1. I have considered the following evidence in this independent review:

(a) A Joint Tender Bundle filed on 8 April 2025. I note that this contained:

**_(i) A Statement of Lived Experience (SoLE) filed by the Applicant, dated 16 November 2023.

(ii) The Applicant's response to the Agency's Statement of Facts, Issues and Contentions (SoFIC), undated.

(iii) A statement made by the Applicant dated 15 January 2025.

(iv) Two reports prepared by Associate Professor D Cordato, Neurologist, dated 22 December 2023 and 18 April 2024, the latter in response to targeted questions from the Agency.

(v) A report prepared by Dr S Holliday, General Practitioner, dated 18 April 2024, in response to targeted questions from the Agency, together with a selection of his medical records concerning the Applicant of various dates.

(vi) A report prepared by Ms J Kinnear, Physiotherapist, dated 23 December 2023.

_**

(vii) The Agency's SoFIC, dated 18 February 2025.

(viii) A report prepared by Mr E Mate, Occupational Therapist, dated 22 July 2024, together with the Agency's letter of instructions to him dated 25 June 2024.

(ix) A supplementary report prepared by Mr E Mate, Occupational Therapist, dated 27 March 2025, together with the Agency's letter of instructions to him dated 28 February 2025.

(i) Opening and closing statements, and oral evidence given under affirmation by the Applicant on 15 and 17 April 2025.

(ii) Oral evidence given under affirmation by Dr Holliday on 16 April 2025.

(iii) Oral evidence given under affirmation by Ms J Kinnear on 16 April 2025.

(iv) Oral evidence given under affirmation by Associate Professor Cordato on 17 April 2025.

(v) Opening and closing statements made by counsel for the Agency on 15 and 17 April 2025.

(vi) Oral evidence given under affirmation by Mr E Mate on 17 April 2025.

1. On 3 October 2024, the NDIS Act was amended by the measures contained in the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (the amending Act). Schedule 1, items 19 to 27 introduced changes to the disability and early intervention requirements. However, by operation of item 126 of the schedule those changes apply only to an access request made after 3 October 2024. The applicant made her access request on 14 April 2023, so these changes are inapplicable in this case. Item 126 of the amending Act also provides that the NDIS Rules as they were in force prior to 3 October 2024 continue to apply to an access request made prior to that date. This independent review will therefore apply the disability and early intervention requirements as they stood prior to 3 October 2024.

1. The NDIS is a Commonwealth program of social assistance which has as its target group persons with disability who are Australian residents under the age of 65 who experience substantially reduced functional capacity to perform essential tasks in one or more designated life activity areas due to one or more permanent intellectual, cognitive, neurological, sensory, or physical impairments or one or more permanent impairments to which a psychosocial disability is attributable. [4] This is a limited sub-category of the total population of persons with disability in Australia.[5] In her second reading speech on the introduction of the National Disability Insurance Scheme Bill 2012 (Cth), the then Prime Minister described this target group, in short form, as those persons who live with "significant and permanent" disability.[6] In its Disability Care and Support report, which provided the foundation for the development of the NDIS, the Productivity Commission referred to this group as "Tier 3" of the total population group to be addressed by the scheme, being people with significant disability who are assessed as requiring individually tailored funded supports.[7]
2. The task of this independent review is to determine if the Applicant is a person with disability for whom the NDIS was intended. That involves the application of the access criteria contained in the Act and the Rules, some of which specify not only a criterion but also a threshold or level which must be satisfied before the criterion can be met.[8]
3. Section 21(1) provides that a prospective participant will meet the access criteria for the NDIS if the CEO is 'satisfied' that each of the access criteria is met. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically.[9] Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing or pointing to material before the Tribunal that can persuade it that each of the access criteria are met.[10]
4. To be eligible for access the NDIS, a prospective participant must satisfy an age requirement, a residence requirement, and either a disability requirement or early intervention requirement.[11] The broad purpose of these access criteria is to impose some restrictions on who can access funding for supports available under the NDIS.[12] These requirements are specified in the NDIS Act and the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) (the Becoming a Participant Rules). The Agency has also developed operational policy to assist in its administration of the NDIS. While these guidelines are not formally binding on the Tribunal, as the Act and the Rules are, they represent government policy which should be applied unless there is a cogent reason not to do so.[13] The operational policy applicable in this case is called "Applying to the NDIS".[14]

1. The age requirement for access to the NDIS is found in s 22 of the NDIS Act and Part 3 of the Becoming a Participant Rules. A prospective participant will meet the age requirement if they were aged under 65 when the access request was made to the CEO. The temporal focus for this eligibility criteria is the time the access request was made. Provided the prospective participant was under the age of 65 when the access request was made, it will not matter that they may be older than 65 when the access request is decided.
2. In this case, the applicant was just under 64 years and 2 months old when she made her access request. Her age at that time was verifiable by reference to her Centrelink records, which the Agency did with her consent.[15] The CEO submits on this basis that the Applicant meets the age requirement for access to the NDIS. I am also satisfied on this basis that the Applicant meets this requirement.
3. As at the date of the hearing (15-17 April 2025) the Applicant is now just under 66 years and 3 months old. While this does not mean that she ceases to meet the age requirement for access to the NDIS for the reason I have stated, it is potentially relevant to the issue of whether she is likely to require supports under the NDIS for her lifetime. However, that issue is not reached in this case for the reasons set out following.

1. The residence requirement for access to the NDIS is found in s 23 of the NDIS Act and Part 4 of the Becoming a Participant Rules. Relevantly to the Applicant's circumstances, a person will meet the residence requirement if they reside in Australia and are an Australian citizen. In this case, there is no issue that the Applicant lives in Australia and that she is an Australian citizen. At the time her access request was made this was verifiable by reference to her Centrelink records, which the Agency did with her consent.[16]
2. Unlike the age requirement, the temporal focus of the residence requirement is the date of the Tribunal's decision.[17] In other words, it is necessary for the Applicant to continue to reside in Australia and be an Australian citizen when the Tribunal determines the outcome of this independent review. But in this respect, there is no suggestion that the Applicant's circumstances have changed. I am satisfied on the evidence before me that as at the date of the hearing the Applicant continues to reside in Australia and remains an Australian citizen. The CEO has not contended otherwise.

1. The disability requirement for access to the NDIS is found in s 24 of the Act and Part 5 of the Becoming a Participant Rules.
2. Section 24 (as in force prior to 3 October 2024) provided:

24 Disability requirements > > (1) A person meets the disability requirements if:

(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

(b) the impairment or impairments are, or are likely to be, permanent; and

(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self-care;

(vi) Self-management; and

(d) the impairment or impairments affect the person's capacity for social and economic participation; and

(e) the person is likely to require 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 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 supports under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.

1. Rules 5.4 to 5.7 deal with the question of when an impairment is permanent or likely to be permanent for the disability requirement. Those Rules provide:

When is an impairment permanent or likely to be permanent for the disability requirements? > > 5.4 An impairment is, or is likely to be, permanent ... only if there are no known available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. > > 5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve. > > 5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated. > > 5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

2. Rule 5.8 deals with the question of when an impairment results in a substantially reduced functional capacity to undertake a specified activity. That rule provides:

When does an impairment result in substantially reduced functional capacity to undertake relevant activities > > 5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities - communication, social interaction, learning, mobility, self-care or self-management ... - if its result is that:

(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participant in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

1. As will be observed from s 24(1) of the Act, five criteria must be satisfied for the disability requirement to be met. These criteria are expressed to be conjunctive in nature, meaning that if any one criterion is not satisfied, the disability requirement cannot be met. Having regard to that fact, one way of conceptualising these criteria is as a series of gateways along a linear pathway. The criterion specified in s 24(1)(a) must be satisfied before the gate opens to consideration of the criteria specified in s 24(1)(b), and that criterion must be satisfied for the gate to open consideration of the criterion specified in s 24(1)(c), and so on. If a gateway to consideration of a subsequent criterion does not open, there is no utility in consideration of that or any other subsequent criteria.

s 24(1)(a): Does the Applicant have a disability?

1. Section 24(1)(a) requires the Applicant to establish that she has a 'disability' that is attributable to one or more intellectual, cognitive, neurological or physical impairments or one or more impairments to which a psychosocial disability is attributable.
2. In the context of s 24(1)(a), and Chapter 3 of the NDIS Act more generally,[18] the term "disability" has a specific meaning, being a functional outcome that is attributable to specified categories of impairment. The concept of impairment is distinct from the concept of 'disability', and from a diagnosed health condition. Care needs to be taken not to conflate these separate concepts or use them interchangeably. Failure to maintain this conceptual distinction may lead to a misapplication of the access provisions.[19]
3. The term 'impairment' is not defined in the NDIS Act. However, the Agency's operational guidelines define it to mean "a loss of or damage to your body's function". I note that this conceptualisation of impairment for the purposes of s 24(1) was specifically approved by the Court in Davis.[20] That definition is a simple rendering of the definition of impairment[21] used in the application of the International Classification of Functioning Disability and Health (ICF), which is "a problem of body function or structure such as a significant deviation or loss as compared with typical or expected function or structure". [22]
4. Specifically with respect to s 24(1)(a), as the Court observed in Davis, it is necessary to identify and describe with precision the impairment to which a prospective participant's disability is attributable, because the access criteria contained in ss 24(1)(b) to (d) require evaluation of the permanency and impact of that impairment on the prospective participant's functional capacity and social and economic participation.[23] In this respect, as I have explained in DQKZ,[24] (and following) the ICF is extrinsic material to which the Tribunal may have regard in ascertaining with objective precision the impairment of body structure or function which is at issue in each case for the purposes of s 24. That is because it is a standardised classification system, which has as one of its primary objectives the provision of a standard language and conceptual framework in relation to human function.[25]
5. The evidence in this case is that the applicant lives with the following health conditions and sought access to the NDIS on these bases:
   1. Acquired Brain Injury resulting from Stoke and encephalitis in infancy as complications from a Measles infection, and Stroke due a subarachnoid haemorrhage from a ruptured intracranial aneurysm in adulthood,
   2. Epilepsy,
   3. Osteoporosis and Osteoarthritis in the Cervical, Thoracic and Lumbar spine with vertebral compression fractures from T4 to T6,
   4. Scoliosis,
   5. Migraine, and
   6. Anxiety disorder.
6. The CEO did not challenge the existence of these diagnoses. I am also satisfied that the Applicant lives with these conditions having regard to the documentary and oral evidence provided by Dr Holliday and Associate Professor Cordato.
7. However, the issue to be determined for the purposes of s 24(1)(a) is what impairments, if any, are associated with these conditions. Not unusually in this jurisdiction, the losses or variations to body function and structure that are derivative of these conditions is not always squarely addressed by the evidence and must be distilled.
8. Within the domain of body structure, in her statements of lived experience and oral evidence that Applicant described a variation to the structure of her brain due to neurosurgery to reduce the impact of her epilepsy and aneurysms, and variations to the structure of her vertebral column due to scoliosis, disc prolapses, osteoporosis and osteoarthritis.
9. Within the domain of body function, in her statements of lived experience and oral evidence the Applicant described poor short-term memory, difficulties with concentration, difficulties expressing herself and understanding others, and experiencing frustration and anger with herself about these things, which she attributed to her brain injury. She described episodic dizziness, tingling and a degree of disassociation which she attributed to Epilepsy. She also described head, neck, and upper and lower back neuropathic pain, which is exacerbated by activity.
10. The Applicant also reported these impairments to Mr Mate at the time of his assessment.
11. Dr Holliday's documentary and oral evidence deposed to short-term memory loss which he opines is also causal of confusion and communication difficulty, flustering, disorientation and learning difficulty. Associate Professor Cordato deposed to the Applicant's acquired brain injury and epilepsy having a significant impact on her cognitive function, including in relation to short-term memory, planning and organisation, particularly with respect to complex tasks. Both Dr Holliday and Associate Professor Cordato deposed to the applicant living with significant neuropathic pain, muscle spasms and restricted mobility in the cervical, thoracic and lumbar spinal areas due to her scoliosis, disc prolapses, osteoporosis and osteoarthritis. Ms Kinnear's report and oral evidence deposed to chronic spinal pain and muscle spasm due to scoliosis.
12. The CEO did not contest any of this evidence and submits that the Tribunal ought to be satisfied that the Applicant meets the s 24(1)(a) disability requirement because of these impairments.
13. I am also satisfied that this is the case and I make the following findings as to impairment based in the evidence before me.
14. At the level of body function, I find that the applicant lives with:
    1. Impaired specific mental functions,[26] being:
       1. attention functions,[27] specifically, the function of sustaining attention,[28]
       2. memory functions,[29] specifically, the function of short-term memory,[30]
       3. emotional functions, specifically, regulation of emotion[31] and range of emotion,[32]
       4. higher-level cognitive functions,[33] specifically the functions of organisation and planning,[34] and problem-solving,[35] and
       5. functions of language,[36] specifically the functions of reception of language,[37] and expression of language[38]
    2. Impaired sensory functions and pain, being:
       1. sensations associated with hearing and vestibular functions,[39] and
       2. sensation of pain,[40] specifically pain in the head and neck,[41] and pain in the back,[42]
15. I find that the impairments set out in paragraph 36(i) are cognitive impairments within the meaning of s 24(1)(a). I don't understand this finding to be controversial.
16. There is however an issue as to how the impairments set out in paragraph 36(ii) are to be conceptualised for the purposes of s 24(1)(a). The Agency's operational policy appears to limit the meaning of "sensory" impairment to "how you see or hear". That would not appear to include vestibular function or pain. In closing oral submissions, if I understood her correctly, counsel for the CEO submitted that pain should not be understood as an impairment at all for the purposes of s 24(1)(a), but as a condition that is potentially "secondary" to one or more of the categories of impairment set out there.
17. The vestibular system is a sensory system within the inner ear. It controls balance, spatial orientation and movement coordination. It is not directly related to hearing, but in my opinion, it is nevertheless properly characterised as a sensory function for the purposes of s 24(1)(a). I base that opinion on the categorisation of vestibular function as a sensory function within the framework of the ICF.
18. I do not accept the CEO's submission that pain is not to be regarded as an impairment for the purposes of s 24(1)(a). Pain constitutes a loss or variation to typical body function (typical body function does not involve persistent experience of pain). Pain is a sensory experience produced by the nervous system usually in response to damage to body structure. Within the framework of the ICF pain is categorised with other sensory functions, including sight and hearing. I adopt that categorisation here even though the Agency's operational policy appears to limit sensory impairment to sight and hearing impairment. The alternative would be to find, at least in this case, that the Applicant's experience of pain is a neurological impairment because it is produced by her nervous system. In either case it is an impairment for the purposes of s 24(1)(a).
19. At the level of body structure, I find that the applicant lives with:
    1. Impaired structures of the nervous system,[43] being the structure of the brain,[44] and spinal cord and related structures,[45] specifically compression of the spinal nerves,[46]
    2. Impaired structures related to movement,[47] being:
       1. to the structure of the head and neck region, specifically to the joints[48] and muscles[49] of the head and neck,
       2. to the structure of the trunk,[50] specifically to the structure of the vertebral column,[51] and the muscles of the trunk.[52]
20. I find the impairments set out at paragraph 41(i) are neurological impairments for the purposes of s 24(1)(a). I find that the impairments set out at paragraph 41(ii) are physical impairments for the purposes of s 24(1)(a). I do not understand either of these conclusions to be controversial.

