Decision: The Tribunal affirms the decision under review

NATIONAL DISABILITY INSURANCE SCHEME - becoming a participant - access request - whether access criteria under s 21 of the NDIS Act met - whether disability requirements under s 24 of the NDIS Act met - functional neurological disorder - neurological impairment - impairment to which a psychosocial disability is attributable - whether impairment is, or is likely to be permanent - decision under review affirmed

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

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

National Disability Insurance Scheme Act 2013 (Cth)

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

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (14 October 2024, pre-legislation changes)

Administrative Review Tribunal, Guideline on persons giving expert and opinion evidence, December 2024

Administrative Review Tribunal, Common Procedures Practice Direction, April 2025

Modernized ICF Online Browser, available at International Classification of Functioning, Disability and Health (ICF)

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

World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.

Anterior Hippocampal grey matter predicts mental health outcome in functional neurological disorders: an exploratory pilot study, Perez et al, 2017

Neuroimaging in Functional Neurological Disorder: State of the Field and Research Agenda, Perez et al, 2021

Functional neurological disorder in children and young people: Incidence, clinical features and prognosis, Yong et al, 2023

Prognosis of functional neurological disorders, Gelauff and Stone, 2023

Occupational therapy consensus recommendations for functional neurological disorder, Nicholson et al, 2020

FND Australia website, FND Australia

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

National Disability Insurance Agency v Davis [2022] FCA 1002

National Disability Insurance Agency v Foster [2023] FCAFC 11

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Beezley v Repatriation Commission [2015] FCAFC 165

Foster v National Disability Insurance Agency [2025] ARTA 718

Madelaine and National Disability Insurance Agency [2020] AATA 4025

Garcia Albiol and NDIA [2024] AATA 496

G v Minister for Immigration and Border Protection [2018] FCA 1229

National Disability Insurance Agency v Lampard [2025] FCAFC 139

National Disability Insurance Agency v Jones [2025] FCA 877

Colefax v National Disability Insurance Agency [2024] AATA 2854

ZJSG and National Disability Insurance Agency [2023] AATA 2784

1. The issue to be determined in this case is whether the Applicant, Ms Mercedes Ferguson, should be granted access to the National Disability Insurance Scheme (NDIS) and therefore be able to access NDIS supports.
2. In December 2023, the Chief Executive Officer of the National Disability Insurance Agency (the Agency) refused Ms Ferguson's request to access the NDIS, and she applied to the former Administrative Appeals Tribunal (AAT) to independently review the merits of the Agency's decision. In 2024, the Administrative Review Tribunal (ART) was established to replace the AAT, the AAT was abolished, and the application was transferred automatically to the ART[1].
3. Ms Ferguson is 27 years of age. She is a transgender woman (nee William). She lives in the outer suburbs of Perth in the family home with her mother and two brothers[2].
4. Ms Ferguson seeks access to the NDIS based on impairments arising from functional neurological disorder (FND)[3]. She was diagnosed with FND in August 2023[4] following some years of dissociative seizures. She has received some psychology and clinical Pilates treatment. She seeks access to the NDIS for the purposes of having supports for when she leaves the house. She is interested in a therapy dog that can monitor her seizures and help to bring her out of one[5].
5. This decision is, in essence, about whether Ms Ferguson has one or more impairments, being the loss of or damage to a physical, sensory or mental function, that are permanent or likely to be so, and of such severity that she meets the disability requirements in section 24 or the early intervention requirements in section 25 of the National Disability Insurance Scheme Act 2013 (the Act).
6. Whilst the Tribunal has found Ms Ferguson has a disability to which a neurological and/or psychosocial impairment is attributable, it has not found her impairment to be permanent, or likely to be permanent. Accordingly, the Tribunal has found Ms Ferguson does not satisfy the disability or early intervention requirements and as such, does not meet the access criteria in the Act.
7. How the Tribunal has reached its decision, including its procedure, the evidence it has considered, the facts it accepts and the law it has applied, are set out below.

1. To become a participant in and access the NDIS, Ms Ferguson must meet the access criteria in section 21 of the Act. This requires her to meet both the age and residence requirements in sections 22 and 23, and then either of the disability requirements detailed in section 24 or the early intervention requirements in section 25 of the Act.
2. It is accepted Ms Ferguson meets the age requirement as she was under the age of 65 when she made the access request. She is an Australian citizen and is resident in Australia at the time of this decision. She therefore meets the residency requirements in section 23 of the Act.

1. Sections 24 and 25 of the Act were amended after Ms Ferguson made the AAT application. However, those changes apply only to access requests made on or after 3 October 2024[6]. The Tribunal accordingly applies the disability requirements as they were immediately prior to those amendments and as set out below.
2. In summary, a person will meet the disability requirements if they have a disability that is attributable to an impairment that is permanent, or likely to be permanent, and that results in substantially reduced functional capacity requiring lifetime NDIS supports[7]. Section 24 of the Act states:

(1) A person meets the disability requirements if:

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

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

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

(i) communication

(ii) social interaction

(iii) learning

(iv) mobility

(v) self care

(vi) self management; and

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

(e) the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime.

(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.

(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require NDIS supports under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.

(4) Subsection (3) does not limit subsection (2).

1. The early intervention requirements may provide an alternative basis for meeting the access criteria where the person's permanent, or likely permanent, impairment does not result in substantially reduced functional capacity. The early intervention requirements consider the likely trajectory and impact of a person's impairment over time, and the potential benefits of early intervention supports on the impact of the impairment on the person's functional capacity[8]. Early intervention is envisaged to be particularly but not exclusively applicable to children.
2. Subsections 25(1) and 25(1A) relevantly state:

(1) A person meets the early intervention requirements if:

(a) the person:

(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent;

(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent;

(iii) is a child who has developmental delay; and

(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and

(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or;

(ii) preventing the deterioration of such functional capacity; or

(iii) improving such functional capacity; or

(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.

(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.

(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

(a) as part of a universal service obligation; or

(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

1. The Tribunal must apply the mandatory instructions for interpreting sections 24 and 25 that are contained in the NDIS (Becoming a Participant) Rules 2016 (the Access Rules). The Access Rules set out the circumstances in which, and the criteria the Tribunal must apply in assessing[9] whether:
   • impairments are or are likely to be permanent
   • any permanent impairments result in substantially reduced functional capacity in undertaking one or more activities; and
   • provision of early intervention support is likely to benefit the person.

Judicial Interpretation of the access criteria and disability and early intervention requirements

1. The Tribunal must apply the relevant jurisprudence of the courts in access matters. The Federal Court has provided jurisprudence on the pivotal concepts of impairment, permanency, functional capacity and early intervention supports.
2. As to the general principles to be applied, the courts have said that the purpose of the access criteria and section 24(1) is to impose a series of "components and thresholds" [10] to gaining access to the NDIS. Given the Applicant must satisfy every component in section 24(1), the Tribunal's approach is to consider whether each in turn is satisfied before progressing to the next. If the applicant fails to satisfy one, then she cannot meet the disability requirements, and the Tribunal must direct its attention to whether she meets the early intervention requirements. The components of section 25 are also cumulative, and each must in turn be satisfied.
3. The courts emphasise that the central concept in an access matter is "impairment"[11]. It is not the name of a person's disability or their medical diagnoses or conditions[12]. Impairment has been defined to generally involve the loss of or damage to a physical, sensory or mental function[13]. The Tribunal must determine the permanency and severity of an applicant's impairments[14], and the impact of those impairments on the applicant's ability to undertake multi-faceted life activities[15].
4. The distinction between a disability and an impairment is "important and indeed fundamental" to the access criteria[16]. A person's disability must arise from or be caused by the impairments they experience[17] and "maintaining a conceptual distinction between a disability or a condition on the one hand, and an impairment on the other, is crucial to enable a higher degree of specificity to be achieved in assessing a person's level of function"[18].
5. As to the requirement of permanency, the courts have said "permanent" means "enduring", reflecting the purpose of the scheme to deliver lifelong supports to people with disability[19]. Further, an impairment may be enduring even if it fluctuates, or it may fluctuate, during the person's lifetime, in its intensity and its impact[20].
6. When considering whether an impairment or impairments result in substantially reduced functional capacity, the Tribunal must make, with a relatively high degree of precision, a detailed, functional and practical assessment of what the applicant can and cannot do[21]. The Tribunal must assess the degree to which the applicant can participate in the life activity[22]. That assessment involves consideration of the full range of tasks and actions that comprise each of the life activity areas[23]. It would be incorrect to undertake this assessment in relation to only one or a few of such tasks[24]. It would also be incorrect to focus on what the person does not do, as opposed to what they cannot do[25].
7. The term "substantially" in this context carriers a "high threshold"[26]. Whether this high threshold is met should be considered with reference to the purposes of the NDIS, including that it was not intended to provide support to every person with disability, and ensuring the scheme is financially sustainable[27]. The NDIS has as its target group limited sub-categories of the total population of people with disability in Australia[28].
8. As to the early intervention requirements, it is a pre-condition of being able to satisfy the requirements in section 25(3) that the required early intervention supports be identified[29]. The Tribunal cannot speculate as to the early intervention supports an applicant might receive and reach views under section 25 based on hypothetical supports[30]. It follows that the evidence before the Tribunal must identify and reason in favour of the supports sought and their likelihood of reducing the applicant's need for future supports.
9. Regarding the Tribunal's approach to the evidence, it is required to engage in a fact-finding exercise and examine the evidence of medical practitioners, clinicians, the applicant and their supports[31]. It is for an applicant to provide the Tribunal with sufficient evidence and information or point to such information, to persuade the Tribunal that they meet the access criteria[32]. It is for the Agency to assist the Tribunal in its consideration of the evidence before it in making the correct or preferable decision[33].
10. Relevant jurisprudence concerning the Access Rules is discussed below.

