed and treated May 2014, Lumbar Spine - diagnosed and treated November 2015, Bilateral knee - diagnosed and treated November 2015. All affected areas are treated, stabilised, and not expected to improve, given that he is unfit for surgery. > > - Type 2 Diabetes - diagnosed 2016, stable > > - Depression - diagnosed 2015, stable > > - Plantar fasciitis - right foot - diagnosed 2014, symptoms may improve with time > > - Hypertension - treated with medication and stabilised 2016_._ > > Conclusion: > > I believe that [the Applicant]'s medical condition and disability is stable and permanent. He has been formally investigated and diagnosed with the above medical conditions. Medical management has been implemented, and his condition has been stable over the last 2 years. Management strategies will continue with the aim of maintaining his function and mobility as far as possible. > > These medical conditions have a significant impact on [the Applicant's] function and render him unfit for work. I therefore fully support his application for the Disability pension.

[42]

A further consultation took place on 23 June 2022. It noted that the Applicant was seeking a home transfer as his toilet was too close to a wall for him to use his bariatric seat.[28] Dr Gibbes also wrote to Mr Peter Jordan, chiropractor, Ettalong Chiropractic to ascertain whether he would be willing to be involved in 'Team Care Arrangements' under an enhanced primary care plan.[29] Mr Jordan confirmed his willingness on 2 July 2022. Dr Gibbes authored a GP Management Plan on the same date.[30]
On 21 July 2022 the Applicant attended on Dr Gibbes seeking a referral to a clinical psychologist.[31] She noted that the Applicant advised that he now mobilises using two canes and that his bariatric walker does not fit through the doorframe at his home. He was also reviewed following a fall when stepping out of a taxi. He expressed difficulty with his neighbour and feels unsafe and is seeking an apprehended violence order. He stated that he requires the referral to a psychologist so that "they can prepare a statement for legal purposes". A mental health care plan was provided and the Applicant was referred to Deepwater Psychology, where Dr Gibbes noted that the Applicant was well prior to conflict with his neighbour and that he has not required anti-depressant medication.[32]
On 18 August 2022 a face-to-face consultation occurred.[33] The Applicant advised that he is using a home massage device which has allowed him to decrease his pain medications. He disclosed ongoing stressors with his neighbour and a referral for occupational therapy review was made to investigate mobility aides. Dr Gibbes also wrote a letter to the Applicant's public housing provider stating that the Applicant's sleep has been adversely affected by incidents with his neighbour resulting in a referral to a clinical psychologist.[34]
Another in-person consultation took place on 15 September 2022 where the Applicant advised that Mr Todd Williams, physiotherapist, was providing him with good relief in respect of his hip and thigh pain.[35] Dr Gibbes authored a chronic disease management plan, regarding an occupational therapy assessment by Mr Nathaniel West, My Aged Care, in respect of the Applicant's morbid obesity and treatment for his osteoarthritis by Mr Williams and his mood disorder by Ms Sharon Gold, psychologist.[36]
The Applicant consulted Dr Gibbes in person on 13 October 2022 whereby the Applicant spoke of his ongoing pain, noting some benefit from attending a massage therapist.[37] He also fears reprisal from his neighbour.
The Applicant underwent a driver's licence examination on 10 November 2022.[38]
In a face-to-face visit on 8 December 2022 the Applicant confirmed that he is attending massage therapy and a chiropractor.[39] Dr Gibbes noted that the Applicant is "walking better" and his right knee is "bending better" but that there was no improvement in his pain. She provided a letter supporting his public housing transfer given the difficulties he was experiencing with his neighbour.[40]
At his next clinic visit on 2 February 2023 Dr Gibbes completed a GP Management Plan.[41] On 6 February 2023 she completed a Housing Pathways - Medical Assessment and Housing Pathways - Independent Living Skills assessment form by hand.[42] However, there are two such versions of these forms in evidence - one handwritten and one typed, both purportedly signed by Dr Gibbes.
In the handwritten Medical Assessment form Dr Gibbes reported that the Applicant lives with chronic pain, has severely impaired mobility, thermal dysregulation, walks with two canes and is sensitive to stress and interpersonal conflict. She stated that these conditions affect the Applicant's housing needs as he requires one level, no stairs, wheelchair accessible-wide doorways and an accessible bathroom. Dr Gibbes stated that the Applicant was unable to walk more than 20m and cannot sit in public transport seats. She went on to state that the Applicant walks with two canes or a walker, uses a mobility scooter for outings and may need a wheelchair in the "near future".[43]
This is contrasted to a typed Housing Pathways - Medical Assessment form[44] which states that the Applicant requires a wheelchair "at times" but his current home was not bariatric wheelchair accessible.[45] The typed report stated that he is unable to walk more than 10m with two canes and unable to enter, sit and alight from public transport.
The handwritten form stated that the Applicant could not manage steps whereas the typed form stated that he could manage 1-2 steps[46] and that the Applicant required a bariatric toilet and wheelchair height kitchen.[47] In the handwritten form a single level, enclosed land or garage for scooter/exercise equipment, with a preference for over 55s property, was considered a requirement for the Applicant's conditions. However, the typed form stated: [48]

[53]

On 23 March 2023 the Applicant reported worsening pain, especially in his lower back radiating to his right hip, right knee and groin.[62] A trial of Lyrica was commenced and a left foot x-ray ordered due to pain at the base of his toe. A further form was completed regarding his care and medical requirements for a retirement village.
A further consultation took place on 27 April 2023 where the Applicant reported ongoing right leg and knee pain. He advised that his chiropractor had reported his right leg was 50mm shorter than his left leg and so he was consulting with a podiatrist. He reported right iliac fossa and flank pain. He has also seen an occupational therapist regarding a scooter; both the occupational therapy consultation and scooter were funded under his Aged Care Package.
On 25 May 2023 the Applicant attended for a review of his GP management plan and Team Care arrangements.[63] Dr Gibbes noted that the Applicant now had a two-wheel scooter with bariatric seat that enabled him to take out his garbage and access his storage unit. She wrote a letter of support to the Applicant's home care provider for reimbursement for the electric scooter.[64] He advised that his housing transfer request had been escalated and she wrote a letter of support for the transfer.[65] He was also referred for cardiology review.[66]
On 22 June 2023 a review of the Applicant's home care plan was undertaken and the Applicant reported feeling stressed due to ongoing issues with his neighbour, impacting on his sleep.[67] She authored a letter for housing on the same day.[68]
On 20 July 2023 Dr Gibbes authored a letter to the Applicant's home care provider recommending reimbursement of a dryer/heater, reporting that the Applicant used it after bathing as he cannot effectively dry all his body with a towel due to his disability.[69]
On 17 August 2023 Dr Gibbes authored a letter of support for a complimentary scooter for the Applicant when he shops.[70] Reduction in the Applicant's pain medications were discussed; the Applicant states that he experienced pain 24/7, especially when walking and that he would have to reduce his activity levels further if his pain relief was reduced. It was noted that he would consider attending physiotherapy or exercise physiologist but cannot afford it and his Aged Care Package will not cover this. A letter advising that the Applicant requires ongoing nursing attention in the same terms as Dr King on 7 January 2022 was authored.[71] A further letter to the local hospital based pain clinic was also authored by Dr Gibbes on that day, wherein she stated that the Applicant's mobility is very poor and he is now in receipt of disability support pension due to his obesity, but he will not take advice regarding weight loss on board. Dr Gibbes also noted that despite being referred to dieticians, exercise clinics and physiotherapists the Applicant's weight has only increased.[72]
On 2 September 2023 the Applicant wrote to Dr Gibbes reporting ongoing difficulties with his neighbour, stating:[73]

[55]