1. As I have explained above, both the original decision-maker and the internal review delegate of the CEO decided that the Applicant did not meet the access criteria for the NDIS because her impairments, as determined, were not permanent. That was because the delegates were not satisfied on the evidence before them that the Applicant had exhausted all available treatment options in relation to those impairments.
2. The relevant passage from the internal review decision is set out following:

To effectively assess the functional impact of an applicant's impairment, the NDIA must have sufficient evidence that demonstrates that the impairment has been optimally treated and stabilised. Evidence must outline that an applicant's baseline level of functioning has been established before an accurate determination of their functional capacity can be made regarding their eligibility for the NDIS. > > With regard to your cognitive impairment, I do not discount the evidence of Dr Simon Holliday who advises that you have engaged in a number of neurological procedures which, to date, have not fully relieved your impairments. However, from the information provided I am unable to determine that there are no further treatments or interventions that may be available which could improve symptoms and functional capacity. > > Without specialist evidence confirming that all available treatment options have been explored, completed, and that your impairment has been optimally treated and stabilised, your cognitive impairment cannot meet this criterion. > > With regards to your neurological and physical impairments, the evidence received does not include a detailed history for your impairments. Detailed evidence of your treatment history should include a timeline of treatments undertaken, types and frequency of treatments, the duration and outcome of treatments, including a report from your Treating Practitioner/Specialist about the outcomes. > > The evidence does not conclude that all recommended treatment options have been explored and completed. Therefore, based on the provided evidence, the permanency of your neurological and physical impairments cannot be determined at this time. > > Future applications would benefit from a thorough treatment history for your impairments indicating the outcomes of all medical treatment, surgical intervention (if applicable), specialist reviews, and specialist prognosis. The evidence would need to show that all readily available and evidence based treatments that would be likely to remedy your impairments have been completed, become unavailable, or no longer deemed medically viable by the relevant treating professionals/specialists.

3. Having regard to s 24(1)(b) of the Act, and Rule 5.4 of the Becoming a Participant Rules, the questions that the Tribunal must pose and answer to determine if the Applicant's impairments are, or likely to be, permanent, are:

(a) Are there any known, available and appropriate evidence-based medical or other treatments that would be likely to remedy the impairments? and

(b) Do any of the Applicant's impairments require medical treatment or review before a determination can be made about whether the impairments are permanent or likely to be permanent?

1. It is important to maintain cognizance that s 24(1)(b) and Rule 5.4 are concerned with the Applicant's impairments, not her health conditions per se. Nevertheless, the issue of what treatment the Applicant has obtained for her health conditions will be relevant in determining if the impairments that are derivative of those conditions are permanent.
2. In Davis the Court held that the correct meaning of the word "permanent" in s 24(1)(b) is "enduring" because this meaning best reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[53] In its reasoning towards that conclusion, the Court rejected a submission that the word should be understood as meaning "irreversible", stating at [58]:
   1. The concept of "irreversible" is unhelpful, and a distraction from the context and purpose of the legislation. It prompts the question - 'reversible by what?' That is, how far does an (sic) NDIS applicant need to go to attempt to 'reverse' their impairment? And what does 'reversible' mean? Is it a question of degree? Fifty percent reversible? Thirty percent reversible? Does irreversible mean 'cannot be improved'? Of course, many impairments covered by the NDIS - such as psychiatric impairments - can be 'improved' (in terms of the way an individual experiences the impairment) by therapy and medication. Are they 'reversed' if the medication is very successful? Obviously, the answer is they are not. The impairment remains, but the symptoms or manifestations may be controlled or somewhat ameliorated.
3. The Court in Davis also considered the meaning of the phrase "known, available and appropriate" and held at [137] to [139] that:

1. As a general observation, in my opinion each of the adjectives must be construed as referring to circumstances in Australia. In r 5.4, the word "known" connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment. The word "appropriate" connotes a treatment which has a capacity to "remedy" the impairment and is suitable for the particular individual concerned to undergo. The capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, or their personal circumstances in terms of where they live and who they live with, and who cares for them. 2. The word "available" should be understood as meaning available to a particular individual. If it were to be construed as meaning "exists in Australia", then it would have little different work to do from the word "known". The Macquarie Dictionary defines "available" as meaning:

adjective 1. suitable or ready for use; at hand; of use or service ...

4. Assuming as I do the validity of r 5.4, and on the premise any given treatment is "known" and "appropriate" as I have explained those terms, in my opinion the adjective "available" should be understood as directed at what treatments an individual can, in reality, access. Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.
5. At the opening of the hearing, counsel for the CEO advised that the CEO was now satisfied on the material before the Tribunal that the Applicant's cognitive impairments resulting from her Acquired Brain Injury are, or are likely to be, permanent. She advised that the CEO was also now satisfied that the Applicant's neurological impairments resulting from her epilepsy are, or are likely to be, permanent. However, she advised that the CEO continued not to accept that the Applicant's physical impairments resulting from her osteoporosis and scoliosis are, or are likely to be, permanent. In this respect the Agency submitted that while the Applicant has undertaken some treatment with respect to her physical impairments, the Tribunal could not be satisfied on the material before it that all known, appropriate and available treatments have been undertaken.
6. In her closing submissions, counsel for the CEO submitted that it was open to the Tribunal on the evidence as it stood at that time to find that all the Applicant's impairments are, or are likely to be, permanent. However, she advised that she was not instructed to concede the point.
7. I do not understand the CEO's unwillingness to accept the Applicant's physical impairments are permanent. For the reasons set out following that is plainly the case, and the CEO's failure to accept this has caused the Applicant unnecessary distress, as it carries with it the implication of some self-neglect.[54] As I have noted above, neither party to the proceeding bears any formal onus of proof. The legal principle that 'she who asserts must prove' is therefore not strictly apposite in this proceeding. Nevertheless, s 56(1) of the ART Act, relevantly, imposes an obligation on the CEO to use her best endeavours to assist the Tribunal to make the correct decision. Therefore, where she puts a statutory criterion to be satisfied in issue, she bears a practical onus of establishing reasonable grounds for doing so. The Tribunal is not assisted by the mere assertion that the statutory criterion is not satisfied. It needs to know why that is said to be the case, relevantly, by reference to the specific treatment or treatments the CEO contends should have been attempted by the Applicant but have not been. Without knowing what these treatments are, the Tribunal is unable to consider, as it is required to do, whether these treatments are 'known, appropriate and available' or if further assessment is required before an impairment could be considered permanent. The Applicant is, moreover, left in the procedurally unfair position of not knowing what, specifically, is the case she must answer.
8. I note the following evidence in relation to the permanence of the Applicant's impairments:

1. In Part A of Section 2 of the Applicant's Access Request Form[55] submitted to the Agency on 24 April 2023 Dr Holliday opined with respect to the Applicant's Acquired Brain Injury (which he stated was the Applicant's "main disability") that this was acquired at age 3 post a Measles infection, that this condition was not currently being treated, but had been treated in the past (September 1989, July 1991, 2005 and 2007) via neurological procedures which had been unsuccessful, and which had produced further neurological damage, 2. In Part F of that Form[56] Dr Holliday inserted a "Patient Health Summary" which details a list of 12 then current medications the Applicant was prescribed and a history of medical events and interventions from May 1959 to April 2022. Relevantly, this refers to neurosurgery for Epilepsy in 1991 and 1994, a Craniotomy to treat an aneurysm of an Internal Carotid Artery (ICA) in March 2005, and attempted coiling to address an ICA aneurysm in November 2005. The summary also notes that the Applicant was first diagnosed with Epilepsy in 1965, with an Anxiety Disorder in 2006, Migraine in 2007, and osteoporosis in August 2007. Neuropathic pain is also reported in October 2007, 3. In the "Supporting Evidence" attachment to the Access Request Form, Dr Holliday adds to the above stating that the Applicant has had Epilepsy since 1965 and that this is a lifelong condition for which she has been prescribed multiple medications and has undergone a Temporal Lobectomy. He also states that the Applicant has additional impairments, which are stated as Migraine, Neuropathic pain, lumber disc prolapses and osteoporosis, 4. Two reports dated 24 November 2006 and 13 April 2007 to Dr Holliday from Associate Professor M Stoodley of the Department of Neurosurgery at the Prince of Wales Hospital which provide information about investigations and treatment provided in relation the Applicant's ICA aneurysms. No further treatments are recommended in those reports, 5. Two reports dated 22 December 2023 and 6 September 2024 to Dr Holliday from Associate Professor Cordato. In summary, those reports contain the following information and opinion: 1. The Applicant has been a patient of Associate Professor Cordato for a period exceeding 22 years, 2. The Applicant's medical diagnoses consist of: "measles infection in infancy resulting in stroke and encephalitis"; "chronic epilepsy complicating her measles infection with refractory epilepsy that required 2 epilepsy surgical operations in 1989 and 1991 at Prince Henry Hospital Sydney"; "stroke due to a subarachnoid haemorrhage from a ruptured intracranial aneurysm that was clipped by Professor Stoodley at Prince of Wales Hospital Randwick in 2005"; "osteoporosis with vertebral fractures from T4-6 causing chronic pain in the spine"; "chronic scoliosis also causing chronic pain in the spine"; "chronic migraine"; and "chronic anxiety disorder", 3. The opinion that the conditions set out above are all "permanent and life-long conditions" in relation to which the Applicant has "undertaken multiple different treatments", that there are "no additional treatments that are likely [to] significantly improve her functional capacity" and that she has "received maximal medical therapy for her conditions". Her current treatments "are aimed at maintaining her current level of functioning and preventing her from having further deterioration", 4. An account of treatment undertaken and current medications, which includes historical brain surgery, current regular physiotherapy to help with spinal pain and to optimise motor function, and the current prescription of medication for her chronic plain, chronic epilepsy and chronic migraine disorder. 6. A report dated 23 December 2023 written by Ms Kinnear. In summary, this report contains the following information and opinion: 1. The Applicant has been a patient since 2007 during which time Ms Kinnear has provided the Applicant with physiotherapy treatment for her musculoskeletal issues to the head, neck and spine, 2. The Applicant has a complex history and chronic spinal pain due to scoliosis and receives maintenance treatment of physiotherapy to assist in reducing the impact of the muscle spasm on her neurological condition, 3. The Applicant's condition is not considered curable and maintenance treatment is the only relief she finds helpful, 4. The Applicant is very compliant with treatment and after-treatment instruction, 5. The Applicant's condition is very easily irritated so careful attention needs to be paid to the duration and frequency of treatment, 6. The Applicant is on a fixed income so is unable to afford regular physiotherapy as is required for her condition. Gaps in treatment exacerbate her condition. 7. A report dated 18 April 2024 to the Agency from Dr Holliday in response to targeted questions. In summary, this report contains the following information and opinion: 1. A history of referral since 2006 to physiotherapists, an orthotist, dentist, and several neurologists in relation to musculoskeletal and neuropathic pain, 2. The Applicant has diligently acted on all referrals made. Dr Holliday retains on file 35 report letters from physiotherapists and neurologists to which the Applicant has been referred since 2006, 3. The Applicant has complied with instructions and advice provided by those clinicians to whom she has been referred, 4. The Applicant's "multi-morbidities intersect preventing more than partial and fluctuating improvements", 5. The Applicant receives regular Botulinum toxin injections from a neurologist for muscle relaxation to inhibit pain. This provides recurring temporary relief but does not change the underlying condition,[57] 6. The Applicant has recently been prescribed a new injectable medication, Galcanezumab, which has provided additional relief for migraine and neuropathic pain, 7. The Applicant's conditions are unlikely to improve in the near or long-term, 8. In summary, Dr Holliday opines:

Ms Burrows has had problems from scoliosis, disc prolapses and osteoarthritis of her back and neck and her osteoporosis associated with compression fractures of vertebra T4-6. I would regard these as meeting the permanency criteria. Specifically: they will not be cured; they may fluctuate in intensity; they will return; there is no need for further medical treatment or review to demonstrate their permanency; and finally, the impairment is degenerative, related to ageing and multiple injuries, all of which will not be significantly improved by medical or other treatment to my best estimation.