1. The Tribunal must take into consideration[34], but is not bound by[35], the Agency's current policy guidance contained in NDIS - Applying to the NDIS Guideline (the Access Guideline). The Agency's Operational Guidelines are regularly updated and those relating to access requests received by the Agency before 3 October 2024 are relevant to this matter[36].

1. On about 18 September 2025[37], a few weeks after she was diagnosed with FND, Ms Ferguson made a request to the Agency to access the NDIS (the access request).
2. On 6 October 2023, the Agency refused the access request[38] (the access decision). The Agency gave few reasons in the decision record. It accepted Ms Ferguson had been diagnosed with FND. It appeared to accept Ms Ferguson had one or more neurological impairments to which a disability is attributable[39] though it did not define or characterise the impairment. The Agency did not accept, however, that Ms Ferguson's impairment arising from FND is, or is likely to be permanent[40]. It questioned the extent to which treatment options had been explored. Accordingly, it found that Ms Ferguson did not meet either the disability or the early intervention requirements[41]. The materials before it were a letter from August 2023 from Ms Ferguson's neurologist and the access request dated September 2023, completed by her GP.
3. On 10 October 2023[42], Ms Ferguson applied to the Agency for an internal review of the access decision. On 10 November 2023, the Agency wrote to Ms Ferguson noting it had only the two supporting documents on file and inviting further information[43].
4. On 5 December 2023, the Agency again determined not to grant Ms Ferguson access (the internal review decision)[44]. The internal review decision is the decision that is under review by the Tribunal.
5. In the internal review decision, the Agency confirmed its findings regarding section 24(1)(a) in the access decision[45]. It again did not accept the Applicant's impairments were permanent or likely to be so[46]. It reasoned that Ms Ferguson's neurologist had recommended in 2023 Ms Ferguson see a psychologist for cognitive behaviour therapy and that the evidence from the clinical psychologist demonstrated that such treatment had commenced only two months prior and was ongoing. For these reasons, the Agency concluded that all available treatment that would be likely to remedy FND had not been completed or become unavailable or unviable[47]. For these reasons, the Agency found Ms Ferguson did not meet the access or early intervention requirements. The Agency considered the same documents as it did for the access request and letter dated November 2023 from the Applicant's psychologist.
6. On 21 December 2023, Ms Ferguson applied to the Administrative Appeals Tribunal (AAT) for a review of the internal review decision[48]. Her application had been progressing unsuccessfully through alternative dispute resolution until 29 December 2024, when it was constituted for hearing and final determination. The Tribunal is satisfied the application to the AAT is valid and the ART has jurisdiction to determine it[49].

1. On 14, 15, 16 May and 11 July 2025, the Tribunal conducted a four-day video hearing by MS Teams. Ms Ferguson represented herself with her mother and brother attending as support people. The Agency was represented by Ms Julia Davey as counsel and instructed by Moray and Agnew Lawyers. The Applicant participated from the Tribunal's Perth hearing rooms. Hearing days were shortened to 9:30 am to 2 pm Perth time to as a reasonable adjustment to the Applicant's disability, running longer on Day 1 with the agreement of Ms Ferguson. Evidence was taken on the May hearing dates and the parties returned on 11 July 2025 for closing submissions. The Tribunal was advised at the end of Day 1 the Applicant had not notified her witnesses of the hearing. She then made efforts to secure their availability, and the Tribunal operated a fluid hearing program, taking evidence first from the Respondent's occupational therapist and then from the Applicant's witnesses as they became available.
2. On 7 January 2025, the Applicant requested an extension of time from 24 January 2025[50] until 24 February 2025 to file any further evidence in support of her case as she had not commenced gathering evidence due to herself and her family being unwell. The Applicant had previously been directed to file evidence by April 2024. The Applicant also requested that targeted questions be issued by the Agency to her treating practitioners to assist her with evidence gathering. The Tribunal granted the Applicant's extension request and a commensurate extension to the Agency to file its evidence and arguments, to 24 March 2025. The parties subsequently jointly tendered into evidence responses to targeted questions issued to Dr Kuhilan Gounder and Mr Anthony Quinn and a report from Ms Rachel Andrews, filed on 14 March 2025. No extension of time was sought by the Applicant.
3. On 31 January 2025, the Agency filed requests to the Tribunal to issue any further summonses to six of the Applicant's treating practitioners, as noted below. The Tribunal has powers under section 74 of the ART Act to summons a person to produce any document, either at the request of a party to a proceeding or of the Tribunal's own initiative. In this matter, the summonses were issued at the Agency's request. Documents were returned and inspection commenced to the Applicant on 18 March 2025 and the Agency on 1 April 2025. The Tribunal extended the pre-hearing timetable accordingly. Summonses to the five of the six practitioners had been issued at the Agency's request in July 2024 and documents returned and provided to the Applicant and Agency in July and August 2024 respectively.
4. On 14 April 2025, the Agency requested and was granted a further extension of time to file a statement of facts, issues and contentions (SoFIC), from 11 to 23 April 2025.
5. On 30 April 2025, the Agency filed a SoFIC. No extension of time was sought or reason offered for the non-compliance. A commensurate extension of time was accordingly requested and granted to the Applicant to file a Reply, by 12 May 2025. Within the SoFIC the Agency state they have arranged for an assessment on the papers by Mr Brenton Fielke, an occupational therapist, but the report is not yet available. No further information was provided about the requested assessment or extension of time sought by the Agency to file further evidence.
6. On 5 May 2025, the parties requested and were granted a further extension of time to file the joint tender bundle and witness schedule, until 7 May 2025.
7. On 8 May 2025 the Agency filed a "Respondent's Joint Tender Bundle", including approximately 950 pages of documents returned under summons which purported to be filed on neither parties' behalf. On 8 May 2025, the Tribunal wrote to the Agency asking for the bundle to be reviewed and resubmitted with only the materials the parties were relying on. The Tribunal granted the Agency's further request for an extension of time to file a list of authorities to 9 May 2025 and noted that the joint witness schedule also remained outstanding.
8. On 9 May 2025[51], the Tribunal received a joint witness schedule and two new tender bundles from the Respondent, separating the previously filed evidence from the documents returned under summons. The documents contained in the latter were otherwise unchanged. The Agency enclosed a list of authorities. On 12 May 2025, the Agency further updated the separate bundle of summonsed documents by adding an index.
9. On 12 May 2025, the Applicant filed an undated and unpaginated reply titled "Letter for Tribunal" (Reply). In her covering email, the Applicant's then representative, Midlas Disability Advocate, Ms Emma White, confirmed her representation of the Applicant had ceased. Ms White had indicated at a Tribunal event in January 2025 she was not permitted to represent Ms Ferguson at hearing. Her withdrawal was therefore anticipated. Ms Ferguson's Reply refers the Tribunal to three academic articles that were not enclosed.
10. On 12 May 2025, the Agency filed a report on the papers by Mr Brenton Fielke. No explanation by the Agency for the non-compliance was offered.
11. Several iterations of tender bundles were given to the Tribunal. At the commencement of the hearing, the Tribunal took into evidence the second version of the joint tender bundle (JTB) filed with the Registry at 7.30 pm on 9 May 2025, being the most recent version filed by the parties prior to the start of the hearing and therefore the version upon which the Tribunal relied to prepare for hearing. This bundle contains only the T-documents and evidence obtained by the parties during proceedings and filed with the Tribunal prior to then[52].
12. The separately indexed bundle of documents returned under summons filed on 12 May 2025 was not admitted into evidence but worked from by the parties and the Tribunal during the hearing. Ms Ferguson agreed she would review the bundle at the end of each hearing day and advise the Tribunal at the start of each day's proceedings of any documents she had identified for the Tribunal's attention. The Tribunal observed Ms Ferguson to be knowledgeable about the summonsed documents, adept at navigating the bundle during the hearing and notes her possession of them for between two and 10 months prior to the commencement of the hearing. At the opening of Day 2, Ms Ferguson advised the Tribunal she had started looking at the bundle. To simplify the task, the Tribunal directed Ms Ferguson to email the Registry by the end of the hearing a list of page numbers she wished the Tribunal to have regard to. No correspondences from Ms Ferguson to this effect were received by the Tribunal.
13. The letters, reports, clinical records and academic papers the Tribunal took into evidence during the hearing are identified by their name and date. Page numbers from the summons bundle filed 12 May 2025 are referenced where required.
14. The Tribunal heard evidence from the following witnesses:

(a) Ms Ferguson, the Applicant (Day 1)

(b) Ms Ferguson's current neurologist, Dr Kuhlian Gounder, at Midland Hospital (records summonsed) (Day 3)

(c) Ms Ferguson's current GP, Dr Mike Civil, Stirk Medical (records summonsed) (Day 3)

(d) Agency's Occupational Therapist, Mr Brenton Fielke (Day 2)

1. Mrs Robyn Ferguson, Ms Ferguson's mother, was also listed as a witness. The Tribunal allowed for a flexible approach in which Mrs Ferguson added to Ms Ferguson's responses to questions during her evidence. Mrs Ferguson confirmed that as she had been able to do so she did not need to be called separately as a witness.
2. Closing submissions were made by the parties on Day 4. An 8-week adjournment was required due to the Applicant's family circumstances.
3. The Applicant relies on documents prepared by other practitioners, including her:

(a) Current[53] psychologist, Ms Rachel Andrews, Psychology on Hay (records summonsed)

(b) Previous psychologist, Dr Jarred Munro, Solutions Health Psychology (records summonsed)

(c) Current physiotherapist, Mr Anthony (Mozz) Quinn, Complete Wellness Physiotherapy (records summonsed)

(d) Assessing occupational therapist Holly Mynott, Lifeworks Occupational Therapy (records summonsed)

1. It is not in contention between the parties that the Applicant meets the requirements of section 24(1)(a) of the Act. They agree she has a neurological impairment arising from the diagnosis of FND. Neither party further articulates the impairment.
2. Ms Ferguson contends her neurological impairment is permanent and substantially reduces her functional capacity in the activity areas of communication, learning, social interaction, mobility and self-management. She does not claim it reduces her capacity to carry out self-care. She argues she is likely to require support under the NDIS his lifetime because her impairments are permanent.
3. The Agency does not accept the Applicant's impairment is permanent. It contends Rules 5.4 and 5.6 of the Access Rules and the requirement that the impairment be, or is likely to be, enduring in nature, are not met. It does not accept Ms Ferguson has substantially reduced functional capacity in any of the six activity areas, that her impairment affects her capacity for social and/or economic participation or that she is likely to require support under the NDIS for a lifetime[55].
4. Ms Ferguson contends in the alternative to meet the early intervention requirements in her pre-hearing submissions but does not give reasons[56]. The Agency contends[57] the Applicant does not satisfy any of the requirements of section 25 of the Act.

Section 24(1)(a): Does the Applicant have a disability that is attributable to an impairment?

1. Dr Ewen McLean at Stirk medical clinic (Stirk) is the GP who completed the access request[58]. He states Ms Ferguson has only one disability, FND, which has been affecting her for 8 years. Other than "attacks" and "episodes" in which Ms Ferguson "shuts down" Dr McLean does not more clearly identify impairments or identify other symptoms arising from FND. He does not identify physical impairments or symptoms.
2. Ms Ferguson explained that she has been attending Stirk since she was a child. Dr Mike Civil is Ms Ferguson's principal GP at the practice. Dr Civil did not produce reports or letters for the purposes of the proceedings but did give oral evidence at hearing. He accessed during the hearing and spoke at length to Ms Ferguson's clinical records. Doctor Civil has been working as a GP since approximately 1992 and Stirk since 2000. He has been Ms Ferguson's GP for approximately 5 years. She has attended the practice approximately monthly over that time.
3. Dr Civil said he has primarily treated Ms Ferguson for dissociative seizures secondary to a diagnosis of FND. The earliest reference to seizures and possible epilepsy was in May 2018 when Ms Ferguson attended with her father being concerned about experiencing Déjà vu. She was referred to Midland Hospital. An EEG recorded minimal abnormal activity. In 2019 Ms Ferguson was diagnosed with having seizures of unknown cause. She was also seen then for irritable bowel syndrome and gender dysphoria.
4. Dr Civil has treated Ms Ferguson for depression and anxiety. She has had mental health care plans on a reasonably regular basis since 2015. He stated Ms Ferguson's anxiety was increased by not knowing the cause for some years for the seizures, their unpredictable nature and trying to get support to help her live and work with them. Dr Civil said there was no recent comment on file about the frequency of the seizures.

1. Dr Kuhilan Gounder is the neurologist who has been treating Ms Ferguson since approximately 2022 through the Outpatient Neurology Clinic at St John of God Midland Public Hospital (Midland Hospital)[59]. He has been a consultant neurologist for approximately four years and states he encounters FND as a relatively regular presentation in the clinic. Ms Ferguson was previously seen by Dr Thomas Chemmanam at Midland.
2. The Tribunal has a letter and three reports from Dr Gounder covering the period August 2023 to February that 2025 have been separately indexed in the JTB. Additional materials obtained under summons issued to Midland Hospital were taken into evidence and are identified as relied upon below.
3. Ms Ferguson has been attending the Midland Neurology Clinic in response to unexplained seizure activity since approximately 2018[60] or 2019[61]. Dr Gounder states in his support letter dated 5 March 2024 (Gounder March 2024 support letter)[62] that Ms Ferguson has likely had functional symptoms since 2015, or about the age of 15. He stated at hearing this opinion was based on self-reporting by Ms Ferguson, and treatment did not begin until 2019. The Tribunal found through Ms Ferguson's oral evidence that she tended to self-diagnose[63]. The reliability of Dr Gounder's evidence is further discussed below, in the Tribunal's consideration of permanency.
4. In a report to Ms Ferguson's GP dated 5 July 2019, Dr Chemmanam states the episodes have a duration of "one to two minutes after which there is a gradual recovery within a few minutes". After some of the episodes she becomes tired. The longest episode is up to 30 to 40 minutes. "Some of these episodes are precipitated by bright lights, especially when she travels in a car at night-time".
5. In a clinical note dated 1 February 2022, Dr Chemmanam reports to Dr Civil that Ms Ferguson "gets random episodes which can be sometimes in clusters a few episodes in a week and sometimes she can go up to three months without any episodes". There is no reference to physical symptoms.
6. In a clinical note dated 11 August 2022, Dr Gounder reports Ms Ferguson's symptoms have not changed and she continues to experience four or five seizures a week in which she is unaware. "Her seizures are often exacerbated by bright lights or dappled light".
7. In a letter dated 23 February 2023 (Gounder February 2023 letter), Dr Gounder writes to Dr Civil that Ms Ferguson underwent a two-day ambulatory EEG on 17 October 2022. "She had a few episodes of her typical symptoms during the recording". He does not explain further. He opines:

Mercedes has seizures however it remains unclear if they are due to epilepsy or functional neurology... The ambulatory EEG report is still pending however the preliminary result indicates an essential normal study... [T]his would point to the seizures being due to a functional neurological disorder.

1. In August 2023[64] (Gounder August 2023 letter), Dr Gounder diagnosed Ms Ferguson with FND. He does not describe FND, how he reached his diagnosis beyond excluding other neurological causes. He does not describe the ways in which FND impairs and impacts Ms Ferguson. In letters dated March 2024 and July 2024, Dr Gounder similarly does not identify impairment(s) or symptoms. He reports Ms Ferguson's "symptoms continue to reduce in frequency", noting she attributed this to wearing polarised sunglasses outside and the stress of not having to work or study. He confirmed at hearing his impression at this time they had reduced.
2. In February 2025, in response to targeted questions from the Agency and being asked to detail Ms Ferguson's impairment and symptoms from FND, he writes (Gounder February 2025 letter)[65]:

Ms Ferguson has had non-epileptic seizures since the age of 15. Her episodes are characterised by a dry mouth, clamminess, and dissociation, followed by reduced awareness or loss of consciousness. Behaviour arrest and rapid eye blinking has also been observed. The episodes usually last for one to two minutes, but they have lasted for up to 40 minutes. She is fatigued after the events. She has multiple events a week and they are unpredictable.