On 14 September 2023 Dr Gibbes completed a mental health care plan as the Applicant is experiencing ongoing stress with his neighbour[74] and again wrote to the public housing provider advocating a housing transfer.[75] A DASS was completed with findings of depression in the normal range, anxiety as extremely severe and stress as moderate. A referral was made to a primary care team for psychological support.[76] Smoking cessation counselling was provided and it was noted that he was still awaiting a pain clinic appointment. The results from a bone mineral density test showed osteopaenia and height loss. It was also noted that he had lost 15 kgs in the last 12 months by a combination of carers providing meals and a meal delivery service.
On 12 October 2023 the Applicant was diagnosed with Type 2 diabetes.[77] Leg pain and severe osteoarthritis with limited treatment options were noted. An enhanced primary care plan was authored,[78] referring the Applicant to an exercise physiologist noting that podiatry and other allied health was provided through My Aged Care.[79]
The Applicant next attended the practice on 9 November 2023 and reported that he fell twice with his leg giving way, with pain in his right hip, left knee and lower back since.[80] It was noted that an occupational therapist with the Department of Communities and Justice was visiting that afternoon to explore housing transfer. On 16 November 2023 Dr Gibbes provided an occupational therapy referral to assess a potential new residence.[81]
On 7 December 2023 the Applicant reported to Dr Gibbes that he continued to mobilise with two canes, but with great difficulty.[82] He also has a walker to assist with mobilisation, but experiences pain in his hips and back. He reported ongoing falls. Oedema was noted in his legs and feet. He was again referred for cardiac review.[83] A housing letter was authored to explain the Applicant's delay in moving into his new home due to illness.[84]
A telephone consultation took place on 12 December 2023 where the Applicant reported that his legs remain very swollen and painful to walk on. A graze on his leg is being attended to by his carers.[85] At a telehealth appointment on 2 January 2024 the Applicant reported he was recently hospitalised following query of proctitis, diverticulitis or impaction.[86]
On 5 January 2024 the Applicant consulted Dr King seeking to top up his pain medication. He was advised to use only paracetamol in addition to his current medications.[87]
On 12 January 2024 the Applicant reported that the pain medications were not sufficient to manage pain symptoms.[88] A referral to a pain clinic was provided and again following a telehealth consultation on 15 January 2024.[89]
On 17 January 2024 a DASS was completed indicating the Applicant was experiencing moderate depression, extremely severe anxiety and normal stress, severe pain and pain was causing him severe interference.[90]
On 24 January 2024 the Applicant reported worsening pain symptoms and that his new medication is not providing similar relief to his previous medication.[91] He was referred to Mr Ron Moore, Coastal Massage and Muscle Therapies and Mr Peter Jordan, chiropractor, Ettalong Chiropractic for opinion and management of his musculoskeletal pain.[92] Imaging records were forwarded to the pain clinic. Dr Gibbes also recommended the Applicant's home care provider fund an access-controlled system to allow him to provide access to his home to others without needing to mobilise, rubbish removal, reimbursement of a garage roller door opener, home blood pressure monitor, a bariatric wheelchair as well as physiotherapy and exercise physiology sessions.[93]
On 8 February 2024 the Applicant reported that he had seen the chiropractor with some relief and his symptoms were improving.[94] He also reported a fall when sitting on his walker. He was still awaiting pain clinic review. A referral to Dr Stuart Gray, orthopaedic surgeon, was made noting that the Applicant had not been reviewed since 2016.[95]
On 13 February 2024 the Applicant attended his initial appointment with Mr Mark Davis, counsellor.[96] In an undated letter sent to Dr Gibbes in 2024 Mr Davis reported:[97]

[65]

On 13 March 2024 the Central Coast Integrated Pain Service advised Dr Gibbes that the Applicant indicated that he did not wish to engage with the multidisciplinary group pathway at the service but did consent to being placed on a waiting list for medical review with a pain medicine specialist.[105]
In a consultation dated 4 April 2024 Dr Gibbes recorded that the Applicant was considering a residential aged care facility as his carers were unreliable and he was unable to care for his home and himself.[106] He was to check his aged care assessment status and begin looking for a provider. The Applicant also requested another right knee image as he feels that the radiologist did not do an adequate job.
On 22 April 2024 the Applicant consulted Dr Jill McDowell, general practitioner, seeking the completion of a form to get assistance from the Applicant's local council to take in and out his bins.[107] They discussed referral for coronary angiogram. On 22 April 2024 the Applicant was again reviewed by Dr Gibbes, who noted that the Applicant found his new carers very helpful and there were no medical contraindications regarding the Applicant driving, including his severe osteoarthritis and chronic pain.
The Applicant's next consultation with Dr Gibbes took place on 30 May 2024.[108] He reported chronic pain now that the weather was cooler, that his mobility was deteriorating, his knees and back were worse and his hip pain had remained unchanged (bad). He also reported a dispute with his carer agency which was stressful and new carers have been organised. Oxycodone was prescribed, stressing that this was not for regular use. It was also noted that he had not attended the cardiology clinic for tests because he could not get there early in the morning.
The Applicant next consulted Dr Gibbes on 27 June 2024, reporting that he had an appointment with a pain clinic in August 2024.[109] Dr Gibbes referred the Applicant for cardiac review as his blood pressure has been high.[110]
At his next appointment on 25 July 2024 the Applicant advised that the cardiology clinic was running late and so he did not wait to be seen.[111] He also reported that he did not want to go back. Instead, he wanted a referral to another hospital-based cardiology clinic. Dr Gibbes completed this referral on the same day.
On 21 August 2024 Dr Gibbes wrote a letter seeking a mental health plan review.[112] On 22 August 2024 the Applicant advised Dr Gibbes that he was attending the pain clinic that afternoon.[113] She completed a GP management plan on that day.[114]
On 22 August 2024 Dr Vidya Shirumalla, staff specialist, Central Coast Integrated Pain Service wrote to Dr Gibbes advising that the Applicant was adamant that he must continue to be prescribed opioid medications despite the risks associated with long term use.[115] The Applicant advised that he can only use his four wheel walker when he drives himself in the community and must mobilise with two canes when using a taxi as drivers will not assist with taking the walker in and out of the car. He also stated that he is "happy" with the way his allied health is organised (weekly massage, fortnightly physiotherapy and triweekly chiropractic review) and declined any further input from the pain clinic. He was formally discharged from the pain clinic on 26 August 2024.[116]
On 27 August 2024 Dr Gibbes noted the pain clinic review with recommendation for ongoing use of Targin and Endone.[117] On 9 September 2024 Dr Gibbes conducted a telehealth appointment where the Applicant reported worsening back pain over the last fortnight affecting his movement.[118] He reported he now needs a wheelchair to safely mobilise due to his severe low back pain. Dr Gibbes provided a letter for the Applicant's care provider to fund this. He also reported issues with his home care provider, which is causing him stress. He reported that he continues to attend counselling for his mental health.
On 19 September 2024 a face-to-face consultation took place.[119] Dr Gibbes noted that the Applicant was "very slow getting up and walking" into the consulting room. The Applicant reported his mobility was deteriorating and he was looking into wheelchair options. She provided a letter addressed to his current care provider to fund an access control for his front and back doors.[120] The request for a CT scan of his lumbar spine was reprinted given his report of worsening back pain.
On 30 September 2024 a telehealth consultation took place where it was noted that the Applicant has cellulitis in both legs.[121] On 2 October 2024 the Applicant sought a consultation given his bilateral cellulitis. He reported stress and fatigue as his court submissions were due in two days.[122] Dr Gibbes authored a medical certificate stating that the Applicant was unfit to work, study or attend court from 2 to 7 October 2024 inclusive due to an infection and hypertension.[123]
On 14 October 2024 the Applicant reported worsening right leg pain and back pain when lying down. It was noted that his morbid obesity restricts his movement and exacerbates his pain.[124] A GP management plan was authored on that date, which included a goal to achieve sustained, significant weight loss, but noted that the Applicant had declined weight loss medications. Another goal was to improve pain and functioning arising from his osteoarthritis, with the treatment being occupational therapy, surgical review and physical therapies.[125]
On 31 October 2024 the Applicant sought, and received, a certificate of capacity following being hit by a car when walking in a carpark on 25 October 2024.[126] He reported being pinned between his trolley and his own car. Soft tissue injuries to right torso, hip, thigh and ankle were noted. He reported his pain had worsened since the injury and his mobility had reduced ("slower than usual") and sleeping is painful. He reported feeling angry, irritable and traumatised with memories from a motor vehicle accident in April 1976 coming back. It was noted that he had one visit remaining on his Medicare mental health plan. The Applicant was uncertain where to lodge his insurance claim.
The Applicant returned to the practice again on 14 November 2024. He had lodged an insurance claim reporting ongoing right sided pain and leg twitching. The Applicant reported he cannot afford medications for weight loss.[127]
On 28 November 2024 Dr Gibbes completed a further certificate of capacity[128] and a mental health care plan.[129] The Applicant reported that his mood has deteriorated since the accident and he is wary of leaving the home. The DASS revealed moderate depression, extremely severe anxiety and severe stress. The Applicant advised Dr Gibbes that he is expecting to win a payout following the motor vehicle accident.
On 12 December 2024 the Applicant advised Dr Gibbes that he was not interested in smoking cessation and declined cardiology review because these appointments were scheduled at 8:00am.[130] It was noted that computer tomography (CT) scan and chest x-ray were normal following the motor vehicle accident. He was still awaiting a hip ultrasound and x-ray. A further GP management plan was authored.[131] She also wrote to the Applicant's home care provider seeking reimbursement of a finger pulse oxygen meter.[132]
On 9 January 2025 the Applicant consulted Dr Gibbes and advised he is experiencing ongoing left lateral thigh pain, which he is treating with massage and acupuncture.[133] A further certificate of capacity was provided.[134]
A right hip x-ray and ultrasound was performed on 14 January 2025 which noted severe degenerative change to the right hip and bursitis, observing that the assessment was limited due to the patient's habitus and inability to straighten his leg.[135]
On 15 January 2025 GIO Insurance wrote to the Applicant regarding a recovery plan, used to record his recovery from his injuries following the 25 October 2024 accident.[136] It was noted that he was preapproved for physiotherapy and psychology treatment. It recorded that the Applicant's goals included being able to leave the home to socialise, drive without anxiety and move with less pain.
On 6 February 2025 Dr Gibbes noted that the Applicant last attended a pain clinic review in August 2024.[137] The right high CT scan showed severe degenerative changes on the right hip. The CT of the spine noted right L4 nerve root irritation and facet joint osteoarthritis. Dr Gibbes noted that previous orthopaedic review in 2016 found that he was not suitable for surgery due to his obesity. A new referral was provided to orthopaedic surgeon Dr Gray for repeat opinion, querying whether there are new methods and reassessment based on the Applicant having lost some weight. The Applicant reported that the motor vehicle insurer had approved six physiotherapy sessions. He also reported the onset of mental health difficulties since the motor vehicle accident, whereby he is unable to cope with pressure or deadlines. He also reported that his current armchair was broken and in disrepair, so Dr Gibbes provided a letter to the Applicant's aged care provider for a new extra-large recliner chair.[138] She also provided an updated certificate of capacity.[139]
On 20 February 2025 the Applicant reported that he required a new referral for another orthopaedic surgeon, as the next available appointment was August 2026.[140] Dr Gibbes provided an updated referral to Dr Darren Paterson.[141] On 27 February 2025 Dr Paterson's surgery advised that he would not operate unless a patient's body mass index (BMI) was under 40.[142]
On 6 March 2025 Dr Gibbes reviewed the Applicant and determined his BMI was 50 (his weight was 160.2 kg).[143] On 6 March 2025 Sr Stephanie Pickard recorded that the Applicant attended the practice and advised that he has been funded a Level 4 care package through My Aged Care.[144]
On 21 March 2025 Mr Davis, counsellor, declared:

[67]

On 2 April 2025 Dr Gibbes authored a letter seeking a review of the Applicant's mental health care plan.[145] On 3 April 2025 the Applicant consulted with Dr Gibbes, reporting that his CTP claim had been rejected but he was pursuing it on the basis of a diagnosis of post-traumatic stress disorder (PTSD); he required a referral to a psychologist to obtain a formal diagnosis.[146] An Ozempic script was provided for weight loss. Dr Gibbes referred the Applicant for psychiatric review with Dr Bhaswati Bhattacharyya at the Aster Clinic[147] and also provided an updated certificate of capacity.[148]
On 6 March 2025 Dr Gibbes wrote to Dr Paterson seeking advice about whether there was "any point in him coming to see you to discuss non-operative interventions?".[149]
On 9 April 2025 the Applicant advised Dr Gibbes that his insurer had reinstated his claim for PTSD and will also fund weekly physiotherapy, massage and chiropractic review every three weeks.[150] The insurer is also arranging an independent psychiatric assessment. On the same day the insurer wrote to Dr Gibbes and the Applicant advising that it would fund physiotherapy, ongoing treatment provided by Dr Gibbes and psychological treatment and, in the future, hydrotherapy.[151] Dr Gibbes wrote to the Applicant's massage therapist, chiropractor and physiotherapist seeking review; she also made similar referrals to other massage and physiotherapy clinics.[152] On 22 April 2025 the insurer wrote to the Applicant advising that it had rejected his request for chiropractic care and massage therapy on the basis that it had concluded it was not reasonable and necessary.[153]
Various blood test and imaging reports are in evidence. A bone densitometry undertaken on 13 September 2023 indicates osteopaenia.[154] A bilateral x-ray of hips and knees and a CT scan of the lumbar spine on 1 March 2024 noted severe osteoarthritis in the right hip and mild to moderate osteoarthritis in the left hip.[155] Moderate osteoarthritis was noted in the left knee. Mild osteoarthritis was noted at the T11-T12, T12-L1, L3-L4, L4-L5 levels and moderate osteoarthritis in the L5-S1 left facet joint and mild in the right. Lumbar spondylosis was noted to be worst at L4-L5, with moderate spinal canal stenosis at L4-L5 with possible compression/irritation of the exiting L4 nerves. A L5-S1 disc bulge narrowing both lateral recesses and bilateral foraminal stenosis with possible compression/irritation of the descending S1 and exiting L5 respectively were also noted. A CT of the lumbar spine dated 20 September 2024 indicated posterior disc bulge and mild to moderate bilateral fact joint arthropathic changes causing mild canal narrowing and mild right exit foraminal narrowing at the L3-L4.[156] Otherwise, the findings were generally consistent with the 1 March 2024 findings.
The Tribunal had the benefit of written submissions and oral testimony from the Applicant. On the 17 April 2025 the Applicant made the following submissions to the Tribunal:[157]

[75]