1. Mr Mate's report, dated 22 July 2024. In his assessment, Mr Mate accepted that the Applicant lives with various functional limitations which he described, in summary, as follows:

Analysis and interpretation of the medical reports indicate that due to the effects of her medical conditions, Ms Burrows experiences difficulties in undertaking tasks that involve:

• Strenuous activity requiring exertion
• Moderate, heavy or forceful manual handling, including lifting, carrying, pushing and pulling
• Repetitive or sustained use of the upper limbs above shoulder height in an outstretched or overhead manner due to increased load on the lumber spine
• Frequent bending, twisting, jarring or jolting of the lumbar spine
• Prolonged sitting, standing or walking
• Frequent traversing rough/uneven ground, inclines or steps
• Unsupported squatting or kneeling
• Cognitive endurance, particularly in relation to memory, concentration and attention
• Attending to complex or concurrent tasks.[58]

Mr Mate recommends, based on his analysis of the documentary evidence provided to him from Dr Holliday that the Applicant would benefit from ongoing physiotherapy, neurology and podiatry,[59] to reduce the intensity and severity of her symptoms.[60]

1. The Applicant's Statement[61] and her response to the Agency's Statement of Facts, Issues and Contentions.[62] These documents provide a lived experience perspective on her diagnoses, medical events and her history of treatments and their life impact.

1. As I have noted above, I also had the benefit of hearing oral evidence from the Applicant, Dr Holliday, Associate Professor Cordato, Ms Kinnear and Mr Mate during the hearing. This oral evidence was consistent with the documentary evidence.
2. In summary, Dr Holliday and Associate Professor Cordato confirmed their opinion:
   1. that each of the Applicant's health conditions, and the impairments that are derivative of those conditions, are permanent,
   2. that all current treatment is directed at reducing the impact of those conditions via symptom relief rather than cure, and that symptom relief is partial and temporary only,
   3. that no improvement in these conditions is foreseeable, and
   4. that the Applicant is adherent to all prescribed medications and other interventions, and has attended to all referrals for further investigation and assessment of her conditions.
3. In summary, Ms Kinnear confirmed her opinion that the Applicant's physical and neurological impairments could only be relieved with regular physiotherapy and could not be cured. She noted that the Applicant is on a limited, fixed income and is only able to obtain 5 physiotherapy sessions per year under Medicare which falls far short of what she reasonably needs to maintain function and alleviate pain.
4. In summary, Mr Mate's evidence was to the effect that he was able to recommend some adaptive behavioural strategies and assistive technologies that are likely to improve the Applicant's function in specified areas, but these strategies would not have the effect of curing or removing her impairments.
5. I note that counsel for the CEO did not put anything to the contrary of this evidence to any witness or to the Applicant herself.
6. Having regard to this evidence I make the following findings in relation to the permanency of the Applicant's impairments:
   1. the cognitive impairments set out in paragraph 36(i) above are permanent. They are derivative of a permanent brain injury for which the Applicant has received all available treatment that has potential to cure this condition. The impact of these impairments may be reduced to some extent using assistive technologies and by the adoption of adaptive behavioural strategies, but this will not reverse these impairments in the sense described by the Court in Davis,
   2. the sensory (or neurological) impairments set out in paragraph 36(ii) above are permanent. The impaired vestibular function is derivative of Epilepsy which is a permanent condition in relation to which the Applicant has received in the past, and currently receives, all recommended medical treatment. Current treatment ameliorates the impact of Epilepsy on the Applicant, but it does not cure that condition or reverse its effects in the sense described by the Court in Davis. Similarly, the Applicant's pain is derivative of her impaired structures of the brain, spinal cord, and other body structures related to movement. The evidence is emphatic that the Applicant has been prescribed, has accepted, and has been provided with, all available medical treatment for these impairments, and that there is no further treatment that has the potential to cure or reverse those impairments. I accept that evidence. The Applicant is prescribed injectable agents and other medication and receives some physiotherapy to provide some relief from her pain symptoms, but the evidence is emphatic that this treatment only provides partial and temporary relief from pain. It does not cure or reverse the Applicant's pain in the sense described in Davis.
   3. the neurological impairments set out in paragraph 41(i) above are permanent for the reasons I have stated in paragraph 58(ii) above.
   4. the physical impairments set out in paragraph 41(ii) above are permanent for the reasons I have also stated in paragraph 58(ii) above.

s 24(1)(c) Do the Applicant's impairments result in substantially reduced functional capacity in a specified life activity area?

1. Several preliminary observations should be made in relation to the operation of s 24(1)(c) and Rule 5.8.
2. First, having regard to the linear structure of s 24(1), the s 24(1)(c) inquiry is limited to those permanent impairments that have been established in the ss 24(1)(a) and (b) enquiries. It is not open to me to consider if a prospective participant has substantially reduced functional capacity in a s 24(1)(c) designated life activity area except insofar as this is derivative of an impairment that has been found to be permanent. However, in this case, I have found all the impairments the Applicant contends for to be permanent.
3. Second, unlike the overall structure of s 24(1), the internal structure of s 24(1)(c) is not conjunctive. That is, it is only necessary for a prospective applicant to establish that they experience substantially reduced functional capacity in one of the six designated life activity areas to satisfy this criterion. It is not necessary that they establish substantially reduced functional capacity in every, or more than one, life activity area.[63] In this respect, I am not required to be satisfied that the Applicant's impairment is serious, or more serious than anybody else's. Rather, I need only be satisfied that she has substantially reduced functional capacity in one of the designated life activity areas.[64]
4. Third, 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",[65] which it has been held, means that there is a "significant threshold" to be met.[66] 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.
5. 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.
6. 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.[67] 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.[68] 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.[69]
7. Fourth, Rule 5.8 specifies three circumstances in which a prospective participant will be deemed to satisfy the requirement of "substantially reduced functional capacity", but the Rule is not exhaustive of the circumstances in which that may be found. In my opinion, the Rule should be understood as a deeming provision that enables the s 24(1)(c) enquiry to be truncated in clear cases that fall within that Rule. Therefore the statutory task is to determine, first, if the prospective participant falls into any of the categories of persons deemed by Rule 5.8 to have substantially reduced functional capacity having regard to the life activity area. If not, it is, second, to determine in accordance with the Act if the person otherwise has substantially reduced functional capacity in any of these life activity areas.[70]
8. The three deeming provisions set out in Rule 5.8, paragraphs (a) to (c), are expressed disjunctively. That is, it is only necessary for one of those circumstances to be established for a prospective participant to be deemed to have substantially reduced function in an activity area.
9. The Court in Foster held that the term "effectively and completely" in paragraph (a) is to be read as referring to the activity area as a whole, and not as referring to isolated tasks within that activity area.[71] It also observed that the use of the disjunctive "or" between those words means that only one standard need be reached, not both.[72] It rejected a submission that the term "completely" as an adverb to "participate" is to be given a literal meaning consistent with the terms "wholly" or "perfectly", because it would result in an absurd outcome, being an impossible bar for anyone to achieve.[73] I am bound by those conclusions. The Court also said Foster "[i]n the overall legislative scheme, the adverb "completely" appears redundant ...". However, I do not understand this to be a concluded opinion that is binding upon me. Nevertheless, having regard to the status of the Court relative to this Tribunal, it is an inconclusive observation that I must carefully consider.
10. It does not appear that the Court in Foster was taken to the descriptions of the concepts of "participation" and "activity" that operate within the framework of the ICF. The related definitions that operate for the purpose of WHODAS 2.0 (as to which see following) are:

Activity > > In the International Classification of Functioning, Disability and Health (ICF) the term "activity: is used in the broadest sense to capture the execution of a task or action by an individual at any level of complexity .... > > Activity limitation > > Difficulties an individual may have in executing activities. An activity limitation encompasses all of the ways in which the execution of the activity may be affected: for example, doing the activity with pain or discomfort; too slowly or quickly; or at the right time or place; awkwardly or otherwise not in the manner expected. Activity limitations may range from a slight to severe deviation (in terms of quality or quantity) in doing the activity, in a manner or to the extent that is expected of people without the health condition. > > Participation > > A person's involvement in a life situation. Represents the societal perspective of functioning. > > Participation restrictions > > Problems an individual may experience in involvement in life situations. Determined by comparing an individual's participation to that which is expected of an individual without disability in that culture or society.[74]

11. Having regard to this conceptual framework, it appears to me that the words "effectively" and "completely" have complementary but separate work to do for the purposes of Rule 5.8(a). That is because the Rule refers to each of the six s 24(1)(c) activity areas, and the bundles of tasks that constitute each of those area. It is apposite to assess a prospective participant's functional capacity with respect to some such tasks, such as the tasks associated with receptive and expressive language in the communication activity area, for example, in terms of "effectiveness", being whether the prospective participant has the functional capacity to execute those tasks "so as to achieve the intended or expected result" (as the Court held that term should be understood in Foster[75]). Whereas a prospective participant's functional capacity to execute other tasks, such as the tasks associated with getting in and out of bed or a chair in the mobility activity area, are better assessed in terms of their ability to "complete" these tasks. In either case, the objective measure is not one of "perfection", it is the expected functional capacity of a person without the prospective participant's impairments to be involved in a life situation. That is a normative standard, not an unreal one.
12. Fifth, s 24(1)(c) requires that I assess with a relatively high degree of objective precision what, from a practical functional perspective, a prospective participant can and cannot do.[76] It is an objective test because it does not depend upon the prospective participant's own assessment of what they can and cannot do, including what they could do before the onset of impairment as compared with what they can do after its onset,[77] although that may be a relevant consideration. This calls for a distinction to be made between the prospective participant's functional capacity (that is, objectively, what they can do) and the prospective participant's functional performance (that is, what they do, including but not limited to what they choose to do).[78]
13. Sixth, consistent with the ICF, the assessment of a prospective participant's functional capacity is based upon the "naked" person; that is, it seeks to determine the person's capacity without personal assistance or the use of assistive devices.[79] That is the case, except to the extent that this principle is modified by Rule 5.8(a) to require commonly used item of equipment, such as glasses, to be discounted. In my opinion, given that Rule 5.8(a) should be taken to evince a legislative intention, the same approach should be taken in relation to the assessment of functional capacity for the purposes of s 24(1)(c) other than when Rule 5.8 is applicable.
14. It is to be noted for the purposes of Rule 5.8 and otherwise that the relevant Agency operational policy defines the term "assistive technology" in accordance with the World Health Organisation's ICF definition as follows:

Assistive technology is equipment or devices that help you do things you can't do because of your disability. Assistive technology may also help you to do something more easily or safely. Assistive technology will reduce your need for other supports over time. > > This could be small things like non-slip mats, or special knives and forks. It could be big things like wheelchairs and powered adjustable beds. It also could be technology like an app to help you speak to other people if you have a speech impairment. > > Not all equipment or technology you use is assistive technology. Many people use some equipment as part of their lives, for example, a radio to listen to music, or a standard microwave oven to cook food, > > Assistive technology is only the equipment you need because it helps you do things that you normally can't do because of your disability. It includes items that:

• Mean you need less help from others
• Help you do things more safely or easily
• Help you to keep doing the things you need to do
• Allow you to do tasks independently
• Are personalised for you.

1. Seventh, in determining whether a prospective participant experiences substantially reduced functional capacity in a life activity area, the Tribunal must consider the range or bundle of tasks that fall within that activity area, rather than limit itself to consideration of a specific task that falls within that area.[80]
2. However, this necessarily begs a question as to what is the bundle (or scope) of tasks that falls within each life activity area specified in section 24(1)(c). The answer to that question is not without a degree of complexity or controversy in my opinion. However, it appears to me that this is an important question for the Tribunal to resolve, otherwise how can it assess if substantially reduced functional capacity to perform a specific task or tasks is sufficient to constitute substantially reduced functional capacity to perform the activity as a whole, having regard to the suite of tasks that makes up that activity. Unfortunately, this question has not been the subject of explicit examination either at the appellate or Tribunal levels to date.
3. In my opinion, the answer to this question requires a process of statutory construction.
4. The relevant principles of statutory construction are well settled. The starting point in construing a statutory provision is its text, considered in light of its context and purpose.[81] Determination of the purpose of a statutory provision may be based upon an express statement of purpose in the statute itself, inference from its text and structure and where appropriate by reference to extrinsic materials.[82]
5. These principles find partial expression in the Acts Interpretation Act 1901 (Cth) (Interpretation Act). Section 15AA of that Act provides that, in interpreting a provision of an Act, 'the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation. Section 15AB(1) permits material that does not form part of a statute to be considered in interpreting a provision of that statute if the material is capable of assisting in ascertaining the meaning of the provision.
6. Applying these principles, it is to be recognised that s 24(1)(c) is a component of a statutory test, the overall purpose of which is to determine if a prospective participant meets the requirements for access to the NDIS. In this regard, it is an express object of the NDIS Act to "facilitate the development of a nationally consistent approach to access to ...supports for people with disability".[83] In my opinion, fulfilment of this purpose requires that the test operate normatively rather than arbitrarily. It can only do so if the tasks that fall within each activity area for the purposes of s 24(1)(c) are designated and determinate rather than infinitely variate and elastic.
7. What is meant by the terms: "communication", "social interaction", "learning", "mobility", "self-care", and "self-management" is not defined in the Act or Rules. These are ordinary English words, but this is not a case where a literal approach to ascertaining their meaning is appropriate in my opinion. That is because, in the context of the statute, they have a determinate meaning which is necessary for the application of the test of which they are part. This is not to say that these words have a meaning in the statute that is inconsistent with their ordinary meaning, merely that they have a determinate meaning.[84]
8. The Agency's operational policy does give content to these terms by describing each life activity area as follows:

Communicating - how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you. > > Socialising - how you make and keep friends, or interact with the community, ... We also look at your behaviour, and how you cope with feelings and emotions in social situations. > > Learning - how you learn, understand and remember new things, and practice and use new skills. > > Mobility, or moving around - how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs. > > Self-care - personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet. > > Self-management (if older than 6) - how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day to day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.