Apart from the non-epileptic seizures she frequently drops objects and has difficulty with balance.

1. The Tribunal observes that the above description of seizure symptoms repeats details recorded in Dr Chemmanam's 5 July 2019 letter, written some six years earlier. That letter does not comment on motor symptoms, however.
2. Dr Gounder states Ms Ferguson has reduced grip strength and impaired balance. He does not explain how he reached findings about Ms Ferguson's motor symptoms in this letter. The Tribunal understands they are based on Ms Ferguson's self-reports. There is no evidence Dr Gounder conducted medical testing or examination of any claimed motor symptoms of Ms Ferguson's FND.
3. Dr Gounder gave evidence at hearing. He was asked questions about the motor symptoms of reduced grip strength, tremors and balance. He stated that "in terms of his assessment there is a level of difficulty with balance, grip strength that is always present but does fluctuate in severity". Dr Gounder was not able to advise the Tribunal about the current or recent frequency of Ms Ferguson's dissociative episodes but confirmed his opinion they have been reducing. The Tribunal has taken into consideration that Dr Gounder was not expecting to appear as a witness as he did. Still it found him to be talking around the symptoms that went beyond the seizures. It was not persuaded Dr Gounder had really turned his mind to these issues.

1. Ms Holly Mynott is the occupational therapist who has assessed Ms Ferguson. Documents and Ms Ferguson's oral evidence confirm Ms Mynott conducted three assessment appointments with Ms Ferguson, on 22 February 2024, 4 April 2024 and 14 February 2025. These were conducted in her treatment rooms and are accordingly limited by that environment[66]. Each appointment is accompanied by a typed clinical note. The assessment was partially funded by Ms Ferguson, with rebates from her private health insurer and Medicare under the Chronic Disease Management program[67] to which she was referred by her GP, Dr Michael Civil. There is no comprehensive functional assessment before the Tribunal that was conducted of Ms Ferguson according to best practices in her home. Ms Mynott does not state if she was asked to and conducted a document review.
2. In her 22 February 2024 clinical note (Mynott February 2024 note), Ms Mynott observed Ms Ferguson to demonstrate normal hand range of motion, nil hypermobility but bilateral reduced hand strength. In her 4 April 2024 clinical note (Mynott April 2024 note), Ms Mynott records observed difficulties with Ms Ferguson's balance.
3. Ms Mynott reports on 9 April 2024[68] to Dr Civil (Mynott April 2024 report) that she had conducted two functional assessment appointments with Ms Ferguson in her treatment rooms.
4. Ms Mynott reports on 9 April 2024[69] to Dr Civil (Mynott April 2024 report) that Ms Ferguson experiences "dissociative seizures, chronic fatigue, difficulty standing, dizziness, tremors in lower limbs and hands, hypersensitivity to light, dystonia in lower limbs while lying in bed for sleep". The Tribunal deduces from the documents and Ms Ferguson's oral evidence that these symptoms are derived from information reported by Ms Ferguson as part of the assessment process. They were not observed by Ms Mynott.
5. Ms Mynott notes Ms Ferguson is left-handed and has reduced wrist flexion due to a wrist fracture in 2012. Ms Ferguson has difficulty opening jars and holding items, frequently drops items and knocks things over.
6. Ms Mynott reports she conducted MoCA, DASS-21 and WHODAS assessments. Ms Ferguson's MoCA result was 29/30 and assessed as no cognitive concerns. Her DASS-21 results were mild depression, severe anxiety and normal stress.
7. In a report dated 14 February 2025 (Mynott February 2025 report)[70], Ms Mynott repeats the symptoms listed above and states Ms Ferguson reported no new symptoms had emerged and that her condition had not worsened since her last assessment in April 2024. Ms Ferguson reported to Ms Mynott having on average FND episodes "3-4 times per month, fluctuating with levels of stress and other factors".
8. Ms Mynott's report is focused on an assessment of functional capacity against the criteria in section 24(1)(c). Ms Mynott does not directly address the domain of "mobility" but addresses all others. She states Ms Ferguson reported a decline in working memory, however Ms Mynott was unable to formally assess this and did not note any changes from her observations. In her clinical note for the session (Mynott February 2025 notes), Ms Mynott records under "presentation" that Ms Ferguson's thought stream and cognition were within normal limits and she observed "no mobility challenges".
9. Mynott February 2025 report is addressed to the Tribunal and states it was prepared in accordance with her duty to provide impartial assistance to the Tribunal. However, it was not lodged with the Tribunal by the Applicant in accordance with the Tribunal's directions. The Tribunal took the report into evidence at the commencement of the hearing.
10. Ms Mynott did not give evidence at hearing.
11. Mr Brenton Fielke is the occupational therapist engaged by the Agency to produce a report based on the papers[71]. Mr Fielke prepared a report dated 8 May 2025 which was taken into evidence with the agreement of Ms Ferguson at hearing. He did not conduct an independent occupational therapy assessment of Ms Ferguson.
12. Mr Fielke identifies the same symptoms as Ms Mynott noting they are present only for a short time of 1 minute to 30-40 minutes following a dissociative episode. He identifies in addition tremors in lower limbs and hands, hypersensitivity to light and fatigue as generally present but worse following an FND event.
13. As to the frequency and severity of Ms Ferguson's seizures, Mr Fielke opines:

The regularity of these is reported inconsistently in the supplied documentation ranging between multiple episodes a week to 3-4 episodes a month. Episodes appear to last approximately 1 to 30-40 minutes during which Ms Ferguson experiences significantly reduced communication and decreased physical capacities... She returns to baseline function after this relatively quickly with rest (within hours).

1. The Tribunal observes that as Mr Fielke's report is largely a summary of the content of the documents he has read. He has not engaged in a critique of that information other than identifying inconsistency in the reported frequency and severity of dissociative seizures. Therefore, any unreliability in the documents he has considered is carried through to his report. For example, Mr Fielke's report states Ms Ferguson presently requires supervision when accessing the community. At hearing, Mr Fielke clarified this statement is a summary of what was reported by Ms and Mrs Ferguson. Mr Fielke's opinion is Ms Ferguson's challenged function is accessing the community and that she can access the community independently with minor equipment and communication strategies in place.

1. Mr Jarred Munro is the clinical psychologist to whom Ms Ferguson was referred by Dr McEwan in October 2023 for assistance with managing physical and psychological symptoms of the condition. He wrote a support letter dated April 2024[72] (Munro April 2024 letter). He identifies Ms Ferguson has dissociative seizures from the condition. He does not detail the psychological symptoms. In his clinical noted from 10 April 2024 (Munro April 2024 note) he records Ms Ferguson as having two dissociative seizures in the last four weeks. One lasted 15 minutes.
2. Mr Munro did not give evidence at the hearing.
3. Ms Rachel Andrews is the clinical psychologist who has been treating for a range of psychological difficulties since 2017. Ms Andrew prepared a letter to the Tribunal dated 13 March 2025[73] (Andrews March 2025 letter). Ms Andrews does not express a duty to be impartial for the Tribunal. She states that her treatment has involved advocacy for Ms Ferguson in the "NDIS application legal process" and is critical of the Agency for causing harm to Ms Ferguson by rejecting her application. Given her advocacy status, the Tribunal takes a cautious approach to giving weight to Ms Andrew's opinions that are without corroboration from other experts.
4. Ms Andrews reports Ms Ferguson as having described symptoms of "focal seizures, fugue states, fatigue, cognitive impairment, limb tremors, eye twitching, slurred speech and inability to communicate, sensory sensitivity and sensitivity to stress". The basis for her conclusions are not stated however the Tribunal understands they are Ms Ferguson's self reports.