The Applicant spoke highly of Dr Gibbes, stating that she tries hard to maintain his existing level of functional capacity to move in and around his home. He stated that he has "hardly any capacity" to go outside the home; a cab picks him up about 1.5m outside his front door and drops him to 1m from the entrance of his allied health practitioners' premises.
The Applicant suggested that there were errors throughout the summoned materials. He did not think it significant that he had amended the Housing Pathways - Medical Assessment form as he was simply correcting Dr Gibbes' mistakes and noted that he only has 10-minute appointments with Dr Gibbes with many prescriptions required and so "errors are made"; thus, his capacity to keep her abreast of changes to his functioning is hindered. By way of example, the surgery's scales cannot give an accurate measurement. He consistently weighs himself at the hospital where the scales can weigh up to 300 kgs. Further, he has always provided Dr Gibbes with typed records and her assessment of his mobility capacity was incorrect; at that stage he could only walk 10m and not 20m as stated by Dr Gibbes. He now only has capacity to mobilise a maximum of 4m with two canes or his four-wheel walker.[163] His providing the typed form was simply to provide an update of his declining health and for Dr Gibbes to correct her records accordingly.
The Applicant stated that his weight was incorrectly recorded as 148kg in Dr Gibbes' records however he has not been that weight since 2016 or 2017.[164] Instead, his weight has been consistently 178 to 183 kg since 2020.
The Applicant raised another example of an error in Dr Gibbes' records: he states that he never sought assistance from Ms Goldwater given her wait times and instead sought assistance from Mr Davis. Similarly, he has not had recent orthopaedic review because of the significant wait times in his local area. He recalls a two year wait to be reviewed by Dr Paterson and a 17 month wait for Dr Gray in his local area. He did make an appointment to see Dr Paterson but would have to consult his records about the date. At the conclusion of the hearing the Applicant corrected this statement stating that he did not make an appointment with Dr Paterson as his out-of-pocket costs would be in the vicinity of $306, making it unaffordable. Furthermore, Dr Paterson did not operate in the public system. He is unable to travel to Sydney for orthopaedic review given his physical health conditions.
The Applicant submits that his receipt of a Level 4 home care package is irrelevant. Dr Gibbes is simply attempting to maintain his current functioning. In any event, he submits that the funding available under this package is simply not sufficient to meet his needs.
In response to Dr Gibbes' statement that he will spend money on cigarettes but not weight loss medications the Applicant referred to the decision of National Disability Insurance Agency v Davis[165] whereby any considered treatment has to be affordable. He submits that the cost of the weight loss medications is a minimum of $1,500 to $1,800 per month and he only spends $35 per month on cigarettes over the same period. His cigarettes are only $5 per packet. He has smoked since he was six years of age and the chances of his ceasing smoking is "somewhat remote". He submits that as the cost of weight loss medication is prohibitive, he has never filled a prescription. He rejects the suggestion that he does not prioritise his health. He declared that his first priority each month is to fill his prescriptions.
The Applicant confirmed that he did not file any evidence from his massage therapist, chiropractor and physiotherapist. He explained that he only attended allied health appointments with three practitioners over the last three to four years being Mr Todd Williams, physiotherapist who he sees once a week (not once a fortnight), Mr Ron Moore, massage therapist who he sees once a week and Mr Peter Jordan, chiropractor. He was attending the chiropractor triweekly but increased the frequency to once a fortnight about three months ago because of his curvature of the spine and the treatment assists him in bringing himself into a "more upright standing position". His view is that these practitioners had no relevant evidence to provide the Tribunal. He is not even sure his chiropractor keeps records. His physiotherapist has only made prescriptions for assistive technology. He attends these practitioners to maintain his minimal functionality; without these he would be "completely bedbound 24 hours and I would have to go into an institution". He reported that he has never seen an exercise physiologist.
The Applicant states that he requires bariatric assistive technology which is much more expensive than the same non-bariatric products. He relies on the statement he provided Dr Gibbes in this respect.[166] He stated that these bariatric products were prescribed by his physiotherapist and his GP but have never been "fulfilled". He did not provide evidence of these prescriptions (such as for a mobility scooter or electronic bed lift) because they have not been purchased and, anyway, he did not think it relevant.
The Applicant declared that under his Aged Care Package he is funded for his weekly physiotherapy and massage and fortnightly chiropractic sessions in addition to podiatry every seven weeks. He also receives 5 to 6 hours per week of home help, stating that this is completely inadequate for his needs. Activities undertaken by these carers include toileting, application of cream to his body, cleaning and cooking as well as transporting him to the shops or attending the shops separately for groceries and pet care.
The Applicant stated that he showers when his carers are not in attendance. When they are in attendance they assist him in drying himself after a shower. Under his home care package he was provided with a tower fan to assist in him in drying areas he cannot reach, which includes his genitals. He declared that he does not urinate or defecate in his toilet; instead, he urinates and defecates in his shower apparently because he has hand rails in the shower. He clarified that he lives in "special disability accommodation through public housing" and that though there are grab rails situated next to his toilet he cannot sit down and get up. He went on to state that even though his accommodation "is set up for a person in a wheelchair" he cannot prepare meals because when cooking he has had "spatter" in his eyes and face, even though he has worn "safety goggles" because he has injured himself too many times. He is funded for Lite n' Easy (a meal delivery service), however he only gets 17 weeks of meals per annum. He has prioritised allied health therapy over meal delivery as this all comes from the same funding pool. He only eats Weetbix when Lite n' Easy meals are not available because that is all he can afford.
The Applicant confirmed that he was referred by GIO for an independent psychiatric assessment. However, this did not occur because he does not have video conferencing facilities and the assessor would not conduct the assessment by telephone. He stated that there is a general (not psychiatric) assessment with a senior medical assessment assessor with the Personal Injury Commission of NSW now booked on 17 April 2026.
The Applicant was invited to speak to Dr Gibbes' opinion that he is more interested in his illness than in improving his health and mobility. The Applicant stated that he is frustrated by the lack of available services in the Central Coast of NSW. He does not have the funds to seek review with an occupational therapist and refused to attend one engaged by the NDIS. He would only agree to attend one that would report directly to his GP.
The Tribunal had the benefit of Dr Gibbes' oral testimony. Dr Gibbes confirmed that she authored the 24 June 2021 letter.[167] Dr Gibbes opined that when she stated that even if the Applicant was to have bariatric surgery, lose weight and undergo hip and knee replacements, the improvements would not be seen for 10 years she was referring to the entire management plan period from starting weight loss to surgery. Later in the hearing she stated that it was "all estimations" and that "feasibly it could be a little shorter" but agreed that it would "take many years". She agreed that each joint replacement surgery would take 12 months to see the full benefits.
Dr Gibbes confirmed that she has prescribed weight loss medications. When she first prescribed this medication she recalled that it would be about $180 per month; she would not have prescribed it had the Applicant advised he could not afford it. She confirmed that she now understood that weight loss medications were not followed through with because of the financial cost. Dr Gibbes confirmed that she was aware that from 1 December 2025 Ozempic was funded through the Pharmaceutical Benefits Scheme (PBS), but the Applicant would not qualify as his glucose levels do not meet the PBS criteria. Therefore, he could only be prescribed Wegovy at a cost of $250 per month.
Dr Gibbes also confirmed that she continues to advocate for the Applicant to seek dietary advice, undertake exercise, and consider meal replacement and medication as outlined in her GP management plans. Dr Gibbes confirmed that the Applicant was referred to, but has not consulted with, an exercise physiologist.
In response to questioning about whether he would be a good candidate for bariatric surgery Dr Gibbes stated that she did not know, particularly given his smoking and he would need a risk versus benefit discussion with a bariatric surgeon. When questioned about her experience in working with morbidly obese people and using weight loss medication with a VLCD, Dr Gibbes stated that the patient must be invested and work hard for the outcome otherwise the interventions do not work. She accepted that bariatric surgery is an expensive procedure if undertaken through the private system. She understands that there is only one hospital that provides publicly funded bariatric surgery, however the wait times are "ridiculously long", being up to 24 months for a first appointment.
Dr Gibbes confirmed that the purpose of the referral to an orthopaedic surgeon was to seek advice on the management of the Applicant's osteoarthritis in light of the fact that he is not currently a candidate for surgery. This would include whether there were other procedures or management plans that could relieve some of the Applicant's symptoms or improve joint functionality.
In response to questioning about whether his conditions are fully treated and stabilised given she has made various recommendations that the Applicant does not follow, Dr Gibbes stated that this proposition was "correct". Having said that, she was of the view that it would be a "long process" for the Applicant to make meaningful changes; she would recommend lifestyle changes, cessation of smoking, dietary changes such as a VLCD with the assistance from a dietitian or meal delivery service. She would also recommend exercise physiology to increase his activity which is very limited because of his disability. She would also revisit bariatric surgery and weight loss medications so as to enable him to have joint replacement surgery. She confirmed her recollection that she has referred the Applicant to a dietician, but he had failed to lose weight with dietetic advice but could not recall the specific reasons for this. She also recalled referring the Applicant to a 'Get Fit for Surgery' program and he did attend.
In response to the Applicant's assertion that, given the length of time it would take to lose weight and undergo orthopaedic surgery, he must accept that his condition was permanent Dr Gibbes replied, "I didn't say that".
In response to questioning about the file note dated 7 March 2024, Dr Gibbes stated that she has made many recommendations to the Applicant over the years that she believes would improve his health and mobility. Instead, her view is that the Applicant invests time in forms and letters to dispute various things.
Dr Gibbes confirmed that she gave no authority for her signature to be affixed to the typed Housing Pathways - Medical Assessment document,[168] nor did she agree to amend the record to reflect the Applicant could only mobilise 10m as this did not reflect her opinion at that time. Dr Gibbes also confirmed that the provision of a typed form had been done on several occasions by the Applicant, not just in the Housing Pathways - Medical Assessment form in evidence. However, she was not happy with the Applicant inserting her signature into any documents, including this form. Since that time, he has not inserted her signature into any forms or other documents. She had no recollection of the Applicant raising that the summonsed material contained errors.
The Respondent asserts that the Applicant's physical and psychosocial health impairments have not been adequately treated and therefore do not meet the permanency criteria set down in paragraph 24(1)(b) of the Act.
The Respondent first drew the Tribunal's attention to Dr Gibbes' view that the Applicant required significant intervention to lose weight, including bariatric surgery and weight loss medications.[169] The Respondent submits this is relevant as the Applicant is ineligible for orthopaedic surgery until his BMI is reduced to 40.[170] However, the Applicant has not undergone orthopaedic review to ascertain if there are other options available to him to manage his physical impairment. Furthermore, the Applicant has been referred to, but did not engage with, a pain clinic.[171]
The Respondent also contends that the Applicant's psychosocial disability is also not permanent for the purposes of the Act. The Respondent relies on the Applicant's statement on 21 July 2022 that he was feeling mentally well prior to conflict with his neighbour[172] and on the DASS in evidence dated 14 September 2023,[173] 17 January 2024[174] and 28 November 2024[175] and where the Applicant's depression scores fell within the normal and moderate range.
The Respondent asserts that there is no evidence that the Applicant's physical and psychosocial health impairments result in substantially reduced functional impairment as required by paragraph 24(1)(c) of the Act.
The Respondent submits that because the Applicant has refused any independent assessment of his abilities and needs there is no independent evidence regarding what he can and cannot do. The Respondent asserts that the Applicant's evidence regarding his functional capacity should not be accepted unless it is independently corroborated by Dr Gibbes or is otherwise apparent from the medical records before the Tribunal.
The Respondent also relied on the fact that the Applicant was approved for a home care package Level 4 on or before 22 June 2023.[176] Therefore, it submits that the Applicant is not likely to require NDIS supports for his lifetime as required by paragraph 24(1)(e) of the Act.