9. The Court noted in Mulligan by reference to the Revised Explanatory Memorandum for the National Disability Insurance Scheme Bill 2012 (Cth) (the Explanatory Memoranda) that the NDIS Act was preceded by a National Inquiry into Disability Care and Support conducted by the Productivity Commission (Productivity Commission Report).[85] The Court also noted in that case, again by reference to the Explanatory Memoranda, that the purpose of what became s 24, was in part to implement recommendation 3.2 of the Productivity Commission Report, which concerned the target group for the NDIS, or more specifically, how a person is to be assessed to determine if they fall within the target group.[86] The relevant point is that the Productivity Commission recommended that the assessment process be functionally based and focused on ascertaining those persons who have significantly reduced functioning in self-care, communication, mobility or self-management.
10. It is clear from Chapter 7 of the Productivity Commission Report, which concerned the proposed development of NDIS assessment tools that the Commission's approach was substantially based on the ICF. At page 309 in that Chapter specific reference is made to the nine "activities and participation domains" that are incorporated into the ICF, which the Commission noted are:

Communication - communicating by language, signs and symbols, carrying on conversations, and using communication devices and techniques. > > Mobility - walking, running or climbing, changing location or body position, carrying, moving, or manipulating objects, and using various forms of transportation. > > Self-care - attending to one's hygiene, dressing, eating and looking after one's health. > > Domestic life - carrying out everyday tasks such as acquiring necessities (like a place to live and goods and services, preparing meals, caring for household objects and assisting others. > > Interpersonal interactions and relationships - relating with strangers, formal and informal social relationships, family and intimate relationships > > Learning and applying knowledge - learning, applying the knowledge that is learned, thinking, solving problems, and making decisions. > > Community, social and civic life - engaging in community, civil and recreational activities > > General tasks and demands - carrying out single or multiple tasks, organising routines and handling stress > > Major life areas - carrying out responsibilities at home, work or school and conducting economic transactions.

11. Having identified the ICF domains, the Productivity Commission drew the following implication for the development of a NDIS assessment tool:[87]

The ICF is a comprehensive and robust framework not an assessment tool itself. The WHO (which developed the ICF) noted that: > > The ICF is impractical for assessing ad measuring disability in daily practice; therefore, WHO developed the WHO Disability Assessment Schedule (WHODAS 2.0) to address this need (Ustun et al, 2010, p.3) > > The implication is that rather than replicate all elements of the ICF framework, any assessment tool would incorporate the best mix of indicators or relevant domains of need. The preferred assessment tool(s) would still be consistent with the overarching ICF framework.

12. I have already referred to the WHODAS 2.0 assessment tool above. Relevantly to the present discussion it is structured around six activity and participation domains, five of which are concerned with functional capacity in a specified activity, and the other with functional performance relative to participation in society. These domains are described as follows (in summary, as excerpted):[88]

Domain 1: Cognition > > Domain 1 of WHODAS 2.0 asks questions about communication and thinking activities. Specific areas that are assessed include concentrating, remembering, problem solving, learning and communicating > > In the past 30 days, how much difficulty did you have in:

• - Concentrating on doing something for ten minutes?
• - Remembering to do important things?
• - Analysing and finding solutions to problems in day-to-day life?
• - Learning a new task, for example, learning how to get to a new place?
• - Generally understanding what people say?
• - Starting and maintaining a conversation?

Domain 2: Mobility > > Activities discussed in Domain 2 of WHODAS 2.0 include standing, moving around inside the home, getting out of the home and walking a long distance. > > In the past 30 days, how much difficulty did you have in

• - Standing for long periods such as 30 minutes?
• - Standing up from sitting down?
• - Moving around inside your home?
• - Getting out of your home?
• - Walking a long distance such as a kilometre [or equivalent]?

Domain 3: Self-care > > Domain 3 asks about bathing, dressing, eating and staying alone. > > In the past 30 days, how much difficulty did you have in

• - Washing your whole body?
• - Getting dressed? (gathering clothing from storage areas, securing buttons, tying knots etc)
• - Eating? (feeding oneself (cutting food, and getting food or drink from a plate or glass to the mount), swallowing both food and drink, mental or emotional factors that may contribute to difficulty in eating, such as anorexia, bulimia, or depression). This item does not refer to meal preparation. If the respondent uses non-oral feeding (e.g. tube feedings), this question refers to any difficulties experienced in self-administering the non-oral feedings; for example ,setting up and cleaning a feeding pump)
• - Staying by yourself for a few days?

Domain 4: Getting along > > Domain 4 assesses getting along with other people, and difficulties that might be encountered with this due to a health condition. In this context, "people" may be those with whom the respondent is intimate or knows well (e.g. spouse or partner, family members or close friends), or those whom the respondent does not know at all (e.g. strangers). > > In the past 30 days, how much difficulty did you have in

• - Dealing with people you do not know? (interactions with strangers in any situation, such as shop-keepers, service personnel; people from whom one is asking directions)
• - Maintaining a friendship? (includes staying in touch, interacting with friends in customary ways, initiating activities with friends, participating in activities when invited)
• - Getting along with people who are close to you?
• - Making new friends? (includes seeking opportunities to meet new people, following up on invitations to get together; social and communication actions to make contact and to develop a friendship).
• - Sexual activities (refers to sexual intercourse, hugging, kissing, fondling and other intimate or sexual acts)

Domain 5: Life activities > > This domain includes questions about difficulty in day-to-day activities. These activities are those that people do on most days; they include household, work and school activities. > > In the past 30 days, how much difficulty did you have in

• - Taking care of your household responsibilities?(difficulties encountered in maintaining the household and in caring for family members or other people they are close to, including physical needs, emotional needs, financial needs, psychological needs - household responsibilities include managing finances, car and home repairs, caring for the outside area of the home; picking up children from school, helping with homework, disciplining children, upkeep and maintenance of belongings (for those who do not have a stable dwelling place)
• - Doing most important household tasks well?
• - Getting all the household work done that you needed to?
• - Getting your household work done as quickly as needed?
• - Your day-to-day work/school?
• - Doing your most important work/school tasks well?
• - Getting all the work done that you need to do?
• - Getting your work done as quickly as needed?

Domain 6: Participation > > Domain 6 represents a shift from the line of questioning using in the first five domains. In this domain, respondents are asked to consider how other people and the world around them make it difficult for them to take part in society. Here, they are reporting not on their activity limitations but rather on the restrictions they experience from people, laws and other features of the world in which they find themselves > > ...

1. Section 24(1) of the NDIS Act is not a mirror of the Productivity Commission's recommendations, and as I have stated already, no NDIS assessment tool has been developed in accordance with the Productivity Commission's recommendations or otherwise. Care therefore needs to be taken in discerning the meaning of the terms used in s 24(1)(c) by reference to the Productivity Commission's Report and the ICF to which it refers.
2. In my view, in practical terms, this requires me to find the meaning of these terms as far as possible in government policy, leaving aside any inconsistency of that policy with the Act, and using the ICF (and WHODAS 2.0) to give content and specificity to that policy where necessary.
3. Having regard to this I reach the following conclusions as to the "tasks" that make up each of the s 24(1)(c) activity areas based on what is set out in the Agency's Applying to the NDIS operational policy:

Communication (or "communicating" as it is referred to in the policy)

- expressive language tasks (how you speak, write or use sign languages and gestures to express yourself and how others understand you); and

- receptive language tasks (how well you understand people)

Social interaction (or "socialising" as it is referred to in the policy)

- tasks associated with making and keeping friends,

- tasks associated with interacting with other people in the community (who are not friends),

- tasks associated with behavioural and emotional regulation in a social context.

- tasks associated with acquiring knowledge, skills or understanding (how you learn, how you practice and use new skills),

- tasks associated with cognition (how you understand),

- tasks associated with memory (how you remember things).

Mobility (or "mobility and moving around" as it is referred to in the policy)

- tasks associated with moving around within the home,

- tasks associated with moving around within the community (how you get out and about),

- tasks associated with getting in and out of bed, and

- tasks associated with getting in and out of a chair.

- tasks associated with personal care, including personal hygiene and grooming,

- cognitive tasks associated with personal organisation,

- cognitive tasks associated with personal planning,

- cognitive tasks associated with personal decision-making,

- cognitive tasks associated with problem solving, and

- cognitive tasks associated with personal financial management.

1. For present purposes it is relevant to note the high degree of correlation between the statutory language of the s 24(1)(c) activity areas of communication, social interaction, mobility, and self-care, the tasks designated by the operational policy as constituting those activity areas, and the ICF activity domains of communication, interpersonal interactions and relationships, mobility and self-care as these are summarised by the Productivity Commission. There is also a high degree of correlation between the scope and content of the s 24(1)(c)(iii) learning and (vi) self-management activity areas with the ICF learning and applying knowledge domain, although the statutory language is different. That is also true if these s 24(1)(c) activity areas are compared with the WHODAS 2.0 mobility, self-care, and getting along domains. The WHODAS "cognition" domain is an amalgam of the ICF communication and learning and applying knowledge domains and therefore also correlates with the s 24(1)(c) communication and self-management activity areas as the scope and content of those activity areas is designated by the Agency's operational policy.
2. What is most striking for present purposes is that there is no correlation between the statutory language of the s 24(1)(c) activity areas, or the scope and content of the tasks attributed to those areas by the Agency's operational policy, and the "domestic life" and "major life areas" domains of the ICF as described by the Productivity Commission. These ICF domains are included in the WHODAS 2.0 Life activities domain, the content of which does not fall within any of the s 24(1)(c) activity areas either.
3. For the foregoing reasons, I conclude that domestic tasks such as laundry, domestic cleaning, gardening and yard maintenance, as examples, do not fall within any of the s 24(1)(c) activity areas. That conclusion is reached on a straightforward reading of the statutory language of the section which does not refer to a domestic activity area, and the Agency's operational policy, which does not include any reference to the physical tasks associated with domestic activity. In this respect the tasks attributed to self-management by the Agency's operational policy include "day-to-day tasks at home", but limit those tasks to mental or cognitive tasks, not physical ability to do these tasks.
4. This conclusion is reinforced by reference to the Productivity Commission's Report and its analysis and recommended application of the ICF. Having regard to that, the activity areas included in s 24(1)(c), and the scope and content of those activity areas, must be taken to reflect a clear legislative choice.
5. I note that I raised this construction of s 24(1)(c) with counsel for the CEO in closing submissions. She submitted that it is open to me to consider domestic tasks as falling within the self-care and/or self-management activity areas and gave examples of Tribunal decisions where that approach has been taken. I accept first instance Tribunals, confronted with the dilemma of where to attribute domestic tasks, and apparently acting in accordance with an assumption that they must go somewhere, have incorporated them into the mobility, self-care and self-management activity areas. I need look no further than my own prior decisions as examples of that.[89] However, I am unaware of any case where a Tribunal has asked itself the explicit question whether these tasks are to be incorporated into s 24(1)(c) at all.
6. Consistency in administrative decision-making is an important value that is ultimately derivative of the right to equality before the law. In the context of the ART this value is expressed in both the Tribunal's 'fairness' and 'transparency' objectives.[90] It means that applicants with a similar case can expect a similar outcome.
7. However, ultimately, this Tribunal's obligation is to give authentic voice to the legislative scheme and, as an administrative decision-maker, it is not bound by the principle of judicial comity. To be trite, the Tribunal does not aim to be consistently wrong. Where it detects it has been incorrect in the application of a statutory provision, it must be prepared to leave that error behind, just as it would be compelled to do so if corrected on appeal or judicial review. I note that this is not a case where the issue I have identified has been the subject of a decision of the President or a judicial or non-judicial Deputy President of the Tribunal to which I ought properly to defer.[91]
8. In my opinion failure to adopt a disciplined approach to ascertaining the specific scope and content of the s 24(1)(c) activity areas has the potential to lead to arbitrary outcomes between prospective participants. It does not give authentic voice to the legislative scheme of s 24, the appropriateness of which is a matter for Parliament, not this Tribunal. As I have set out above, the Court in Foster made it clear that s 24(1)(c) statutory task is to determine if a prospective applicant experiences substantially reduced capacity in a s 24(1)(c) activity area considered as a whole, rather than in respect of any particular task within that activity area. That necessitates certainty as to what tasks fall within the scope of each activity area so that the test is to be applied normatively rather than arbitrarily.
9. I now turn to consider the Applicant's case for access to the NDIS insofar as it concerns the s 24(1)(c) gateway, bearing in mind the principles I have outlined above.

1. For the reasons I have set out above the bundle of tasks within the communication activity area is limited to tasks associated with expressive and receptive language.
2. The evidence in relation to the Applicant's functional capacity for communication may be summarised as follows:

1. It is not in issue that the Applicant is able to write, speak, read and hear, use a telephone, and communicate in typical ways with her family, friends and familiar service providers. 2. In Part E of the Access Request Form he completed on 20 April 2023 Dr Holliday opines that the Applicant's "impaired short-term memory causes confusion and difficulty communicating or recalling information provided by others",[92] and that she requires "assistance when having to engage with a new service or support, due to issues processing new information",[93] 3. In the Access Request Supporting Evidence Form he completed on 23 June 2023 Dr Holliday opines that the Applicant does require assistance from other persons in relation to communication because:

Due to her brain injury, Judy has impaired short-term memory which causes confusion and difficulty communicating or recalling information provided by others. Judy can become flustered and disorientated, which makes her vulnerable to exploitation by others if not supported during communications. Judy's daughter in law has been providing this support, however she is returning to full time work. Gets expressive dysphasic at times.[94]

1. In his response to the Agency's targeted questions dated 6 September 2024, Associate Professor Cordato opines:

Her communication is affected by her condition. She has difficulty finding words and thoughts to put together to express her needs. This is due to the cognitive damage caused by her past stroke, encephalitis and epilepsy. She would benefit from a support worker or carer accompanying her to shopping and appointments was well as attendance to social events because of the challenges she has in communication.

2. Mr Mate assessed the Applicant to be independent in all tasks within the communication actively area. In this respect he opined:[95]

Ms Burrows is independent in all aspects of expressive communication. She participated appropriately during this assessment and spoke clearly in English. She also has no restrictions to her ability to write or key information to communicate. She confirmed she is able to use phones and read letters. She stated she is not confident with technology and the internet, having not had much use in the past. > > There were no reported or observed deficits in relation to Ms Burrows' receptive communication skills. She demonstrated a clear understanding of all topics discussed during this assessment. > > There were no reported or observed deficits in relation to Ms Burrows' capacity for expressing her needs. She has no barriers in the domain of communication.

3. in her Statement of Lived Experience dated 16 November 2023 the Applicant says with respect to her functional capacity for communication:

I am extremely trouble to navigate with government agencies because I don't understand computer, therefore I have to rely upon hard copies which is really difficult way to communicate.