1. Mr Anthony (Mozz) Quinn is the physiotherapist who is treating Ms Ferguson with clinical Pilates. Ms Ferguson told the Tribunal she receives this treatment to manage her tremors, reduced limb and hand strength. Ms Ferguson attended Mr Quinn for an initial assessment in November 2024[74]. In February 2025, Mr Quinn writes Ms Ferguson is attending clinical Pilates for management of her FND condition and symptoms of hypermobility, decreased balance, decreased spatial awareness and muscle strength. Her symptoms will be reviewed periodically. He concludes Ms Ferguson "will need to attend clinical Pilates on a long-term basis, to maintain her mobility and physical health". He says she needs "long term rehabilitation". There is no mention he is treating issues with grip strength.
2. There is no record from Ms Ferguson's treating professional recommending clinical Pilates treatment. Further, the Tribunal could not locate mention in the clinical records from Ms Andrews of this treatment being raised by Ms Ferguson. The Tribunal observes Ms Andrews notes often records Ms Ferguson's comments about things she finds benefit from. Neither clinical Pilates nor physiotherapy was brought up by Dr Civil in his extensive summary of Ms Ferguson's clinical records. It is not recommended by Dr Gounder.
3. The Tribunal issued a summons to Mr Quinn however there are no clinical records from him that have been brought to the Tribunal's attention.
4. There are no records before the Tribunal of the diagnostic tests conducted by Mr Quinn. His qualifications as a physiotherapist and his expertise in FND are unknown.
5. Mr Quinn's opinion that Ms Ferguson has hypermobility is inconsistent with Ms Mynott observations. His concern for her mobility is inconsistent with the balance of the evidence before the Tribunal. His opinion that Ms Ferguson must engage in clinical Pilates long term lacks credibility.
6. Ms Ferguson told the Tribunal she was recommended to Mr Quinn by Ms Mynott and to undertake physiotherapy as an alternative to occupational therapy. Ms Mynott's report cited below does not support that view. The Tribunal found Ms Ferguson's evidence about her engagement in treatment with Mr Quinn to lack transparency.
7. Mr Quinn did not give evidence at the hearing to address these concerns. The Tribunal gives no weight to his letter.

1. Ms Ferguson did not provide a statement in support of her access and internal review requests.
2. Ms Ferguson provided an undated statement in support of this proceeding[75]. She states:

(a) She "occasionally suffer[s] from spontaneous dissociative seizures that cannot happen for several weeks on end and then I have multiple in one day".

(b) In 2015 she developed severe limb weakness and leg tremors accompanied by fatigue. In hindsight this appeared as a typical symptom of FND

(c) In 2018-2019, during university she was diagnosed with irritable bowel syndrome and salmonella poisoning. Her seizures worsened in severity and frequency

(d) She can walk "the normal human amount" without needing to take a break

(e) "FND can cause issues in my balance and I may wobble or bump into things as I walk but I rarely fall down because of this"

(f) She used public transport two to six times a week when attending university

(g) She cooks. The reason she does not do gardening is because she is too busy

(h) She cannot drive because of her seizures.

1. Ms Ferguson told the Tribunal she did not keep a journal or other record about her seizures. The last record she was able to cite was a period of a fortnight in late 2023.
2. At hearing Ms Ferguson's firm view was that she had been living with FND since the age of 15 or 16. This was particularly because she had symptoms of fatigue at that time. She stated these views were based on her reading of the research study literature.
3. Ms Ferguson described at hearing having symptoms of seizure involving loss of focus and ability to communicate and track of time. Outside of the seizures, the more consistent symptoms are reduced working memory, reduced grip strength, balance, tremors and weakness in her arms and legs.

1. Mrs Ferguson provided one statement to the Tribunal, dated 20 March 2025[76] (March 2025 carer statement). She describes Ms Ferguson's history of ill health as starting in 2015 with acute appendicitis leading to reduced energy and leg tremors. These increased to blackouts as the most regular symptom, impaired balance, reduced gross motor skills, reduced hand grip and slurred speech accompanying an episode, poor memory and impaired cognitive reasoning and decision making. She states Ms Ferguson's hands are particularly bad.

1. The Tribunal has referred to the academic research papers provided by Ms Ferguson and the paper from Nicholson et al provided by the Tribunal[77]. FND is noted to be at the interface of neurology and psychiatry and a neuropsychiatric disorder[78]. Additional physical and mental health diagnoses, such as fatigue and bowel disorders are often comorbid or earlier occurring conditions[79]. Yong et al explains FND is a disorder largely defined by its symptoms of altered voluntary motor or sensory function without other neurological explanation[80].
2. The Tribunal is satisfied Ms Ferguson has a medical diagnosis of FND characterised especially by the presence of functional seizures.
3. The Tribunal finds that at the time of the hearing, Ms Ferguson experienced on average two to four seizures a month of variable intensity.
4. Regarding motor symptoms of FND the Tribunal accepts Ms Ferguson experiences leg and hand tremors. It accepts that when Ms Ferguson experiences a dissociative seizure it may be accompanied by slurred speech, poor balance, reduced cognition, lower limb weakness and fatigue. The Tribunal does not accept Ms Ferguson has other physical, cognitive or mental impairments or symptoms such as muscle weakness that endure beyond an FND episode and derive from FND. The Tribunal has no comprehensive clinical assessment of Ms Ferguson's motor capabilities beyond what Ms Mynott could achieve in her treatment rooms and these are contradictory regarding mobility. There is also insufficient evidence to exclude other causes such as Ms Ferguson's sedentary lifestyle and previous left fracture.

1. It is by no means clear cut that Ms Ferguson has one or more impairments that meet the criteria in section 24(1)(a) of the Act. Functional seizures are infrequent, their intensity is unknown but the evidence suggests they are usually short with no after-effects. Nonetheless, the Tribunal gives weight to the evidence that they do still occur and that remission may not be a linear process.
2. The Tribunal is satisfied Ms Ferguson has a disability attributable to a neurological and/or psychosocial impairment characterised by the presence of dissociative seizures which may be contemporaneously accompanied by slurred speech, poor balance, cognitive impairment, lower limb weakness and fatigue. It is satisfied Ms Ferguson experiences limb tremors.
3. Accordingly, Ms Ferguson satisfies the disability criteria in section 24(1)(a) of the Act.
4. The next question is whether the impairment is permanent.

Section 24(1)(b): Are the Applicant's impairments permanent or likely to be permanent?

1. Access Rules 5.4 to 5.7 set out the mandatory criteria the Tribunal must consider in determining whether an impairment is, or is likely to be, permanent.
   • 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. The courts have said that rules 5.4 to 5.7 prescribe circumstances in which an impairment is, or is likely to be, permanent.[81] Further, that rules 5.4 and 5.6, whilst appearing to be framed in positive language, are in substance exclusionary[82]. That is, the Tribunal must consider "a negative state of fact" and be positively satisfied that neither of the exclusionary circumstances in these two rules apply[83]. In the case of rule 5.6 it must be satisfied that an impairment does not require further treatment or review for its permanency or likely permanency to be established[84].
3. Importantly, even if Ms Ferguson can overcome the exclusions in rules 5.4 and 5.6, the Tribunal must still be positively satisfied as to the permanence of the impairment within the meaning of section 24(1)(b)[85].
4. As to the meaning of the adjectives in rule 5.4, Mortimer J in Davis observed[86]:

(a) "remedy" "should be understood to mean something approaching a removal or cure of the impairment" and "more than just relieve or improve"[87] > > (b) the word "known" connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment"[88] > > (c) the word "appropriate" "connotes a treatment which has a capacity to "remedy" the impairment and is suitable for the particular individual concerned to undergo"[89] > > (d) the word "available" "should be understood as directed at what treatments an individual can, in reality, access"

5. Rules 5.5. and 5.7 may not apply in all cases. Their relevance depends on the facts of the matter. The Tribunal observes that rule 5.5 is relevant to Ms Ferguson's impairment. The evidence before the Tribunal is consistent that her impairment is not degenerative and therefore rule 5.7 does not require further consideration.
6. In relation to whether an impairment is likely to be permanent, the Access Guideline reflects the jurisprudence of the courts and relevantly states:
   • We need to know whether your impairments are enduring so that you require NDIS supports on an ongoing basis.
   • We will focus on your impairments, and not on the cause of your impairments, or your diagnoses.
   • Even when your condition or diagnosis is permanent, we'll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, or if there are known, available and appropriate evidence-based clinical, medical or other remaining treatments options that are likely to remedy the impairment.
   • Generally, we'll consider whether your impairment is likely to be permanent if all available and appropriate treatment options are pursued.
   • Your impairment will likely be permanent if your treating professional tells us there are no further treatments that could remedy it.
   • Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments that are:
     • known - the treatment can be identified by an Australian medical practitioner as a suitable treatment for your impairment
     • available to you - we need to take account of whether there are genuine barriers that prevent you from accessing treatment including, but not limited to, the nature of your impairment and your ability to access treatment
     • appropriate for you and your impairment - we need to consider whether the treatment could remedy your impairment and is suitable and safe for you to undergo. Your ability to undergo treatment will be assessed according to your capabilities, your health and other personal circumstances, including your living arrangements
     • evidence-based - there's proof the treatment is likely to be effective.
   • When we look at what treatments are available to you, we think about whether the treatment is suitable for your personal situation. The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle.
   • If you're still undergoing or have recently had treatment, we may not be sure you have a permanent impairment if that treatment could remedy the impairment.
   • In some situations, it may be clear your impairment is likely to be permanent while you're still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it's clear you are likely to have a permanent impairment.
7. The Tribunal notes that the focus of Rules 5.4 and 5.6 is on medical and clinical treatment. These statutory provisions require the Tribunal to consider what treatment is available and suitable and if so, the likely outcomes of the Applicant undertaking it. Consideration of any treatment Applicant has had to date for her impairment is integral to that assessment. This is emphasised by references to the importance of information from treating professionals in the above extracts from the Access Guideline.