[76]

I am tasked with determining whether the CEO, by her delegate, correctly concluded that the Applicant does not meet the disability or early intervention requirements for access to the NDIS based on the available material before me.[177]
I note that the Applicant advised that his legal name is John William George Edward Andrews however he is usually generally known as William or Liam. The Respondent raised no objection to accepting that references made to William or Liam in the documentary evidence or by Dr Gibbes in her oral testimony are references to the Applicant. I accept that this is so.
In conducting this review I must reach a state of positive satisfaction in relation to each specific criteria set down in subsections 24(1) and 25(1) of the Act.[178] It is well established that though the Applicant nor the Respondent bear any formal onus of proof, it is for the Applicant to discharge the practical onus of adducing evidence to persuade the Tribunal that each criteria is satisfied. It is self-evident that when a person seeking access to the Scheme does not provide evidence and information sufficient to meet the relevant statutory requirements, they cannot succeed.[179]
I make the following observations. The Applicant has made various claims regarding his impairments and functional capacity (amongst other issues), both in his written and oral submissions and in the course of his oral testimony. I formed the view that it would be imprudent to accept any self-reporting of the Applicant without corroborating evidence. In my view, his testimony, submissions and even his statements to Dr Gibbes throughout their professional relationship contained material inconsistencies and apparent embellishments regarding his actual impairments and ability to undertake tasks.
A few of these inconsistencies are summarised here. On 6 February 2023 the Applicant asserted that he could only mobilise 10m, whereas at the same time Dr Gibbes refused to amend her report on this basis as she was satisfied that he was able to mobilise up to 20m.[180] In the same report he stated that he used a wheelchair, whereas Dr Gibbes referred to this as a likely near future need. On another occasion, he advised Dr Gibbes that he had fallen and was unable to get up for five days, which she did not accept as a truthful account given his lack of associated injuries.[181] On 21 August 2025 he declared that he had attended his post office box on 6 August 2025 and there was no mail awaiting collection, yet tracking advice indicates that the relevant documents were awaiting his collection from 4 August 2025.
At hearing he gave an implausible account of his reasons for not cooking; apparently even when he wears safety goggles, he burns his eyes cooking at his low kitchen bench. His oral testimony at hearing contradicted his written submissions (at paragraph 120) regarding his capacity to undertake daily tasks. By way of example, he testified that he does shower without carer support and that he can dry parts of his body without assistance and uses assistive technology (with varying success) to dry areas of his body that he cannot reach. In contrast, in his written submissions he stated that he has a complete inability to bathe/clean himself or towel dry himself after bathing.
Given my view that the Applicant was prone to overstate his incapacities and difficulties in performing tasks and so was not credible or reliable, I do not accept his uncorroborated testimony.

[88]

The authorities make it abundantly clear that the focus of fact-finding on review must relate to a person's impairments, otherwise a decision-maker may fall into error.[188]
At internal review the delegate of the CEO was satisfied that the Applicant had a disability attributable to a physical impairment as a result of osteoarthritis and morbid obesity and a psychiatric impairment arising from his depression.[189] The review officer was not satisfied that there were disabilities attributable to impairments arising from his conditions of diabetes, plantar fasciitis and hypertension.
At a directions hearing on 17 April 2025 the Applicant explicitly confirmed that he was seeking access to the Scheme on the basis of impairments arising from osteoarthritis and depression.[190] It was understood that the Applicant did not seek access to the Scheme on the basis of impairments arising from his conditions of Type 2 diabetes, plantar fasciitis and hypertension.
The Respondent does not dispute that the Applicant has a disability attributable to a physical impairment as a result of osteoarthritis of the spine, hips and knees.[191] The Respondent also accepts that the Applicant has a disability attributable to a psychosocial impairment as a result of depression.[192] The medical evidence before me supports such findings.
It is apparent that the Applicant conceptualises his morbid obesity as an impairment arising from his osteoarthritis rather than a separate medical condition from which impairments arise. The Applicant's Statement of Facts and Contentions in Reply dated 28 November 2025 refers to his weight increasing from 88kg in around 2013 or 2014 to 124kg in 2017 and to 183kg by 2022 and (then reducing to) 178.8kg in November 2025[193] due to his "mobility and pain".
The medical evidence is equivocal. It is not clear whether it was the Applicant's osteoarthritis that caused his morbid obesity or lifestyle factors or a combination of both.
The Respondent contends that the Applicant's morbid obesity is not an impairment within the meaning of paragraph 24(1)(a) of the Act.[194] The Respondent relies on the decision of Schwass and National Disability Insurance Agency,[195] which considered whether morbid obesity is an impairment for the purposes of the Scheme. In that decision DP Humphries concluded that morbid obesity is not an impairment, reasoning that there is no evidence that a diagnosis of morbid obesity entails a loss of, or damage to, a bodily function. Rather, the term morbid obesity is simply a medical description attaching to a person when their BMI falls within a particular range.[196]
In contrast, in Pomeroy and National Disability Insurance Agency[197] Member Bygrave accepted that though a diagnosis of morbid obesity simply describes a person's BMI, nevertheless morbid obesity was an impairment because it substantially reduced physical functioning in the domains of mobility and self-care.[198]
I accept that the term morbid obesity is a descriptor attached to those who have a BMI of 30 and over. The International Classification of Functioning, Disability and Health[199] refers to functions of the digestive, metabolic and endocrine system as including functions of maintaining appropriate body weight, including maintenance of an acceptable BMI.[200] It is evident that the Applicant has not been able to maintain an acceptable BMI for many years.
I am satisfied that the medical evidence before me establishes that the Applicant's morbid obesity gives rise to, or exacerbates his existing, physical impairments that (as will be developed further below) impact on his capacity to undertake mobility and self-care activities. I am persuaded that in this case the Applicant's morbid obesity does cause loss of, or damage to, his physical functioning.
I am satisfied that the Applicant has physical and psychosocial impairments attributable to the health conditions of osteoarthritis, morbid obesity and depression, so satisfying paragraph 24(1)(a) of the Act.
I next considered the issue of permanency.