4. the written materials the Applicant has prepared in support of her case, and her oral evidence and submissions during the hearing.

1. It is not contended that the Applicant is unable to communicate with others without disability related assistive technology, equipment or home modifications. Nor is it contended that the Applicant usually requires assistance in the form of physical assistance, guidance, supervision or prompting to do so. The evidence does establish that the Applicant sometimes requires physical assistance to express herself in writing in electronic communications, and to receive and express information to unfamiliar service providers, but that is not equivalent to her usually requiring physical assistance with expressive and receptive communication within the communication activity area, taken as a whole. Rather, it is evidence that the Applicant sometimes requires assistance with a discrete method of communication, and in a discrete context in which higher level expressive and receptive communication is required. Associate Professor Cordato opined that the Applicant would benefit from physical assistance with communications in social situations, but other than perhaps with respect to new and unfamiliar situations, there I can find no foundation in the evidence for that opinion. Nor is it contended that the Applicant is unable to communicate, even with such supports. Rule 5.8 therefore has no application in this case.
2. The remaining issue is to determine if the Applicant has substantially reduced functional capacity for communication, otherwise than in the circumstances prescribed by Rule 5.8.
3. In this respect I have found that the Applicant has impaired receptive and expressive language function based on her evidence of lived experience about difficulties expressing herself and understanding others, and Dr Holliday's evidence related to the Applicant's propensity to become confused and flustered in communications with others. Dr Holliday also referred to the Applicant having a vulnerability to exploitation by others due to impaired receptive and expressive communication, but no example of that having occurred, or being at risk of occurring, is otherwise to be found in the documentary and oral evidence before me. As I have already set out, earlier in his report Mr Mate accepted the Applicant's self-reported lived experience which he interpreted to include difficulties with cognitive endurance, particularly in relation to memory, concentration and attention. I accept that these impairments have the potential to impact on the Applicant's functional capacity for expressive and receptive communication.
4. I have had the benefit of directly observing the Applicant's functional capacity for communication by reference to the documentary materials she has prepared for the hearing and in the oral presentation of her case, which included responding to a sustained period of questioning by counsel for the CEO. I conclude based on the written material that the Applicant has prepared that she does not experience significant reduced functional capacity with respect to written communications. Her level of performance as demonstrated there is typical or indeed superior to that which might be expected of a person without her impairments in my opinion. I conclude based on the Applicant's oral presentation of her case that she does not experience significantly reduced functional capacity with respect to expressive oral communication. Again, the level of performance she demonstrated during the hearing was typical if not superior to which might be expected of a person without her impairments in my opinion.
5. In terms of her functional capacity for receptive communication, during the hearing the Applicant answered questions put to her by Counsel for the CEO, and the Tribunal, in a manner that was responsive to those questions. It was also apparent from what she put to the Tribunal by way of submission that she had been able to understand the evidence of each witness and the flow of discussion over the three days of the hearing. In my assessment, her level of performance of receptive language tasks in the hearing context was typical of that which might be expected of a person without her impairments.
6. Mr Mate assessed the Applicant as being "independent" in expressive and receptive language, which I take to mean that he did not consider her to have any notable functional impairment.
7. The Applicant's challenge to that evidence ultimately distils to the two propositions referred to above. That is, first, she is unable to effectively use the internet and other on-line technologies to communicate with others, and second, that she has trouble expressing herself and understanding information in formal and unfamiliar contexts, such as in communications with new service providers. It is her submission that she requires physical assistance with communication in these contexts. I accept that this is the case. I also accept the Applicant's report to Mr Mate that her expression and reception of communication is sometimes suboptimal due to stress, fatigue and other factors.
8. However, on-line communication is only one of various modalities for communication, and relatively formal meetings with new and unfamiliar service provides (for example) is only one discrete context in which communication occurs. Even if I were to find that the Applicant "cannot do" the former, and experiences "severe" difficulty with the latter, these discrete difficulties with specific communication tasks could not constitute substantially reduced functional capacity for communication overall.
9. As I have set out above, there is no issue that the Applicant is able to speak, write, hear, read, use a telephone and communicate in typical ways with her family friends, and familiar service providers. Even in the relatively formal context of this proceeding, her demonstration of expressive and receptive language has been at least typical of a person who does not have the Applicant's impairments. Having regard to the WHODAS difficulty scale I therefore conclude that her reduced functional capacity for communication is mild, not substantial.

1. For the reasons I have set out above the bundle of tasks within the social interaction activity area is limited to tasks associated with making and keeping friends, interacting with other people in the community, and maintaining behavioural and emotional regulation in a social context.
2. I note that this bundle of tasks, as identified, does not incorporate any reference to social interaction with immediate family, which is often referred to as evidence of functional capacity for social interaction in access cases, including by Mr Mate in this case (as to which see following). It is to be noted that represents a departure from the ICF/WHODAS assessment framework. However, upon reflection, it appears to me that this is a deliberate departure that is consistent with the objects of the NDIS Act, with its emphasis on the independence and social and economic participation of persons with disability, beyond their immediate family.[96]
3. The evidence in relation to the Applicant's functional capacity for communication may be summarised as follows:

1. In Part E of the Access Request Form he completed for the Applicant on 20 April 2023 Dr Holliday opines that the Applicant "is able to socialise with those she has established relationships with" and that she "[d]oes not require support to socialise with her casual acquaintances, but cannot access the community or do shopping without the physical support of another person",[97] 2. In the Access Request Supporting Evidence Form he completed on 23 June 2023 Dr Holliday opines that the Applicant does require assistance from other persons in relation to social interaction because:

Judy is able to socialise with those she has established relationships with, however she is supported by these friendships to participate as she will not initiate interactions independently. Judy does become overwhelmed and will withdraw from these friendships when in a state of confusion, and will try to sever ties out of frustration and lack of insight into social "norms"[98]

iii. In her report dated 23 December 2023 Ms Kinnear states:

Judy has a complex history and chronic spinal pain due to scoliosis and receives maintenance treatment of physiotherapy to assist in reducing the impact of muscle spasms on her neurological condition. When her condition worsens Judy is forced to be house bound which in turn isolates her from the community ...

In his response to the Agency's targeted questions, dated 6 September 2024, Associate Professor Cordato expresses the following opinion:

Her cognitive and communication difficulties ... affect [her] ability to interact socially. She finds this difficult from a cognitive point of view. She is also unable to drive and requires a support worker or carer to take to social events. Her social isolation is having a negative impact on her mood and contributing to symptoms of anxiety and depression. These can be improved if she was able to access support through NDIS to allow to attend social events.[99]

Mr Mate assessed the Applicant to be independent in all tasks within the social interaction actively area. In this respect he opined:[100]

Ms Burrows reported she has lived in [a regional township] for 24 years, and she has strong community links. She stated she has friendships in [that township] lasting multiple decades, and she has a solid group of 6 friends that she will typically go to her local club [with] twice a week, Thursdays and Sundays. Ms Burrows reported being close with her son and his wife, typically seeing them multiple times per week and babysitting their young children each Friday. She does not require assistance with social interactions. > > Ms Burrows reported she has separated from the father of her son 24 years ago and is not in a relationship. > > Ms Burrows reported she is able to interact with the community as required, stating she is able to speak to shopkeepers and receptionists and order food/drink when needed. > > There were no reported or observed deficits in relation to Ms Burrow's behaviour. > > Ms Burrows is able to independently cope with feelings/emotions in a social context.

In her Statement of Lived Experience dated 16 November 2023 the Applicant states with respect to social interaction:

I have been involved in local bowling club, generally the community bus picks me up. I normally give them call after I get ready. I hang out with friends for a couple of drinks (non alcoholic) twice a week.[101] > > Sometimes, I go for walk and get cup of coffee with one of my friends who has disability as well. She is lot worse than me; she uses a wheelchair because she has MS.[102] > > Because of my disabilities I struggle to make and maintain social relationships. I feel really isolated from the community. I have pulled away from many things because of my disabilities and I feel really angry about this. I am not able to go where I feel or need. I used to go to catch up with friends for coffee but now it is seeming to be impossible.[103] > > ... > > I would like to go for coffee with some supports where I can reconnect my old friends.[104]

In her Statement dated 15 January 2025 the Applicant refers to a period of social isolation earlier in her life, and then says:

I promised myself that I would never get to that level again. That's why I now have time with my grandchildren and go out and spend time with friends I have known for years, and new friends I have met through them along the way. I either get picked up and dropped off home, or get the club courtesy bus to pick me up and drop me off home. That is keeping my brain working, having a laugh and relaxing, and getting me out of 4 walls ....

In her Statements and oral evidence, the Applicant referred several times to positive social relationships with her neighbours, who assist her from time to time with personal shopping (although she states that they are not always able to help in this regard). The Applicant also reported that the property in which she lives has recently been put on the market for sale, and she does not know at this time whether she will be required to move from it. However, relevantly, in answer to questions, she advised that she would stay in that regional town because of her community links and familiarity with that township.

1. It is not contended that the Applicant is unable to perform the tasks associated with making and keeping friends, or those associated with interacting with other people in the community, or those associated with maintaining behavioural and emotional regulation in a social context without disability related assistive technology, equipment or home modifications. Nor is it contended that the Applicant usually requires assistance in the form of physical assistance, guidance, supervision or prompting to do so. Dr Holliday does opine, in effect, that the Applicant's ability to maintain her friendship group is reliant upon the efforts of her friends, rather than the Applicant herself, but that opinion is not borne out by the evidence, considered as a whole. The Applicant repeatedly described in her evidence reciprocal interactions with friends, and self-initiated contact with friends, neighbours and familiar service providers such as her local club's courtesy bus, her doctor, specialist and allied health service providers. Dr Holliday and Associate Professor Cordato also both refer to the Applicant as requiring support to access the community. During the hearing, it became clear that this was because the Applicant does not drive, and because there is limited public transport in her regional township. Those are not matters that go to the Applicant's functional capacity for social interaction, they are external environment factors impacting on her functional performance (not capacity). Nor is it contended that the Applicant is unable to perform these tasks, even with such supports. Rule 5.8 therefore has no application in this case.
2. The remaining issue is to determine if the Applicant has substantially reduced functional capacity for social interaction, otherwise than in the circumstances prescribed by Rule 5.8. I am not satisfied that she does. The evidence is that the Applicant has regular social interactions with her neighbours and friends. She walks regularly with one friend and sees a group of about six friends for a social activity twice a week. It is the Applicant's own evidence that she has community roots within her township, and that she has established relationships with local service providers, including her health and allied health care practitioners.
3. The Applicant does refer to an earlier time in her life when she was able to be more social, including by being active in sport. I accept that evidence. There is no doubt that the Applicant's life has been impacted by her impairments. However, as I have explained above, the statutory test is not whether a prospective participant has experienced a reduction in functional capacity relative to an earlier stage of life. It is the degree to which the prospective participant has the functional capacity for social interaction relative to a person who does not have the prospective participants impairment's and having regard to scope of s 24(1)(c)(ii) and its performance threshold. Having regard to the evidence before me, I am satisfied that despite any loss of such capacity over the Applicant's life she retains substantially intact functional capacity for social interaction according to the objective standard of s 24(1)(c)(ii), which does not contemplate prowess, but a level of basic function consistent with day-to-day subsistence.
4. The Applicant also refers in her Statement of 16 November 2023 to having withdrawn from her friendship network, and of wanting to reconnect with them. Associate Professor Cordato refers to the Applicant as being socially isolated, which has exacerbated her anxiety and depression. Ms Kinnear refers to the Applicant becoming housebound at times due to pain and immobility.
5. With respect, that evidence is inconsistent with other written statements of lived experience made by the Applicant and her oral evidence. That evidence affirms that the Applicant continues to socialise on a weekly and more frequent basis with neighbours and friends and has done so over a long period. I accept that it may be the case that the Applicant sometimes (on a bad day) is unable to socialise without severe difficulty or at all due to pain and immobility. However, for the purposes of s 24(1)(c) a distinction must be drawn between functional capacity at a point in time, and functional capacity over time. The Applicant may have bad days in terms of her functional capacity for social interaction on a cross-sectional basis, but viewed longitudinally (over time), she retains substantial functional capacity for social interaction in my assessment.
6. There is no evidence that the Applicant has engaged in emotionally or behaviourally dysregulated conduct in any interaction with a neighbour, her friends, or with others in the community. Dr Holliday does refer to the Applicant severing ties with friends due to frustration and lack of insight into social norms, but there is no evidence of that having occurred, or of being at risk of occurring, before me. I therefore cannot see any foundation for that opinion.

1. For the reasons I have set out above the bundle of tasks within the learning activity area is limited to tasks associated with acquiring knowledge, skills or understanding and memory.
2. The evidence in relation to the Applicant's functional capacity for learning may be summarised as follows:

1. In Part E of the Access Request Form he completed for the Applicant on 20 April 2023 Dr Holliday opines that the Applicant "[h]as difficulty learning or retaining new information due to short-term memory deficits", and that she requires the "support of another person when needing to receive, process and understand new information",[105] 2. In the Access Request Supporting Evidence Form he completed on 23 June 2023 Dr Holliday opines that the Applicant does require assistance from other persons in relation to learning because:

Judy has extreme difficulty learning or retaining new information due to short term memory deficits. She has been supported to set up a diary to note appointments, but her daughter in law has to prompt her everyday to remember and check her diary. Judy's daughter in law then attends any appointments or meeting with her to ensure that she understands what is communicated to her, and then she is supported to add this information to her diary to follow up anything that requires further action. Judy's daughter in law has been providing this support, however she is returning to full time work and will not be able to support Judy.