Assessment of permanency: the Applicant's physical impairments

1. The issue of permanency is contested in this matter. Much of the contention between the parties concerns whether the Tribunal can be positively satisfied there no are known, available and appropriate treatments that would be likely to remedy Ms Ferguson's impairment[90]. As a matter of fact, an examination of the treatment recommended and engaged in, is required. Ms Ferguson contends she has engaged in the psychological and physical treatments recommended by her neurologist, supported by the academic literature she relies upon and to the extent she can afford[91].
2. As a preliminary matter, the parties have directed the Tribunal to the decision in Colefax v National Disability Insurance Agency[92], in which the Tribunal accepted the applicant in that case, who had been diagnosed with FND, satisfied the requirements of section 24(1)(b) of the Act, and ZJSG and National Disability Insurance Agency, where the opposite conclusion was reached. The Tribunal observes the AAT's decisions in those matters are decisions on the facts before the AAT, the Tribunal in this matter must decide it on the facts as it finds them and the decisions in Colefax and ZJSG are not binding on the Tribunal.

1. In the Access request, Dr McLean identifies antidepressants and blue light filtering glasses as current treatment. Dr McLean also identified cognitive behaviour therapy (CBT) as likely to substantially relieve the impairment.
2. Dr Civil explained his role is to oversee Ms Ferguson's treatment, provide appropriate referrals to ensure holistic treatment, support her through whatever management is being advised and recommended by the specialists and try to address any queries she may have about the diagnosis or the treatment.
3. Regarding treatment of FND, Dr Civil confirmed that Dr Gounder had not detailed treatment in his August 2023 letter. He noted that the treatment regime is that advised to him by Dr in December 2024, being a medication regime of venlafaxine, an antidepressant, for treating anxiety and depression, hormone treatment, medication for gastric issues and psychology services. He advised there was currently no other allied health treatment prescribed for Ms Fergson. Dr Civil said that in summary the most important features of her FND treatment would be supportive care from GPs and clinical psychologists, reviewing symptoms and working through symptom control going forward.
4. Dr Civil said having clarity in the diagnosis is very reassuring and helpful in moving forward and adjusting to the diagnosis. He was aware Ms Ferguson was finding the NDIS access process stressful and unrelated family circumstances were also causing stress. The impact of the seizures is that it is difficult for Ms Ferguson to travel, for instance use public transport, due to anxiety and that aggravating the seizures. He was not able to tell the Tribunal more about the recent frequency of the seizures and their impact because there were other matters of concern being raised by Ms Ferguson in her appointments.
5. Regarding Ms Ferguson's psychology treatment and his knowledge of the nature of that treatment or its purpose being directed to FND and any particular outcomes, Dr Civil referred the Tribunal to Ms Andrews March 2025 letter, and noted the emphasis on the increase in recent stressors, including applying for the NDIS and significant health issues within the family. He notes the reference to an associated increase in anxiety and depressive symptoms and the delivery of CBT, stress management and supportive psychotherapy. Of note to the Tribunal is the absence of reference, including positive reference, to the FND diagnosis and treatment focused on FND recovery and remission of FND symptoms. He noted Ms Andrew's reinforcement of the benefit of ongoing treatment due to recent stressors. Again, FND is not mentioned.
6. Dr Civil was not aware of any reason as to why Ms Ferguson has stopped seeing Mr Munro. He did not know if Ms Andrews had a specialisation in FND.
7. Regarding the GP management plan, Dr Civil noted Dr Gounder's comment that Ms Ferguson was seeing an OT. He was not aware as to whether it was to do with mobility issues secondary to FND or unrelated to FND.

1. Ms Ferguson told the Tribunal that upon confirming her diagnosis, Dr Gounder recommended she continue seeing a psychologist to engage in stress management, which is through the CBT and to see an occupational therapist and a physiotherapist.
2. Asked about his role in her treatment for FND, Ms Ferguson stated Dr Gounder recommends treatments and monitors their progress.
3. In his letter dated 5 March 2024 (Gounder March 2024 letter)[93], Dr Gounder states:

Treatment of functional neurological disorder involved education about the diagnosis and physical and psychological therapy including psychology and occupational therapy. Studies have shown that symptoms persist in the large majority of those with functional neurological disorder. A multidisciplinary care can help to improve or optimise physical and psychological symptoms.

Mercedes has been engaged in learning about her diagnosis and with the management of it. She has been compliant with treatment. I do not feel that she needs to engage with additional treatment modalities.

1. The Tribunal asked Dr Gounder to take it through the treatment he had been recommending for Ms Ferguson. Dr Gounder explained the first step is education due to the complex nature of the diagnosis and noted Ms Ferguson's proactive approach. Therapies most likely to improve function were then recommended, adding "psychology and physiotherapy were thought to be most appropriate".
2. Asked again to take the Tribunal through his recommended treatments and his assessment about Ms Ferguson's participation in and the effectiveness of those treatments, Dr Gounder stated his opinion was very much based on what he is advised by her as he does not receive correspondence from the therapists.
3. Dr Gounder told the Tribunal that from what Ms Ferguson tells him, she is engaged in her physiotherapy and psychology. Noting that Dr Gounder had recommended in his March 2024 letter that treatment include occupational therapy, the Tribunal asked him whether his recommendations regarding treatment had changed. Dr Gounder replied that he had misunderstood the question. The Tribunal found this response unconvincing. Dr Gounder then reiterated his recommendation of occupational therapy to optimise day to day function and of cognitive behaviour therapy from a psychologist experienced in FND. He did not answer the Tribunal's question about effectiveness and offered no view about outcomes to date. He said he left the specifics of the therapy to the therapists and that his focus is on diagnosis and education. Dr Gounder did not persuade the Tribunal he had a goal of remitting Ms Ferguson's FND or reducing her seizures.
4. Asked about Ms Ferguson's engagement in occupational therapy and whether he was aware she had not undertaken occupational therapy treatment, he responded obtusely that his records showed "she had seen an occupational therapist who provides strategies to optimise function but not a regular therapist".
5. Dr Gounder confirmed that his recommendation Ms Ferguson did not need to engage in additional treatment modalities was based on his assumption she had been compliant with occupational therapy and psychology treatment.
6. Dr Gounder opined it is unlikely for the treatment to result in all the symptoms resolving. He stated that treatment may help regain neurological function "but I suspect that there will be some persistent symptoms for some time give that it has been a few years now since the diagnosis and receiving some therapy. But it is difficult to say". He said that for each individual, the prognosis is different and he could not put a timeframe on it. He stated the studies show 40% to 50% of people have persisting symptoms. He did not offer any further or compelling opinion about Ms Ferguson's prognosis.
7. Dr Gounder told the Tribunal he could not assure it he was completely impartial because he is biased in the care he provides for his patients and is looking to get the best outcome for them.
8. The Tribunal notes Dr Gounder's statement in his letter dated 2 July 2024 that "in the past she has engaged with an occupational therapist. She has also had regular session with a psychologist for some time and she has tried cognitive behaviour therapy and stress management"[94]. The Tribunal observes that this and other high level opinion from Dr Gounder aligns with its impression of his evidence as being somewhat economical with the truth.