[92]

Therefore, the Tribunal must be satisfied that there are no treatments that may remedy the impairment. Mortimer J went on to explain that 'remedy' means something approaching a removal or cure of the impairment.[202]
I have already set down the relevant Access Rules at paragraph 29.
Davis established that, as they appear in Rule 5.4, the word 'known' means a treatment which can be identified by an Australian medical professional as suitable for a person's particular impairment, that the word 'appropriate' means a treatment which has a capacity to 'remedy' the impairment and is suitable for the particular individual to undergo and the word 'available' means available to a particular individual[203] and should be understood as directed at what treatments an Applicant can, in reality, access.[204]
The Respondent contends that the permanency criteria as set down in paragraph 24(1)(b) of the Act is not met in respect to the Applicant's physical and psychosocial impairments.
Dr Gibbes' clear testimony is that weight loss medications and/or bariatric surgery are likely to remedy the Applicant's physical impairments arising from his morbid obesity. I make no findings as to the efficacy of weight loss medications and bariatric surgery but do accept that as a recipient of a disability support pension the Applicant does not have the financial means to undertake such treatments. I accept Dr Gibbes' unchallenged evidence that as a public patient to secure an appointment to ascertain if the Applicant is a good candidate for bariatric surgery would take some years. I am satisfied that these treatments to address his impairments arising from his morbid obesity are not available to him as required by Rule 5.4.
However, these are not the only means by which the Applicant can achieve weight loss. As stated by Dr Gibbes the Applicant can (and has, with limited success) adhere to a VLCD such as OPTIFAST or through his Aged Care Package (Lite n' Easy). Furthermore, he is eligible for Medicare funded exercise physiology sessions. No doubt a similar referral could be made to a dietician. There is no evidence before me that the Applicant has engaged with an exercise physiologist, though a referral was made by his general practitioner. He has not consulted a dietician since some time before July 2016. Dr Gibbes' unequivocal evidence is that a reduction in the Applicant's weight will have a significantly positive effect on his physical impairments. In light of this I cannot be satisfied there are no known, available and appropriate evidence-based clinical treatments that are likely to remedy the Applicant's physical impairments arising from his morbid obesity.[205]
I am also not satisfied that the Applicant's physical impairments arising from his osteoarthritis are also permanent. The Applicant has not undergone orthopaedic review since 2016. I accept that the Applicant cannot undergo joint replacement surgery given his BMI. Whilst I also accept that the condition is degenerative in nature, Dr Gibbes has sought specialist advice in respect of whether there are any non-surgical interventions that may relieve some of the Applicant's symptoms or improve joint functionality.
The Applicant did not attend an orthopaedic review despite this being recommended. The Applicant contends that he cannot afford to consult with an orthopaedic surgeon. I am not persuaded that (unsubstantiated) out of pocket costs of about $300 for orthopaedic review establishes that the cost is prohibitive so as to constitute an inability to access the treatment, particularly when taking into account the Applicant is in receipt of disability support pension, engages in significant discretionary spending, lives in social housing and is in receipt of an Aged Care package.
As to the Applicant's psychosocial impairment, I am also not satisfied that it is permanent. It is evident that following the Applicant's diagnosis of depression in 2016 there was remission in his depression symptoms for a prolonged period, commencing some time after Dr De Toffol's report. He is not being treated, either pharmacologically or by way of therapy for the condition. The DASS assessments in evidence indicate that his depression symptoms were well controlled until about January 2024 which coincided with environmental factors (conflict with his neighbour and a later motor vehicle accident) which saw his depression symptoms move into the moderate range. I am not satisfied that this psychosocial condition can accurately be described as enduring and so is not permanent for the purposes of paragraph 24(1)(b) of the Act.
Having determined that the Applicant's impairments arising from his morbid obesity, osteoarthritis and depression are not permanent for the purposes of the Act, I am not required to consider the remaining elements of section 24(1).
In the alternative, and in the event that my conclusion on permanency is incorrect, I have proceeded to consider whether the Applicant's impairments do result in substantially reduced functional capacity for the purposes of paragraph 24(1)(c) of the Act.

[109]

62. ...leaving aside Rule 5.8, the word "substantially" has tended to be defined in Tribunal level decisions in accordance with the relevant ordinary meaning of the word "substantial" which is "considerable", which it has been held, means that there is a "significant threshold" to be met. In my respectful opinion these attempts to define the term "substantially" using synonyms is circular. The Agency's operational policy does not assist because it explains the concept in accordance with Rule 5.8 only. > > 63. Part 7 of the Becoming a Participant Rules provides, relevantly, in Rule 7.2, that the CEO may specify in operational guidelines assessment tools that may be used for the purposes of deciding whether a person meets the disability requirements or the early intervention requirements. To date, no assessment tools have been specified pursuant to that Rule. However, for present purposes, it is notable that Rule 7.5 provides that any such tool, if it were to be specified in operational guidelines must (emphasis added) "have reference to areas of activity and social and economic participation identified in the World Health Organisation International Classification of Function, Disability and Health as in force from time to time". This would appear to evince a legislative intention that the terms and concepts that concern the assessment of whether a prospective participant meets the access requirements for the NDIS should be interpreted and applied in conformity with the framework of the ICF. > > 64. The WHO has developed the "World Health Organisation Disability Assessment Schedule" (WHODAS 2.0) to provide a standardised method for measuring health and disability under the framework of the ICF. That assessment tool is frequently utilised by practitioners who conduct assessments of prospective participants and participants and who appear as witnesses in this jurisdiction. For present purposes I note that WHODAS 2.0 assesses the "degree of difficulty" a person experiences in doing specified activities of daily living in terms of "increased effort", experience of "discomfort or pain", "slowness" and "changes in the way the person does the activity" (the difficulty factors) according to a five-point scale which is "none" ("1"), "mild"("2"), "moderate"("3"), "severe" ("4") and "Extreme or cannot do" ("5") (the difficulty ratings). For present purposes I note that "moderate" refers to an approximate 25-50% reduced functional capacity to perform and activity and "severe" refers to an approximate greater than 50% reduced functional capacity to perform the activity. In my opinion this analytical framework is helpful in giving meaning to the concept of substantially reduced function. In my view, "substantial" should be understood as connoting a degree of difficulty in performing a task that is more than "moderate", and "reduced" should be understood as being in one of the four ways specified by the difficulty factors.