1. In his report to Dr Holliday dated 22 December 2023, Associate Professor Cordato expresses the opinion that the Applicant would benefit from:

Cognitive behavioural therapy to optimise her ability to adapt to new technologies. Due to her prior strokes and measles infection and chronic epilepsy she has difficulty with memory and concentration. She needs assistance with learning how to use new technologies including computer software as well as assistance with banking and handing her finances. She would benefit from both a psychologist and occupational therapist to help adapt and allow her to function in this new world with electronic data and communication.[106]

2. In her Statement of Lived Experience dated 16 November 2023 the Applicant states with respect to the learning activity area that she struggles to learn new things because of her short-term memory loss.[107]
3. Mr Mate assessed the Applicant as using modified techniques to perform tasks in the learning activity area. In this respect, he opined:[108]

Ms Burrows has an acquired brain injury and epilepsy, which impacts on her ability to remember new information. She reported this is more severe and she is more forgetful and has difficulty concentrating on bad days and when she is experiencing migraines. Ms Burrows reported she uses a diary and a notepad to remember new information. She confirmed she is able to understand and follow up on new medical information. She has recently purchased an air fryer to use as an alternative to her oven and has been able to learn how to use it. > > Through the use of pacing activity and breaking tasks into smaller components when experiencing high fatigue, as well as using a notepad and diary to remember information, Ms Burrows retains her independence in the domain of learning and does not require formal support.

4. In her Statement in response to the Agency's SoFIC the Applicant says the following in relation to her ability to carry out tasks in the learning activity area:[109]

... I take issue with the ... assertion ... regarding my capacity to learn. Though I have encountered various technologies, I struggle to retain any new information. ... while it is true that I benefit from using tools like a diary and notepad for memory support, I frequently rely on my doctors to remind me of appointments. For instance, I carry a bank card, but I must consult my notebook each time to retrieve the 4-digit code required for transactions. If I forget my diary or notepad, I find myself unable to access my funds, a situation that has regrettably occurred numerous times. This clearly demonstrates the significant reduction in my functional capacity, particularly concerning learning and memory retention. > > ... Each time I use my air fryer, for instance, I must reference the manual to ensure that I am operating it correctly. This constant need to consult written instructions underscores that I cannot reliably remember how to use even familiar appliances. My memory impairment severely hampers my ability to absorb and retain new information, making it a daily challenge.

5. In her oral evidence, the Applicant reiterated the difficulties she experiences in retaining new information, which she says makes it difficult for her learn new tasks, in the sense that, with reference to her use of the air fryer, she must take out the product manual each time and follow its instructions. She also referred several times to her inability to learn to use the internet to obtain and communicate information.

1. I do not understand it to be contended that the Applicant is unable to acquire knowledge, skills or understanding, or remember things, without assistive technology, equipment or home modifications. The evidence does establish that the Applicant has developed adaptive techniques to record and remember information, including the use of notes and a diary, but this does not amount to the use of "assistive technology" or "equipment", for the purpose of Rule 5.8(a), as defined in the Agency's operational policy. In this respect, the Applicant might use these adaptive strategies to mitigate a reduction in functional capacity due to impairment, but these are memory aides that might be used by anyone who does not have learning related impairments. They are not specialised disability or impairment related assistive technologies or equipment.
2. Nor do I understand it to be contended that the Applicant usually requires assistance in the form of physical assistance, guidance, supervision or prompting to acquire knowledge, skills or understanding, or remember things. The evidence is rather that the Applicant benefits from such assistance being provided with respect to some specific tasks, like using the internet, using a new item of kitchen equipment, and remembering appointments. While I accept that the need for such assistance in those contexts is real, this does not mean that the Applicant usually requires such assistance to acquire knowledge, skills or understanding or remember things in her activities of daily living taken as a whole.
3. Nor is it contended, and in any event I do not find, that the Applicant is unable to acquire knowledge, skills or understanding, even with such support. It is accepted that the Applicant benefits from physical assistance in relation to learning with respect to some discrete tasks. That is obviously not equivalent to being unable to learn, even with such support.
4. Rule 5.8 therefore has no application in this case.
5. The remaining issue is to determine if the Applicant has substantially reduced functional capacity for learning, otherwise than in the circumstances prescribed by Rule 5.8. I am not satisfied that this is the case.
6. I accept that the Applicant requires physical assistance to use the internet: she has been unable to learn to do so independently herself due to an inability to retain information. She has not been able to overcome that difficulty with adaptive strategies.
7. I also accept that the Applicant experiences a moderate degree of difficulty in using her air-fryer due to difficulties retaining the instructions for use. This requires her to consult the user manual each time or most times she uses that item of equipment. She also benefits from physical assistance in relation to the use of that item of equipment.
8. Additionally, I accept that the Applicant benefits from physical assistance in the form of prompts and reminders in relation to forthcoming appointments. These supplement the adaptive strategies she utilises to remember appointments, such as keeping notes and a diary record.
9. Against that, it is apparent that the Applicant has extensive acquired knowledge, skills and understanding in relation to activities of daily living which she has built up over a lifetime, which she retains. In this respect, I note that the Applicant has the skills, knowledge and understanding she requires to live successfully and independently in her own home, to manage and carry out her household tasks, to have raised a child to adulthood as a single mother, to have cared for her own elderly mother until her death, and to socialise with family and friends and mobilise within the community.
10. Learning is a life-long activity. Section 24(1)(c)(ii) certainly references a prospective participant's capacity for future learning, but it is not limited to consideration of those things yet to be learned. In my opinion it also references the prospective participant's existing state of knowledge, skills and understanding and their functional capacity to retain it.
11. Having regard to that, and the WHODAS difficulty factors, I am satisfied that the Applicant experiences mild to moderate difficulty with respect to discrete new learning challenges, and cannot learn to use the internet, but she does not experience substantially reduced functioning in relation to the acquisition and retention of knowledge, skills and understanding overall.

1. For the reasons I have set out above the bundle of tasks within the mobility activity area is limited to tasks associated with moving around within the home, and in the community, and getting in and out of bed and a chair.
2. The evidence in relation to the Applicant's functional capacity for mobility may be summarised as follows:

1. In Part E of the Access Request Form he completed for the Applicant on 20 April 2023 Dr Holliday opines that: "when tired [the Applicant] experiences blurred and doubled vision" and that she "cannot bend or reach up high".[110] He also opines that the Applicant is "[a]ble to access all areas of the home independently", and does not currently use or require any assistive technology". He states that the Applicant "requires support with domestic activities, accessing the community and doing grocery shopping".[111] 2. In the Access Request Supporting Evidence Form he completed on 23 June 2023 Dr Holliday opines that the Applicant does require assistance from other persons in relation to mobility because:

Judy's brain injury impairs her ability to mobilise when she is tired, she is susceptible to trips and falls and cannot access the community without the physical support of her daughter to ensure her safety. Judy's daughter in law has been providing this support, however she is returning to full time work and will no longer be available to assist her.[112]

In his report to Dr Holliday dated 22 December 2023, Associate Professor Cordato expresses the opinion that the Applicant would benefit from:

...occupational therapy assessment to confirm that house is safe in terms of railings and safety mat. This will ensure that she can live safely and independently.... > > She is unable to drive due to chronic epilepsy. She also needs assistance from a carer to take to medical appointments, allied health appointments, social engagements and also to the shops. Her memory disorder caused by her past medical history of measles infection/stroke, a stroke from a ruptured aneurysm and chronic epilepsy with epilepsy surgery resulting in her being unable to organise her own transport to relevant appointments and also need for a carer to accompany her to such appointments. > > She requires regular physiotherapy because of chronic spinal pain that will maintain her current level of pain control and prevent deterioration in her posture from her comorbidities including scoliosis. She would benefit from weekly physiotherapy.[113]

Mr Mate assessed the Applicant as being either independent or as using a modified technique to complete tasks within the mobility activity area. In this respect, he opined:[114]

Ms Burrows was observed mobilising independently for up to 15 continuous minutes without the use of a walking aid throughout her home and yard areas. She was observed ascending/descending her rear steps (4 steps) and walking on grass, floorboards, carpet, tiles and concrete. > > Ms Burrows was observed to have independent access to overhead and low storage. She reported that overhead lifting can cause pain in her shoulder and upper back, and she prefers to store items at waist level. > > Ms Burrows is deemed to be a medium falls risk. While she has had 0 falls in the past 12 months, she reported she has had serious falls previously, with the most serious 3-4 years ago resulting in a fractured ankle. She has a history of falls, symptoms of pain and reduced mobility, and the dizziness she experiences from migraines present as fall risk factors. Given the falls alone, a personal falls alert is recommended. > > Ms Burrows was observed completing bed transfers independently and in a safe and controlled manner, > > Ms Burrows was observed to complete chair transfers from a dining chair with modified independence and from her electric reclining lounge. From the chair, she used her arms to push on the table while standing from the chair with her legs. From the lounge chair, she was observed to use the lounges armrest for support. > > Ms Burrows was observed to complete toilet transfers independently, using her arms to push on the toilet's bilateral grab rails for support. > > Ms Burrows was observed to complete shower transfers independently in a safe and controlled manner, holding the grabrail for support while she stepped over the medium-sized (10-15cm) shower hob. > > Car transfers were not observed as Ms Burrows does not own a car. Ms Burrows reported she is able to manage car transfers independently. Based on my observations of her sit-to-stand transfers, I expect her to have the capacity to manage car transfers independently. > > Ms Burrows was observed to lift a range of items during the assessment, including her vacuum cleaner, a 3 L carton of milk and a peg basket (empty), which she carried to the clothesline. She has functional independence with lifting household items and confirmed she is able to carry washing from her laundry, down her steps to her washing line and then hang the washing out. > > Ms Burrows does not drive and reported she has never had a driver's license due to her epilepsy. > > Ms Burrows reported she occasionally uses a public bus to access the community. However, there are limited bus options, with one at 7:15am and one at 10:30am, and when she takes them, she cannot return home until 3:30pm. She finds spending this much time in the community tiring and will avoid using the bus if required. She stated the club she goes to has a courtesy bus, which she will often use after socialising with her friends at the club > > Ms Burrows is able to mobilise in the community independently, reporting she typically needs to rest after 10-15 minutes of walking. She has difficulty accessing the community, as public transport options for her are minimal, and she is required to stay in town for 4-5 hours when she does use public transport. She currently relies on another person, typically her son or daughter, when accessing the community. She reported feeling like a burden at times because of this and expressed frustration at not being able to access the community independently without assistance from another person. I recommend that Ms Burrows apply for the subsidised taxi scheme

In her Statement of Lived Experience dated 16 November 2023 the Applicant states the following with respect to the mobility activity area:[115]

I normally go for a short walk if I am feeling ok. I have been informed by my physiotherapy to walk regularly. It is a big toll on me, because if I have walk, it generally put me to bed in pain. > > ... I feel ok on average day, I can do a bit more walk with my dog ... on my good days I can go for a coffee and walk a bit further with my dog. > > I normally get up and have breakfast and get dressed, have my morning medication. If I feel normal, I will take my dog for a walk. I have a dog park which just across the road. I take my dog and sit down there ... Usually, it same in the afternoon. If I need my shopping done, I have to tell my neighbours or friends in a week advance, some time that time is not enough, I waited more than week some time for a loaf of bread and milk

In her Statement of 25 January 2025 the Applicant refers to an earlier period in her life when she was able to be much more active, and then says:

I am not able to walk the distance I did back then, but I have been told to walk at least 30 mins a day. Even though there are some times I am in pain doing this especially if I am behind in physio ... > > My daily task around the house eg. Cleaning now take me three days to do. I do the dusting one day, cleaning bathroom and toilet next day and vacuuming and washing floors on the third day. By the time I have finished each day, especially by the end of the third day I am in so much pain in my head, neck and back. It takes me a couple of days to recuperate. But I make myself do it as I like to keep the house clean. But I not doing it weekly as I used to.... > > Doing the washing is another task I am finding harder to do (hanging out and getting off the line as that affects my neck which then affects my head) and stripping the bed and making it. I am also finding hard to do and hanging them on the line. > > There as been questioning about my brain impairment due to me having bought an Air-Fryer/oven. I bought this as it sits on top of the cupboard which saves me having to bend over, but each time I use it I have to get the book out the drawer and read through to check what I need to do as it just doesn't stick in my head due to my short-term memory.

In her response to the Agency's SoFIC, the Applicant states the following with respect to her capacity to walk and utilise the NSW Taxi Subsidy Scheme:[116]

... it is stated that I can walk 50 metres. I find this statement inaccurate. In reality, I struggle to wall even short distances without requiring several breaks to catch my breadth and alleviate the strain on my body. Attempting to walk long distances exacerbates the pressure on my neck and back, causing considerable discomfort. I am unable to walk safely of fulfill even my most basic daily needs. > > ...Mr Mate indicates to available subsidised taxi services. However, I must emphasize that I reside in a regional town with severely limited access to reliable taxi options. When needing to travel into town, I have access to only one bus in the morning, with a return bus scheduled for later in the day. This schedule drastically limits my ability to attend afternoon appointments, effectively isolating me from essential services. For my regular doctor's visits, I am compelled to take the morning bus and then endure a five hour wait for the return service - a situation that is simply unfeasible given my disabilities.