1. In a letter dated 26 November 2019 to Ms Ferguson's GP, Dr Chemmanam suspects dissociative spells and notes he recommended Ms Ferguson seek clinical psychology support. The Tribunal notes Ms Ferguson was seeing Ms Andrews at that time but that an and FND-focused approach was not pursued until four years later.
2. Ms Ferguson stated she first saw Mr Munro in February or March 2024 for a consult and commenced regular treatments with him in November 2024. She explained she had found Mr Munro through the FND Australia website. He is the only psychologist in Perth listed there as specialising in FND and she requested her GP change her mental health plan to see Mr Munro instead of Ms Andrews.
3. The earliest correspondence or report from Mr Munro before the Tribunal is his support letter dated 8 November 2023[95] written to support Ms Ferguson's access to a DSP (Munro November 2023 letter). There Mr Munro reports he conducted a first assessment of Ms Ferguson on 25 October 2023, two weeks prior. The Tribunal observes from Mr Munro's accompanying 25 October 2023 clinical note that the focus of this session was taking a clinical history.
4. In Munro November 2023 letter he writes:

FND is a condition that can be triggered and maintained by physical and/or emotional stress. FND is known to be a relapsing and remitting condition and if not treated early can result in lifelong disability.

At this point in time, Mercedes recovery from FND is guarded and she will continue to require ongoing psychological and medical support in the medium to long term.

1. Ms Andrews' clinical record of texts from Ms Ferguson on 30 October and 14 November 2023[96] indicate a positive relationship was developing and that Mr Munro was actively managing the treatment to achieve results and remit the seizures if possible. Ms Ferguson writes:

Our first session went well and he recommended me a couple books to tread about FND and for me to formulate some questions from them that I'll ask of him when I next see him at the end of November to work out a plan for further treatment options.

The current plan with my FND psych is that we've discuss various methods both deal with seizures when they happen and reduce their overall frequency and severity and I've been keeping a journal of when seizures happen, the symptoms and what I do to manage them as they happen, and I'll then be seeing the FND psych at the end of February to discuss what's worked and what hasn't.

1. Ms Ferguson initially told the Tribunal she did not keep records of her seizures. Later, she recalled her journal from this time and cited where she had recorded having six or seven seizures a fortnight in December 2023.
2. Mr Munro had a second session with Ms Ferguson on 29 November 2023[97] and a third on 28 February 2024. He describes the latter as "frustrating".
3. Mr Munro writes a second letter, dated 8 April 2024 (Munro April 2024 letter) to support Ms Ferguson with her NDIS application. There he repeats the same background information about FND as in November 2023. Regarding her trajectory, however, his opinion is changed. He states:

Mercedes attended a first assessment on 25 October [2023] and has engaged in 2 sessions of ongoing treatment. Mercedes reports struggling to find the finances to fully engage in private treatment. Typically, between 10 and 20 sessions of FND informed psychological therapy would be required to assist a patient to understand and manage their condition. With access to regular fortnightly treatment, I am hopeful that Mercedes can significantly reduce the burden of her current disability. If treated early after diagnosis, it is possible to remit FND and fully recover.

Due to her dissociative seizures Mercedes requires support to attend the sessions, she cannot utilise public transport on her own.

1. Ms Ferguson told the Tribunal she disagreed with Mr Munro's "personal opinion". She told the Tribunal that she had had FND since she was a child. She referred the Tribunal to an academic study that looked at people 14 years after diagnosis and treatment and only 20% of the group had recovered. The Tribunal notes this is the paper by Yong et al, referenced above.
2. 10 April 2024 is the last recorded session with Mr Munro. He concludes in his clinical records (Munro April 2024 notes):

Summary: Stuck process - wants DSP and NDIS. Thinks she needs a support dog. Won't change until supports are in place.

1. Ms Ferguson stated that since ceasing treatment with Mr Munro, her treatment with Ms Andrews had become CBT treatment specifically focused on FND. Asked to expand, Ms Ferguson stated that her treatment prior to then was CBT focused on her depression and anxiety rather than stress management. Ms Ferguson then confirmed that after her diagnosis of FND, her psychology treatment continued to focus on some unrelated issues particularly health concerns for other family members. She said it was related to focusing on FND because it is talking about the source of the stress. They aim to include some CBT but there may not be enough time. In a holistic sense, she thought that out of the 12 sessions she had completed at that time, seven or eight had been dedicated to CBT.

1. As the Tribunal has noted above, Ms Ferguson accessed three sessions with Ms Mynott, between February 2024 and February 2025. These were for assessment purposes only. In Mynott April 2024 notes, Ms Mynott notes that four sessions under the Chronic Disease Management program remained available and Ms Ferguson is "going to think about using OT sessions for intervention". Ms Ferguson stated at hearing that when she saw Ms Mynott again in February 2025, Ms Mynott reiterated she would be happy to provide treatment to her.
2. In Mynott February 2025 report, Ms Mynott notes that Ms Ferguson has only seen her for assessment. In her accompanying clinical noted dated 14 February 2025[98] (Mynott February 2025 note) she states:

Mercedes has not yet engaged in any strategies beyond physical therapy and cognitive behaviour therapy/stress management to build her capacity in functional tasks. She would benefit from working alongside an OT to develop management strategies, task adaptations and environmental modifications (not home mods).

1. Ms Ferguson stated at hearing that it was Ms Mynott who recommended physiotherapy for her and further that Ms Mynott advised physiotherapy could replace occupational therapy. Ms Ferguson told the Tribunal that because she had engaged in the physiotherapy as recommended by Ms Mynott, she had "complied with the OT's treatment". Dr Gounder's statement that she had complied with all recommended treatments should be understood in this context.
2. Mr Fielke opined that psychology is probably the main allied health intervention that is most likely to provide the greatest assistance. He opined in Ms Ferguson's case her greatest obstacle is community access due to fear of an event happening. This fear and anxiety would best be dealt with by a psychologist to identify when they are becoming anxious and identifying a means to manage that anxiety. Based on his experience, the incidence of events then decreases.
3. Mr Fielke spoke about strategies an OT would assist with developing and practicing and then withdrawing from as the person becomes more independent. He stated that notifying the bus or Uber driver is very common. Ms Ferguson could have a list of people they might need to call, carry a card, having a recording on her phone, be tracked by someone at home and could notify the bus driver of her stop.

1. Ms Ferguson's focus in the access request and in pre-hearing materials before the Tribunal is on obtaining access to the NDIS so she could have a companion travel with her when she left the home. She continued to submit at hearing that either in-person supports or an appropriately trained therapy dog are her motivations for access. During the hearing, Ms Ferguson claimed she was motivated to seek early intervention access so that she might access occupational therapy treatment, however this does not appear to the Tribunal to have been a priority prior to hearing.
2. Ms Ferguson confirmed as stated in the documentary evidence that she wears polarised sunglasses outside and blue light glasses for the computer.
3. Ms Ferguson stated she has equipment at home and did exercises at home to increase strength and reduce tremors. She was evasive in response to questions designed to elucidate how frequently she was exercising at home.
4. Ms Ferguson told the Tribunal that she has never been employed. While she was a student at school and at university she wanted to focus on her studies and her health. She did not seek employment during this time. She received the Youth Allowance while at university until the age of 22, then transitioned to Jobseeker and finished university at age 23. After leaving university, for the first six months she wanted to enjoy her free time for the first time since she was three years old. Once she went onto Jobseeker she had an agency assisting her to find work. Through those applications, she was unsuccessful. She tried looking for work from home data entry and other administrative jobs but did not hear back on those applications. Asked about how active she was in seeking work beyond the obligations necessary to maintain her Jobseeker entitlement, Ms Ferguson evaded the question stating she was having seizures that were not being treated and that would of course affect her employability.
5. Ms Ferguson confirmed she has a bachelors' degree in gaming.
6. Ms Ferguson spends most of her day at a computer. Her main interest is gaming. She often spends six hours a day gaming and interacting online with other gamers. She is also writing a book which she may publish. She is disciplined and motivated in these activities. She has a target for her writing which she achieves most days.
7. In asking Mr Fielke questions at interview, Ms Ferguson reflected that she was aware that outcomes of FND treatment are variable. She stated that "some people their symptoms are alleviated completely, some improve, some stay the same, adding in her case it was "a bit too early in my treatment to determine".
8. Ms Ferguson said she did not explore the nature of possible OT treatment with Ms Mynott. She stated as the unit cost was $280 and the rebate only $46, it was more expensive than the Mental Health Care Plan and not covered by her private health insurance. Ms Ferguson stated she had private health insurance with hospital and extras cover. She stated she had also not followed up on OT treatment because Ms Mynott's practice used to be 15 minutes' drive from home, Ms Mynott then moved and was 30 minutes or more away. Ms Ferguson explained she had been on Centrelink when she first saw Ms Mynott, that a DSP was approved in September 2024 backdated to May 2024. She was still of the view the treatment was beyond her means, however.
9. Ms Ferguson said that Mr Munro was the only psychologist with FND expertise on the FND website and that besides him and Ms Andrews there was no one else to see in Perth.