[116]

In Madelaine the Tribunal determined that the social interaction activity was directed principally at a personal skills need to interact socially and only marginally about opportunities to exercise those skills.[235] In Foster 2025, SM French referred to the tasks and actions including basic interpersonal interactions, complex interpersonal interactions and other particular interpersonal relationships clusters.[236]
I understand from the material before me that the Applicant lives alone and has no immediate family members living in Australia (his children live overseas) and he has been estranged from his brother since 1994.[237] I accept that he has limited informal social supports. However, this goes to his ability to perform in this social domain, rather than his capacity.
As I understand the Applicant's written submissions, he contends that his depression and pain symptoms result in a lack of social interaction. Even if I were to accept the Applicant's self-reporting (which I do not) this is not sufficient to support a broader finding that the Applicant has a substantially reduced functional impairment in this domain.
Dr De Toffol's report, though authored nearly 10 years ago, stated that the Applicant did have a marked "diminished interest of pleasure in all activities most of the day". On 2 September 2023 the Applicant wrote to Dr Gibbes stating that the conflict with his neighbour made him "feel that I'm withdrawing from social contact".[238] In a GP mental health plan dated 28 November 2024 Dr Gibbes noted that the Applicant's risks and co-morbidities included, "social isolation, chronic pain / Supported by aged carers, but limited other supports".[239]
The Applicant's goals outlined in his insurance recovery plan, in respect to his PTSD diagnosis, include being able to "go out to socialise" and return to social activities such as "mens shed, shopping, going out for a meal, advocacy for disability rights".[240] This suggests that prior to the October 2024 motor vehicle accident the Applicant was engaging in social activities with others and that his depression did not prohibit him from doing so.
There is evidence that he has experienced conflictual relationships with his neighbours and previous aged care providers, but without more information about the context and the Applicant's contribution (if any) to the conflict, this is not sufficient to establish that he has substantially reduced functional capacity or inability to undertake social activities. The evidence is clear that the Applicant has been able to establish and maintain a long-term professional relationship with Dr Gibbes, one where he is able to respectfully disagree and advocate to have his needs met whilst maintaining that relationship. He has also apparently maintained long-term professional relationships with his massage therapist, physiotherapist and chiropractor. This indicates that the Applicant can act in a socially appropriate manner and can generally regulate his emotions and impulses in accordance with social rules and conventions.
The Applicant's behaviour in directions hearings before me indicates that he can experience difficulties interacting in a socially and contextually appropriate manner and regulating his emotions when his expressed preferences are not acceded to. However, no such difficulties were apparent at the substantive hearing. Again, given the context of the proceedings this is not sufficient to persuade me that he generally cannot maintain and manage his interactions with others in a contextually and socially appropriate manner.
The My Aged Care plans before me, apparently completed by the Applicant, indicate that he receives some carer support to engage with the community.[241] There is no evidence to suggest that he is unable to appropriately navigate and maintain these relationships.
I am not persuaded that the evidence before me gives rise to a finding that the deeming provisions set down in Rule 5.8 are satisfied in respect of activities requiring social interaction. Furthermore, I am not otherwise satisfied that the Applicant has a substantially reduced functional capacity in the life activity area of social interaction.
I conclude that the Applicant's impairments arising from his osteoarthritis, morbid obesity and depression do not result in a substantially reduced functional capacity to undertake social interaction activities. Subparagraph 24(1)(c)(ii) is not satisfied.

[119]

103. For the purposes of the deeming provision, the Guideline describes functional capacity to mobilise in these terms: > > ... the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs; > > 104. Once again, the threshold requirements to achieve functional capacity in relation to this activity are relatively modest. A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking; a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as movable, not fixed, free to move. > > 105.The use of the phrase move around...to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letter box to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park-the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport. > > 106.No particular distance is specified in the Guideline as defining this level of mobility, but it seems reasonable to suggest that a person who can travel 50m by herself has the capacity to do the things referred to in the Guideline. That view would be consistent with the decisions of the Tribunal in Holmes and MHZQ. > > 107.Ms Madelaine appears to be able to reach the thresholds implied by both the Guideline and the dictionary. She is able to get into and out of her bed and into and out of a chair, albeit that some chairs are easier to use than others. She is able to move about her home, using her furniture for support. She can move about independently around her property and in the community using a walking stick. Significantly, her ability to self-mobilise around the Pambula shops is achieved by being able to drive herself there. In this sense, it can be concluded that Ms Madelaine is able to participate effectively and completely in the activity of mobilising herself, as that concept is defined in the Rules and the Guideline.

[120]