1. It is not contended that the Applicant requires assistive technology, equipment, or home modifications to move around within her home or the community or to get in and out of bed or a chair. Mr Mate does recommend that she obtain and use a personal falls alert to obtain prompt assistance in the event of a fall. That is an assistive technology that would enable the Applicant to mobilise within her home with greater safety, but she is able to do so effectively, from a functional point of view, without it. In his 2023 report Associate Professor Cordato recommended that there be an occupational therapist assessment of the Applicant's home to determine if any safety-related modifications were required. Mr Mate's assessment was subsequent to that and he did not make any home medication recommendations. Nor is it contended that the Applicant usually requires physical assistance to move around within her home or the community or to get in and out of bed or a chair, or that she is unable to do so at all even with assistive technology or physical assistance. Rule 5.8 therefore has no application in this case.
2. The remaining issue is to determine if the Applicant has substantially reduced functional capacity for mobility, otherwise than in the circumstances prescribed by Rule 5.8. I am not satisfied that this is the case.
3. The evidence does establish that the Applicant's ability to mobilise within the community is limited by her inability to drive (the Applicant cannot obtain a driver's license because she is considered by Ausroads, or considers herself, unfit to drive due to seizures and Epilepsy[117]), and the limited public transport options that are available in her township. While those factors limit the Applicant's functional performance, they do not relate to her functional capacity. They represent external environment factors impacting on function (a road rule and suboptimal public transport in a rural town). There is no issue that the Applicant has the functional capacity to ride as a passenger in a motor vehicle and any form of public transport.
4. Dr Holliday expresses the opinion that the Applicant requires someone to support her to access the community to ensure her safety, particularly she is tired. However, that is not borne out on the evidence, considered as a whole. Rather, the evidence satisfies me that the Applicant has benefited from her daughter-in-law being able to take her to appointments at times because of the inconvenience of public transport and not because it was unsafe for the Applicant to do otherwise. The Applicant's evidence is that she travels on the local public bus, and her local club's courtesy bus, without any personal safety risk greater than that experienced by a person without her impairments. The evidence also establishes that the Applicant generally attends her medical and allied health appointments independently.
5. The Applicant's evidence, and that of Mr Mate, is that the Applicant is also able to walk independently in her neighbourhood. In her own evidence the Applicant states that she aims to do so for at least 30 minutes a day and that her routine usually involves her taking her pet dog for a walk in a nearby park, once in the morning and once in the afternoon. The Applicant also gave evidence of regularly walking in a nearby park with a friend. I accept the Applicant's evidence is that she is unable walk extended distances in her neighbourhood without stopping to rest and without experiencing discomfort and pain. She gave evidence that the degree of pain and discomfort she experiences in doing so depends in part, on whether she has recently had physiotherapy. Having regard to this evidence, and the WHODAS difficulty factors, I conclude that the Applicant experiences mild to moderate difficulty walking in her neighbourhood in terms of pain and discomfort and slowness (depending on the day) but she does not experience substantially reduced function in doing so. I am satisfied that cross-sectionally on most days, and longitudinally, she has at least 50% functional capacity to perform this task.
6. Mr Mate's evidence, which I do not understand to be in dispute, is that the Applicant is able to get out of bed and a chair independently using a modified technique, which is to use her arms as well as her legs to support that movement. Having regard to the Applicant's and Mr Mate's evidence, and the WHODAS difficulty factors, this involves some changes in the way these tasks are performed, some increased effort, some additional time to perform these tasks, and it also involves a degree of discomfort, but objectively those difficulty factors are of a relatively mild form when compared to a person who does not have the Applicant's impairments.
7. Similarly, the Applicant's and Mr Mate's evidence is to the effect that other than when she is performing strenuous household tasks such as those associated with heavy laundry and domestic cleaning, and some other tasks that require bending over, the Applicant can move around her home and yard without difficulty. Mr Mate observed her doing so without the using any assistive device for a period of approximately 15 minutes, which included her descending and ascending a small flight of stairs and walking on various surfaces, including grass, floorboards, carpet, tiles and concrete. Mr Mate also observed the Applicant to be able to reach up to higher cupboards and down to lower cupboards independently. He noted that the Applicant reported that reaching causes discomfort and pain and that to minimise this she stores household items at waist level. I do not understand the Applicant to argue with Mr Mate's observations. Having regard to this evidence and the WHODAS difficulty factors I conclude that the Applicant experiences mild difficulty in performing these tasks, referable to changes in the way she does these tasks and the experience of pain and discomfort, but she does not experience substantially reduced functional capacity to do so.
8. The Applicant's primary concerns in relation to mobility within her home relate to her performance of domestic tasks, being heavy laundry and domestic cleaning. Those are important tasks of daily living in relation to which it may be accepted that the Applicant has reduced functional capacity in terms of increased effort, slowness and experience of discomfort and pain. However, for the reasons I have set out above those tasks are not incorporated into any of the s 24(1)(c) activity areas and do not form part of the s 24(1) statutory test.

1. For the reasons I have set out above the bundle of tasks within the self-care activity area are limited to tasks associated with personal care (including hygiene and grooming), eating and drinking, and health care.
2. The evidence in relation to the Applicant's functional capacity for self-care may be summarised as follows:

1. In Part E of the Access Request Form he completed for the Applicant on 20 April 2023 Dr Holliday expressed the opinion that the Applicant is "[a]ble to tend to [her] own personal care".[118] 2. In the Access Request Supporting Evidence Form he completed on 23 June 2023 Dr Holliday opines that the Applicant does require assistance from other persons in relation to self-care (showering) "during episodes of vertigo and pain (neuropathic)", also stating "at times she has collapsed or can be very unsteady", and "housework affects her neck causing headaches and vertigo".[119] 3. In her Statement of Lived Experience dated 16 November 2023 the Applicant states the following with respect to the self-care activity area:

I do have a railing in the shower which helps me do showers. I really rely on this kind of assistive technology to complete my morning personal care tasks. I normally take a long time to get ready in the morning because of consistent pain.

1. As has been set out above in relation to permanence, the evidence in relation to health care is that the Applicant diligently attends to her personal health care including by accepting all prescribed treatment and regularly attending General Practitioner, Specialist, and allied health care appointments (as these are available to her).
2. Mr Mate assessed the Applicant as being either independent or as using a modified technique to complete tasks within the self-care activity area. In this respect, he opined:[120]

[Toileting] was not observed. Ms Burrows reported she experiences some bladder incontinence and uses incontinence aids. She reported she is able to manage these and all other aspects of toileting independently. > > [Feminine hygiene] was not observed. However there were no reported difficulties with this task. > > [Washing hands] Ms Burrows is able to perform this task independently. > > Ms Burrows was observed to simulate showering tasks. She holds the horizontal grab rails in her shower recess to support showering. She reported that she had difficulty washing her back as the twisting and reaching aggravated her pain. > > In my opinion, the use of long-handled washing aids in the shower will promote ... safety and independence with this task. > > Ms Burrows reported she is fully independent with upper body dressing. She stands to dress and is able to use buttons and zippers. > > Ms Burrows is able to dress her lower body, including donning/doffing shoes and socks, independently with modified techniques, typically sitting on her bed to dress her lower body. She was observed to don/doff shoes and socks and reported she typically wears slip-on shoes to make donning/doffing shoes easier. > > [Fasten bra] Ms Burrows reported she is fully independent with this task. > > Ms Burrows was observed performing grooming tasks, including brushing her teeth. She is able to independently manage these tasks. > > [Brush/style hair/apply makeup] This task was not observed. Ms Burrows confirmed she is able to independently manage these tasks. > > Ms Burrows reported she is able to independently cut her finger and toenails. She sits on a chair when cutting her toenails. > > Ms Burrows is able to perform meal preparation tasks independently. She was observed accessing cupboards, her fridge, freezer and preparing a cup of tea. She reported she typically makes 'basic, simple' meals such as meat and vegetables and has recently purchased an air fryer, which she placed on her benchtop for easy access. She stated she experiences symptoms of pain when bending and twisting to access her saucepans, particularly the heavy ones. I recommend she keep her heavier of more frequently used pans on her stove to reduce the need to bend and access them. > > Ms Burrows is able to plan grocery lists and perform shopping tasks when in a store and is able to carry partially filled grocery bags to reduce the need for heavy lifting/carrying. However, she has difficulties with shopping due to her mobility restrictions. She relies upon assistance from another person, typically her son, daughter-in-law or a friend when accessing the community. Due to Ms Burrow's inexperience and lack of confidence in using and learning technology, she does not feel confident using click-and collect and online shopping. > > The difficulties Ms Burrows experiences in grocery shopping are grounded in her mobility restrictions... > > Ms Burrows was observed to simulate [domestic] cleaning tasks, including gathering her vacuum cleaner from the cupboard she stores it in, dragging it into the hallway and then plugging it in. > > Ms Burrows was observed to have difficulty with this task, and her vacuum cleaner was observed to be large, bulky and heavy. It took her 5-10 minutes to set up the vacuum cleaner, by which point she appeared fatigued. She reported that vacuuming is the most fatiguing task she performs, and she typically vacuums one day per fortnight and cleans the bathroom on the same day. After performing these tasks, she experiences high levels of pain and fatigue. > > I recommend that Ms Burrows upgrade her vacuum cleaner to a light weight, cordless stick vacuum cleaner or instead use a long-handled microfibre broom with a swivel head to reduce bending, twisting, lifting and dragging a heavy vacuum as she navigates from room to room. I expect that with the use of pacing techniques and a stick vacuum, Ms Burrows will be independent with vacuuming tasks. > > Ms Burrows' physical incapacities impair her ability to perform heavy bathroom scrubbing tasks due to the required bending, twisting, and vigorous movements. > > Ms Burrows was observed to simulate laundry tasks and was observed carrying a peg basket from her laundry down her rear stairs to her clothesline, where she demonstrated reaching the clothesline to put clothes on the line. Ms Burrows reported experiencing symptoms of pain during overhead reaching when hanging her laundry. I recommend Ms Burrows use a portable clothesline ... to reduce the need for overhead lifting and carrying. I recommend Ms Burrows store this upstairs, in her rumpus room, which is located close to the laundry and inside of her home, to reduce the need for her to mobilise down her stairs while carrying her washing basket, which presents a falls hazard. > > Ms Burrows reported she is able to independently change her bed linen with difficulty stating that the lifting of the mattress to strip and replace the linen, carrying the linen when they are wet after having been washed and them hanging them on the line causes symptoms of pain through her back and shoulders. In my opinion, navigating steps while carrying the linen presents a falls risk. > > As discussed above, I recommend Ms Burrows use a portable clothesline to be stored in the rumpus rook ... to reduce the need for overhead lifting and carrying during laundry tasks. > > Ms Burrows is able to independently manage kitchen cleaning tasks and dishwashing. She has purchased fatigue mats, which she stands on when completing meal preparation and dishwashing tasks to reduce pain and discomfort. > > Ms Burrows pays for a lawn service to maintain her lawns. Her physical incapacities, including her reduced capacity for bending, pushing, pulling and twisting, impair her ability to independently maintain her lawns.

1. It is not contended that the Applicant is unable, generally, to undertake personal care, eat and drink or attend to her health care, without assistive technology, equipment or home modifications. She does have handrail installed in her shower recess to aid with mobility and safety when showering, but that assistive technology relates to only one personal care task. She does not require assistive technology more generally in the self-care activity area. Nor is it contended that the Applicant usually requires assistance in the form of physical assistance, guidance, supervision or prompting to perform the designated self-care tasks. Nor is it contended that the Applicant is unable perform the designated selfcare task, even with such support. Rule 5.8 therefore has no application in this case.
2. The remaining issue is to determine if the Applicant has substantially reduced functional capacity for self-care, otherwise than in the circumstances prescribed by Rule 5.8. I am not satisfied that she does. I conclude on the relevant evidence that the Applicant is substantially independent in the self-care life activity area.
3. The real functional difficulties experienced by the Applicant that appear in the evidence related to the self-care activity area are tasks associated with domestic cleaning, heavy laundry, lawn and garden maintenance, shopping for food, and kitchen storage. But none of these tasks falls within the bundle of tasks that make up the self-care activity area as it operates within the legislative scheme for the reasons I have stated above.
4. There may be an exception to this where a prospective participant's inability to perform these tasks results in squalor or malnutrition, for example. In such circumstances these tasks may be considered as related to 'health care' in the self-care activity area. But there is no suggestion of squalor or malnutrition in this case, so it is inappropriate for me to express any concluded view on this. With respect to 'shopping for food', while the tasks of eating and drinking presuppose the existence of food and drink, I consider tasks associated with shopping to be materially different and I cannot see how they can be assimilated into the self-are activity area under that guise. Similarly, storage and retrieval of cooking equipment appears to me to be too remote from the tasks of eating and drinking to fall within the self-care activity area.
5. What this leaves is the Applicant's use of a handrail in her shower recess for showering to aid mobility and safety and her self-report that it takes extended time for her to complete her personal care each day due to restricted movement, discomfort and pain.
6. On the state of the evidence and having regard to the WHODAS difficulty factors I am satisfied that showering requires increased effort, involves a degree of discomfort and pain, and requires changes in the way the activity is performed as compared with a person without the Applicant's impairments. I am also satisfied that the Applicant's personal care routine is slower and is associated with a degree of discomfort and pain as compared with a person who does not have the Applicant's impairments. However, these reductions in functional capacity are mild, not substantial, on the evidence before me. They also constitute discrete tasks, and even if the Applicant did experience substantially reduced functional capacity to perform them, this could not amount to substantially reduced capacity for self-care when that activity area is considered as a whole.
7. For completeness, I should note that I have not overlooked Associate Professor Cordato's evidence that the Applicant is at risk of falls in the shower due to vertigo and pain. However, this opinion appears as a bare statement. There is no corroborating evidence of this occurring. The Applicant reported to Mr Mate during his assessment that she last experienced a fall 3-4 years ago resulting in a sprained ankle. The state of the evidence does not reveal if that event occurred in a shower. Based on that event and the Applicant's physical impairments Mr Mate assessed the Applicant as being a medium fall risk generally (no specific comment is made about showering) and recommended that she obtain a personal falls alarm. The state of the evidence therefore does not lead any different conclusion with respect to showering than that I have stated above.

1. For the reasons I have set out above the bundle of tasks within the self-management activity area are limited to cognitive tasks associated with personal organisation, planning, decision-making, self-care, problem-solving and financial management.
2. The evidence in relation to the Applicant's functional capacity for self-management may be summarised as follows:

1. In Part E of the Access Request Form he completed for the Applicant on 20 April 2023 Dr Holliday states that the Applicant: "uses a diary to maintain appointments and can pay bills at the post office or bank but [is] unable to use internet banking".[121] He also states that the Applicant "[c]an manage household bills and accounts by using a diary and paying in person" but is "unable to use internet banking or remember passwords".[122] 2. In the Access Request Supporting Evidence Form he completed on 23 June 2023 Dr Holliday opines that the Applicant does require assistance from other persons in relation self-management because:

Judy's daughter in law has set up a budget for her and assists her to follow this budget by providing physical assistance to attend the post office or bank to pay bills, but even with coaching and support Judy is unable to use internet banking. Judy's daughter in law has been providing this support, however she is returning to full time work and can no longer provide this support. > > 1. In her Statement of 15 January 2025 the Applicant says the following about her ability to complete financial management tasks: > > ... My bills get taken straight out of my account. My Disability Pension goes into my bank account and out of that each fortnight comes my rent.

As already set out above, the Applicant also refers in her Statements to being unable to use the internet for banking, and to being unable to remember her pin number for banking unless it is written down. She reports that this has meant that there have been times when she has been unable to obtain funds.

1. Mr Mate assessed the Applicant as being independent in all tasks within the self-management activity area. In this respect, he opined:[123]

Ms Burrows is independent in regards to all self-management activities. Examples of her independence in this domain include:

• She organises all of her own medical and therapy appointments
• She has her own bank account and she manages her own finances
• She is able to budget and manage her money
• She manages her own mobile phone bill

Based on my observations during this assessment, Ms Burrows has the capacity to plan, problem-solve, and make decisions without assistance. In my opinion, Ms Burrows does not have any requirements for assistance in the domain of self-management.

1. It is not contended that the Applicant is unable to make personal plans, make decisions, problem-solve or manage her self-care and financial affairs without disability related assistive technology, equipment or home modifications. As already noted, the Applicant does use some adaptive techniques, such as making notes and diarising events, to manage memory problems, but these strategies do not amount to the use of assistive technology as defined in the Agency's operational policy. Nor is it contended that the Applicant usually requires assistance in the form of physical assistance, guidance, supervision or prompting to do so. There is some evidence that the Applicant is assisted by her daughter-in-law with some aspects of banking, but this is not equivalent to the Applicant usually requiring assistance with self-management, or even with financial management, generally. Nor is it contended that the Applicant is unable to perform these tasks, even with such supports. Rule 5.8 therefore has no application in this case.
2. The remaining issue is to determine if the Applicant has substantially reduced functional capacity for self-management, otherwise than in the circumstances prescribed by Rule 5.8. I am not satisfied that she does.
3. I accept the Applicant's evidence that she has trouble remembering her banking pin number. Her evidence is that she has it written on a note that she carries with her. There is a degree of vulnerability associated with this. I also accept the Applicant's evidence that she requires physical assistance in the form of guidance with more complex banking tasks, which on the evidence I understand to be setting up direct debit arrangements for regular payments and other internet payments. Dr Holliday refers to the Applicant requiring assistance with budgeting. If he means more by that than the Applicant being assisted with direct debits, there is no other evidence which supports that contention, and I do not find that is the case. There is no evidence of the Applicant ever having been in financial difficulty or stress, or of her being unable to meet her subsistence needs, due to an inability to effectively manage her finances.
4. Having regard to the state of the evidence, and the WHODAS difficulty factors, I am satisfied that with respect to some cognitive tasks related to financial management the Applicant has changed the way she performs these tasks by obtaining physical assistance from someone else. However, that constitutes no more than a mild degree of difficulty in terms of financial management when that task area is considered as a whole. It does not constitute substantially reduced functional capacity for financial management.
5. I have already noted the Applicant's diligence in attending to her own health care. I accept her evidence that she has some difficulty remembering appointments and relies on memory aids and prompting in some instances to manage this. However, overall, the evidence is that the Applicant has a very good understanding of her health conditions and treatment regime and is fully adherent with treatment. There is no evidence of systematic or repeated failure to attend to health care due to memory or other cognitive impairments. The highest the evidence rises in this regard is to a risk that appointments might be missed without memory aids and prompts. People without the Applicant's impairments are also likely to rely upon memory aids (appointment cards, diary entries) and prompts (confirmation texts and calls from health practitioners and others for example) to attend to their health care needs. Having regard to that I do not consider that the Applicant has reduced functional capacity in relation to the cognitive tasks associated with health care as compared with a person who does not have her impairments. In any event, the Applicant does not experience substantially reduced function in relation to the cognitive tasks associated with health care.
6. Despite the cognitive impairments I have found, the evidence does not lead to the conclusion that the Applicant otherwise experiences reduced functional capacity in relation to planning, decision-making or problem solving. Nothing concrete of this nature emerges from the evidence.

1. For the foregoing reasons, I have not found that the Applicant experiences substantially reduced functional capacity in any of the six activity areas specified in s 24(1)(c).
2. That finding does not mean that the Applicant does not have reduced functional capacity to perform some tasks associated with daily living. She clearly does. However, to the extent that these tasks fall within the s 24(1)(c) activity areas, her reduced function is not sufficiently acute as to constitute substantially reduced function as compared with a person who does not have her impairments. Other activities of daily living in which the Applicant does experience reduced function do not fall within the s 24(1)(c) activity areas for the reasons I have explained.
3. It follows from this conclusion that the Applicant cannot meet the disability requirement for access to the NDIS, and it is unnecessary to consider the requirements of s 24(1)(d) and (e).

1. The early intervention requirement for access to the NDIS is found in s 25 of the NDIS Act and in Part 6 of the Becoming a Participant Rules. In summary, and relevantly, a prospective participant will meet the early intervention requirement:
   1. if they have one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are or are likely to be permanent or one or more identifiable impairments that are, or are likely to be permanent which are attributable to a psychosocial disability,[124] and
   2. 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,[125] or
   3. the CEO is satisfied that provision of early intervention supports for the person likely to benefit the person by:
      1. 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
      2. preventing the deterioration of such functional capacity; or
      3. improving such functional capacity,[126] and
2. This review has proceeded on the assumption that the Applicant has requested access to the NDIS on the basis that she meets the early intervention requirement in the alternative to the disability requirement. This appears to be because the CEO's original access decision of 10 May 2023 and the internal reviewer's decision of 3 August 2023 both considered the Applicant's eligibility for access to the scheme in accordance with that requirement.
3. However, if the Applicant's access request is properly considered, she never sought access to the NDIS on this basis. In Part C of the NDIS Application Form, which deals with early intervention matters, the Applicant's treating professional states frankly that early intervention supports will not reduce the Applicant's future support needs.[127] The applicant's Application for independent review, in terms, only challenges the reviewer's decision concerning her satisfaction of the disability requirement.
4. Although the Agency's SoFIC and opening statement formally addressed the early intervention requirement, no part of the evidence, documentary or oral, was indicative that the Applicant's access to the scheme on this basis was sought or was arguable. The Applicant did not contend for access on this basis at the hearing.
5. Having considered the whole of the evidence I am not satisfied that there is any form early intervention support that is likely to benefit the Applicant in any of the ways specified in s 25(b) or (c) or by Part 6 of the Becoming a Participant Rules. The internal review decision should therefore be affirmed in this respect.

1. For the foregoing reasons, the decision under review is affirmed.

[1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunals Tribunal Act 1975 (Cth). The AAT was abolished and replaced by the Administrative Review Tribunal (ART) with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.

[2] Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577 (Drake) at 589.

[3] Shi v Migration Agent's Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [45] - [46].

[4] The NDIS also provides time-limited early intervention assistance to other persons with disability who experience intellectual, cognitive, neurological, sensory, or physical impairments or impairments to which a psychosocial disability is attributable, which are permanent or likely to be permanent, who will benefit from such support in specified ways. Again, this is a limited sub-category of the total population of persons with disability in Australia.

[5] Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201 (Mulligan) at [50].

[6] Hansard, House of Representatives, Prime Minister the Hon. J Gillard, Second Reading Speech, National Disability Insurance Scheme Bill 2012, 29 November 2012 at [13877].

[7] Productivity Commission (2011) Disability Care and Support, Report no. 54, Canberra (Productivity Commission Report), pages 165 and 198.

[9] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60].

[10] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85].

[14] Applying to access the NDIS | NDIS.

[15] Joint Tender Bundle, Tab T01, page 27.

[21] World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3 (WHO (2002) at page 2.

[22] World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva: International Classification of Functioning, Disability and Health (ICF)

[24] DQKZ and National Disability Insurance Agency [2024] AATA 2276 at [144] - [149].

[28] ICF b 1400 "mental functions that produce concentration for the period of time required".

[30] ICF b 1440 "mental functions that produce a temporary, disruptable memory store of around 30 seconds duration from which information is lost if not consolidated into long-term memory".

[31] ICF b 1521 "mental functions that control the experience and display of affect".

[32] ICF b 1522 "mental functions that produce the spectrum of experience of arousal of affect or feelings such as love, hate, anxiousness, sorrow, joy, fear and anger".

[34] ICF b 1641 "mental functions of coordinating parts into a whole, of systematizing; the mental function involved in developing a method of proceeding or acting".

[35] ICF b 1646 "mental functions of identifying, analysing, and integrating incongruent information into a solution".

[37] ICF b 1670 "specific mental functions of decoding messages in spoken, written or other forms, such as sign language, to obtain their meaning".

[38] ICF b 1671 "specific mental functions necessary to produce meaningful messages in spoken, written, signed or other forms of language".

[39] ICF b 240 "sensations of dizziness, falling, tinnitus and vertigo".

[40] ICF b 280 "sensation of unpleasant feeling indicating potential or actual damage to some body structure".

[41] ICF b 28010 "sensation of unpleasant feeling indicating potential or actual damage to some body structure felt in the neck and head".

[42] ICF b 28013 "sensation of unpleasant feeling indicating potential or actual damage to some body structure felt in the back".

[54] This is apparent from her Statements at pages 182 to 191, 280 to 289, and 290-291 of the Joint Tender Bundle, and from her oral evidence on this point.

[57] In her Statement of 15 January 2025 the Applicant appears to state that this injection has now been ceased due to inefficacy; Joint Tender Bundle pay [184].

[58] Mate report, Joint Tender Bundle at page 213.

[59] Mate report, Joint Tender Bundle at page 216.

[60] Mate report, Joint Tender Bundle at page 241.

[61] Joint Tender Bundle, pages [182] to [191].

[62] Joint Tender Bundle, pages [290] to [291].

[65] Macquarie Dictionary Word Search.

[66] See for example, Rooney and National Disability Insurance Agency [2021] AATA 3523 at [22]; Garcia Albiol and National Disability Insurance Agency [2024] AATA 496 at [68].

[67] T B Ustun, N Kostanjsek, S Chatterji nd J Rehm (eds) Measuring Health and Disability, Manual for WHO Disability Assessment Schedule (WHODAS 2.0), World Health Organisation, 2010 (Measuring Health and Disability).

[68] ICF online "Activities and Participation" description.

[69] I should be clear that I am only suggesting that the WHODAS 2.0 difficulty scale provides conceptual assistance in ascertaining the broader circumstances in which the statutory threshold of "substantially reduced function" is met. It is not my intention to suggest that it is prescriptive of that statutory language. The statutory language itself constitutes the test.

[74] T B Ustun, N Kostanjsek, S Chatterji nd J Rehm (eds) Measuring Health and Disability, Manual for WHO Disability Assessment Schedule (WHODAS 2.0), World Health Organisation, 2010 (Measuring Health and Disability.

[76] Mulligan at [55]; National Disability Insurance Agency v Foster [2023] FCAFC 11 at [64].

[77] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [109].

[78] The ICF defines functional capacity as an individual's ability to execute a task or an action. It identifies the highest probable level of functioning a person may reach in each domain at a given moment. Functional performance describes what an individual does in his or her current environment which may be related to aspects of the physical, social and attitudinal world: ICF "Activities and Participation" tab. Functional performance may be affected by geographic factors (remoteness, terrain etc), personal factors (gender, ethnicity, sexual identity) and related social factors (such as discrimination based on a personal characteristic, perceived gender roles etc). These factors are not "choices" made by an individual in any direct sense. For a discussion of the distinction between functional capacity and functional performance see World Health Organisation, (2002), Towards a Common Language for Disability Functioning and Health, ICF Geneva (WHO/EIP/GPE/CAS/0.1.3) at page 2.

[81] Alcan (NT Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47].

[82] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, 389 [25].

[84] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 at 384 [78].

[85] Mulligan at [12]; Revised Explanatory Memorandum, National Disability Insurance Scheme Bill 2012, House of Representatives; Productivity Commission (2011) Disability Care and Support, Report no,54, Canberra.

[86] Mulligan at [54]; Productivity Commission Report at pages 174 and 198-99.

[87] Productivity Commission Report, page 311.

[88] Measuring Health and Disability page 48 - 54.

[89] For example, Willcocks and Chief Executive Officer, National Disability Insurance Agency [2024] AATA 2722 at [216] to [228].

[91] Re Ganchov and Commission for Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 419; (1990) 19 ALD 541 at [41].

[95] Mate Report, page 230 of the Joint Tender Bundle.

[96] ss 3(1)(c) and 4(2) of the NDIS Act, as examples.

[100] Mate report, page 230-31 of the Joint Tender Bundle.

[106] Joint Tender Bundle page 175; Associate Professor Cordato expressed a similar view in his response to the Agency's targeted questions on 6 September 2024, see Joint Tender Bundle, page 180.

[108] Mate Report, page 231 of the Joint Tender Bundle.

[109] Page 290 - 291 of the Joint Tender Bundle.

[113] Joint Tender Bundle page 175; Associate Professor Cordato expressed a similar opinion in his response to the Agency's targeted questions on 6 September 2024; Joint Tender Bundle page 181.

[114] Mate report, pages 231 - 235 of the Joint Tender Bundle.

[115] Joint Tender Bundle pages 168 - 173.

[116] Page 290 of Joint Tender Bundle.

[117] Summary of changes | Austroads.

[120] Mate Report, page 235 -240 of the Joint Tender Bundle.

[123] Mate Report, page 240 of the Joint Tender Bundle.

[124] s 25(1)(a) of the NDIS Act and Rules 6.2(a) and 6.4 to 6.7 of the Becoming a Participant Rules.

[125] s 25(1)(b) of the NDIS Act and Rules 6.2(b) and 6.8 to 6.11 of the Becoming a Participant Rules.

[126] S 25(1)(c) of the NDIS Act and Rules 6.2© and 6.8 to 6.11 of the Becoming a Participant Rules.

[127] Joint Tender Bundle, Tab T01, page 37.