I have already referred to the fact that I am significantly hindered in my ability to assess the Applicant's functional capacity given the limited independent medical or allied health evidence before me regarding the Applicant's mobility.
In her 4 July 2016 letter Dr Gibbes referred to worsening mobility and that the Applicant now requires a walking aid.[244] The more contemporary medical evidence from Dr Gibbes is that the Applicant mobilises with assistive technology with either two walking sticks or a four-wheel walker. I accept that this is so. I am satisfied that the walking sticks and four-wheel walker fall within the category of commonly used items for the purposes of Rule 5.8(a) of the Access Rules. The Applicant testified that he moves around his home with the use of his walking canes. Apparently, he cannot use his four-wheel walker in his home as it is too large to navigate through doorways.
The Applicant insists that at the time that Dr Gibbes provided this opinion he was in fact only able to walk 10m with assistive technology and that at the time of hearing this had reduced to 4m. Whatever the distance, this, by itself, is not sufficient to give rise to a finding that the Applicant has a substantially reduced functional capacity to participate effectively in this activity.
I accept Dr Gibbes' evidence that the Applicant is not able to manage steps and stairs, notwithstanding the fact that in his typed version of the same report the Applicant declared that he could manage one to two steps. I prefer Dr Gibbes' assessment of the Applicant's capacity in this regard.
Dr Gibbes' consultation notes refer to falls reported by the Applicant. By 9 November 2023 Dr Gibbes was of the view that the Applicant had a very unsteady gait with two canes and that he was a high falls risk.[245] I do not accept the Applicant's self-reporting of his falls however I do accept Dr Gibbes' assessment that he is a falls risk. However, I do not consider that this risk is such to contribute to finding that he has a substantially reduced functional capacity to undertake mobility.
It is apparent that the Applicant was referred to an occupational therapist for mobility aides on 18 August 2022 and the Applicant testified that he had received "prescriptions" from his treating physiotherapist regarding bariatric mobility assistive technology devices. By 19 September 2024 the Applicant reported that his mobility deteriorated further and he was apparently investigating wheelchair options.[246] He did not tender any documentation to support his assertions on this point, apparently because he did not consider it relevant. Whilst there is reference to a wheelchair in some of the notes, I prefer Dr Gibbes' evidence on this point and so am not persuaded that the Applicant currently relies on this form of assistive technology, notwithstanding the fact that he may well require it in the future.
At hearing the Applicant stated his motorised scooter was "now at the wrecking yard...in the backyard, completely rusted away, broken and worn out. I need a new one". This suggests that at least recently he mobilised outside his home without the benefit of a motorised scooter. The Applicant's reports regarding his weekly attendance at physiotherapy and massage therapy satisfied me that his mobility does not prevent him from accessing the community. I accept that when attending these appointments he is transported by car to within a few metres of his allied health professionals' premises. It is unclear whether he drives himself or is transported to these appointments by a carer or by taxi.
Dr Gibbes' consultation notes from face-to-face consultations make no reference to the Applicant experiencing difficulties in moving to and from lying down positions. The Applicant submits that he cannot transfer in and out of bed without assistive technology. Again, there is no corroborating medical evidence or allied health reports to support the Applicant's assertions. In fact, I am not persuaded that he has been in fact provided such assistive technology. His testimony at hearing was that he was prescribed a bariatric bed and lifter but had not purchased it. This would suggest that currently he independently transfers to and from his bed without the benefit of assistive technology.
I note that Dr Gibbes' notes from face-to-face consultations make no reference to the Applicant being unable to move from sitting to standing positions. However, she did state that the Applicant "struggles" to get up from a chair.[247] In care plans dated 23 February 2023 and 22 June 2023 the Applicant reports that he "struggles with transfers".[248] I accept Dr Gibbes' description that the Applicant experiences difficulty in moving from a sitting to standing position.
The Applicant claims that that he cannot use the toilet in his home because he cannot complete such a transfer, even with grabrails in place. I do not accept his self-report for the following reasons. In his written submissions the Applicant stated that he cannot sit for more than 20 minutes at a time without experiencing excruciating pain. Given that the Applicant lives alone and advised that he receives only six hours of carer support per week, this suggests that the Applicant must complete chair transfers without assistance from others from time to time. He also transfers in and out of cars when attending medical and allied health appointments. In the absence of corroborating evidence before me to substantiate the Applicant's assertion that he cannot move from a sitting to standing position when toileting I do not accept that this is the case. Having said that, I accept Dr Gibbes' statement that he has difficulty in sitting in public transport seats.[249]
Overall, the material before me is not sufficient to satisfy me that the difficulties the Applicant experiences in transferring to and from a seated position can be described as substantial.
At hearing the Applicant declined an opportunity for a break stating that he has "been actually moving about in different seating positions" though this was apparently after he had doubled his pain medications. I had initially thought that the Applicant was only able to readjust his seating positions because of the misuse of his medication. However, he later stated that his "body now rejects Targin, which is an opioid...But my body is now starting to reject that, and Dr Gibbes has been trying different treatments. We're using opioids as a patch, which had virtually no effect on me...It's my body that rejects medications so you know...The only way I can alleviate the pain is by lying flat on a bed for most of the day, every day". I am satisfied that the Applicant can change and maintain his body position even when not misusing his pain medications.
It is also highly probable given his weight and osteoarthritis in his knees that he is unable to kneel, however there is no evidence before me regarding his capacity to undertake this movement. I also accept that he would experience impaired capacity to perform strenuous cleaning and gardening tasks. Again, there is insufficient evidence before me to reach a conclusion that the degree of difficulty is substantial. There is no evidence to suggest that he cannot shift his body's centre of gravity.
The task remains to assess the degree to which the person can participate in the activity as a whole.[250] I conclude that the Applicant mobilises around his home and in the community and completes transfers (albeit with difficulty). He can change his body position when seated, can walk with assistive technology and can move from standing to lying down and standing to sitting. It follows that the deeming provision is not enlivened.
I am not satisfied that the Applicant's functional capacity to participate in the tasks comprising the activity of mobility is substantially reduced. It follows that the Applicant's impairments arising from his osteoarthritis, morbid obesity and depression do not result in substantially reduced functional capacity in all the activities involving mobility as required by subparagraph 24(1)(c)(iv) of the Act.

[121]

The Access Guidelines indicate that the bundle of tasks connected to self-care include personal care, hygiene (including showering and toileting), grooming, eating, drinking, health and dressing.
It is apparent that the Applicant manages all his medical and health-related appointments and administers his own medication. I find accordingly.
As I have already noted the Applicant testified that he does not use the toilet in his home and instead urinates and defecates in his shower, apparently because his shower has grabrails and a hose that allows him to wash his urine and faeces down the drain. I accept that, due to the Applicant's morbid obesity, he is unable to reach his perianal area and so it would be necessary for him to shower after he defecates if a carer cannot provide him with assistance (though neither he nor Dr Gibbes expressly stated this was the case). Having said that, the Applicant was unable to satisfactorily explain why he does not urinate and defecate in the toilet given there are grabrails in situ and it is apparent that he can and does move from a sitting to a standing position (albeit with difficulty).
The evidence suggests that the Applicant can independently undertake grooming tasks. The Applicant testified that he showers without the assistance of carers. The evidence suggests that the Applicant requires assistance in placing topical cream on his legs, between his toes and to his perianal area.[251] The Applicant declares that he can dress himself, except for long pants or socks and he wears slip-on footwear. I accept that this is so. However, I do not accept, as he submits in his written submissions, that he is unable to dry himself completely. The Applicant also testified that he is only unable to dry his external genitalia after a shower and I accept that this more accurately reflects his functional capacity.
There is no evidence to suggest that the Applicant has reported difficulties with oral hygiene tasks, shaving or feeding himself. He states he does not cook because his kitchen is set up for a wheelchair user and food splashes in his eyes, causing burns. As I have already noted, his evidence on this point was not plausible. In any event, his evidence was not that his impairments prevent him from undertaking cooking, rather it is his home environment. He states that he can prepare simple meals (Weetbix). I acknowledge that he receives assistance in undertaking household cleaning tasks, shopping and gardening.
I am not persuaded that the deeming provisions set down in Rule 5.8 are satisfied in respect of activities requiring self-care. The Applicant is able to undertake a range of tasks in respect of his personal hygiene, grooming, eating and drinking. He is also able to independently manage his health care.
On balance, I conclude that the Applicant's impairments arising from his osteoarthritis, morbid obesity and depression do not result in substantially reduced functional capacity in activities involving self-care as required by subparagraph 24(1)(c)(v) of the Act.

Legislation Cited (7)

Appeals Tribunal Act 1975

Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024

Disability Insurance Scheme (Becoming a Participant) Rules 2016

Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024

Review Tribunal Act 2024

Disability Insurance Scheme Act 2013

in/viewdoc/au/legis/cth/num_act/artatpn1a2024807/)[Administrative Review Tribunal (Consequential and Transitional Provisions No](/cgi-bin/viewdoc/au/legis/cth/num_act/artatpn1a2024807/index.html) [1) Act 2024

Cases Cited (23)

Andrews and National Disability Insurance Agency (NDIS) [2026] ARTA 302 (6 March 2026)

Andrews and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 473

Andrews and CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 2661

Andrews v National Disability Insurance Agency [2025] FCA 272 (1 April 2025)

Andrews and National Disability Insurance Agency [2021] AATA 5289 (28 September 2021)

Andrews and National Disability Insurance Agency [2022] AATA 1532 (9 June 2022)

Andrews and National Disability Insurance Agency [2022] AATA 4399 (20 December 2022)

Beezley v Repatriation Commission [2015] FCAFC 165

Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607

Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577

Foster and National Disability Insurance Agency [2025] ARTA 718

HPSC and National Disability Insurance Agency [2021] AATA 727

LPSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1563

Madelaine and National Disability Insurance Agency [2020] AATA 4025

Mulligan v National Disability Insurance Agency [2015] FCA 544

National Disability Insurance Agency v Davis [2022] FCA 1002

National Disability Insurance Agency v Foster [2023] FCAFC 11

National Disability Insurance Agency v Lampard [2025] FCAFC 139

National Disability Insurance Agency v Sutherland [2026] FCA 3

Pomeroy and National Disability Insurance Agency [2018] AATA 387

Rooney and National Disability Insurance Agency [2021] AATA 3523

Schwass and National Disability Insurance Agency [2019] AATA 28

Timofticiuc and National Disability Insurance Agency [2021] AATA 3015

Andrews and National Disability Insurance Agency (NDIS) [2026] ARTA 302 (6 March 2026)

At a glance

Court

Decision date

Source

Judgment (186 paragraphs)

Legislation Cited (7)

Cases Cited (23)

Andrews and National Disability Insurance Agency (NDIS) [2026] ARTA 302 (6 March 2026)