1. Ms Ferguson has sought to make out her case for access based on impairments arising from FND only. Ms Ferguson displayed resistance to the Tribunal's interest in whether it should have regard also to her mental health diagnoses. Mrs Ferguson told the Tribunal that Dr Gounder had not advised them there was a connection between the psychosocial disorders and FND. The Tribunal has no persuasive clinical or medical opinion before it as to the permanency or likely permanency of Ms Ferguson's anxiety related impairments as Ms Ferguson did not focus her case in this way.
2. In the Tribunal's view, there is a deficiency in the evidence as to the extent to which and how Ms Ferguson's anxiety, depression and FND conditions and impairments secondary to those conditions interact with one another, particularly if and how Ms Ferguson's psychology treatment has been framed and delivered accordingly. Dr Civil in his evidence persuasively identified interrelationships. He identified that the impact of FND on Ms Ferguson is that it is difficult for her to travel, for instance by using public transport "due to the anxieties and depressive component and that aggravating the seizures". Therefore, in considering permanency, evidence of Ms Ferguson having been receiving targeted treatment with the objective of overcoming her psychological barriers to travelling unassisted and gaining independence is in the Tribunal's view vital to it being positively satisfied the requirements of rules 5.4 and 5.6 and section 24 (1)(b) are met.
3. The Tribunal notes that FND as a condition and the impairments which often arise from it, and of which Ms Ferguson has several, are not inherently permanent. That was acknowledged by Ms Ferguson in her own evidence, by Dr Gounder, Mr Munro and Mr Fielke and is supported by the academic literature on which Ms Ferguson relies. That literature also reports research findings that early diagnosis, young age and short duration of symptoms are indicators of positive outcomes. Dr Gounder did not know if there was a link between age and prognosis however. It appears to the Tribunal Ms Ferguson has formed the opinion that she cannot recover from FND through treatment. This is reflected in Mr Munro's experience of Ms Ferguson as being "stuck".
4. The Tribunal notes that Ms Ferguson has prioritised clinical Pilates treatment when the Tribunal has found there is no evidence of clinical Pilates have been recommended by her treating practitioners. The Tribunal is not persuaded that occupational therapy and clinical Pilates are comparable and interchangeable treatment modalities.
5. The Tribunal acknowledges Ms Ferguson has taken some of the recommended steps towards remission from her impairment. Ms Ferguson has been diligent in self-education. She has also explored and undertaken some psychology treatment. However, there have been limitations to that psychology treatment.
6. Ms Andrew's and Mr Munro's clinical notes indicate Mr Munro had a strategy of delivering targeted psychology treatment with the goal of curing Ms Ferguson's FND.
7. Ms Andrew's letters and clinical notes as well as Ms Ferguson's oral evidence indicate Ms Andrews since her FND diagnosis has focused her treatment on reducing stressors other than Ms Ferguson's FND impairments. Ms Andrews is not an expert in FND and has deferred to Ms Ferguson's opinions about the treatment she needs. There has been some identification of stress management techniques but no persuasive evidence that a treatment program put in place clearly directed to FND impairments and to resolving them. Ms Ferguson acknowledged there has been no treatment directed to Ms Ferguson's resistance to travelling alone on public transport.
8. The trajectory of Ms Ferguson's neurological impairment is positive. The extent of the impairment is reducing as well as its frequency and the Tribunal has engaged in some discussion of this in its findings regarding section 24(1)(a) above. Ms Ferguson in July 2024 reported to Ms Andrews she had had no major FND episodes recently and feels improved knowledge about triggers and managing stress has helped her. The receipt of the FND diagnosis alone was recognised by Dr Civil as positive for Ms Ferguson's stress. The use of polarised and blue light glasses has also had positive impacts. The treatment Ms Ferguson has undertaken so far has lessened her FND impairment and sent it on a trajectory of remission, in line with expert opinion.
9. The Tribunal does not accept that expert treatment with the potential to remediate her impairment in unavailable to Ms Ferguson. The Tribunal has taken into consideration that Ms Ferguson is presently in receipt of a disability support pension. However, the Tribunal is not bound by the findings underlying that pension as to her employability and is required to reach its own findings on the availability of treatment. Whilst the Tribunal finds that full time employment may not be advisable for Ms Ferguson given her anxiety, the Tribunal finds she has the capacity to be gainfully employed. Dr Gounder agreed she could take on home-based employment. Further, taking into consideration that her current income is limited to the DSP, Ms Ferguson has chosen to prioritise clinical Pilates treatment which has not been recommended for her by Dr Gounder and other experts, over OT, which has. The Tribunal notes that Ms Ferguson dedicates a up to six hours a day to recreational pursuits of gaming and writing a novel.
10. In the Tribunal's opinion, recognising Ms Ferguson has some limitations in financial and physiological resources, Ms Ferguson has chosen to prioritise securing NDIS access over undertaking treatment that might remediate her condition. She immediately made her access to request to the NDIS even though she had not commenced treatment for her impairments. To the extent she engaged with Ms Mynott that was solely to obtain a report to support her NDIS application. To the extent Ms Ferguson engaged with Mr Munro, it is evident that Mr Munro formed the opinion Ms Ferguson's priority in accessing his services was as a platform to NDIS access and by her own admission, she disagreed with the direction in which he as the specialist wanted to take her treatment. By her own admission, it is too early to say how effective treatment might be for her.
11. In the Tribunal's view the evidence before it from Mr Fielke establishes that Ms Ferguson can put in place simple practical measures to travel on public transport unaccompanied. The evidence as a whole establishes she has the capacity to implement such measures.
12. For all the above reasons, the Tribunal is not positively satisfied there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy Ms Ferguson's impairment. It is not positively satisfied medical treatment and review is not required before a determination of permanency or likely permanency can be made regarding Ms Ferguson's impairments.

1. The Tribunal is not satisfied Ms Ferguson overcomes the threshold requirements in rules 5.4 and 5.6 of the Access Rules. It has determined that both these exclusions apply. It follows the Tribunal must find Ms Ferguson's impairments are not permanent, nor are they likely to be so.
2. Accordingly, Ms Ferguson does not satisfy the element of permanency in the disability and early intervention requirements, in sections 24(1)(b) and section 25(1)(a)(i) of the Act respectively.
3. As the Tribunal has concluded the Applicant does not meet these requirements for access to the NDIS, it must affirm the decision under review.

[1] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024

[2] Joint Tender Bundle 9 May 2025, (JTB), page 188

[3] Email dated 24 February 2025 from Ms Ferguson's then representative, disability advocate Ms Emma White of Midlas in compliance with direction 3a of the Tribunal's directions dated 9 January 2025 confirming the health conditions and impairments on which access is being sought

[5] Ms Andrews clinical notes 30 August 2023 and 13 June 2024

[6] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) 2024 (the Amending Act), Item 126(1) of Part 3 of Schedule 1

[7] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the NDIS Access Rules), paragraph 2.5(a)

[10] Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201(Mulligan), at [18]; Lampard and National Disability Insurance Agency [2024] AATA 3150 (Lampard), at [19]

[11] National Disability Insurance Agency v Davis [2022] FCA 1002 at [69] (Davis); Mulligan at [18]

[14] Davis, at [82], Lampard, at [21]

[22] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), Foster, at [88]

[26] Garcia Albiol and NDIA [2024] AATA 496A

[28] Foster and the National Disability Insurance Agency [2025] ARTA 718, at [17] (Foster ART)

[29] NDIA v Jones [2025] FCA 877, decision 31 July 2025 per Collier J (Jones), at [27]

[32] Beezley v Repatriation Commission (2015) FCAFC 165 at [68]

[34] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.

[35] G v Minister for Immigration and Border Protection, per Mortimer J [2018] FCA 1229 at [171]

[36] Applying to the NDIS (Pre-legislation changes) 14 October 2024

[49] Section 25 of the Administrative Appeals Tribunal Act 1975 and section 103 NDIS Act together gave the AAT the power to review an internal review decision by the Agency about access

[50] Tribunal direction dated 28 November 2024

[52] Subsequently, the Agency filed another three versions bundles, on 13 May, 20 May and 11 July 2025. These have been checked by the Tribunal to ensure no documents have been overlooked however are not preferred in this decision record because the indexing and pagination differs significantly from the tender bundle taken into evidence. Tribunal references from time to time some of the documents returned under summons and contained in the bundle dated 20 May 2025. The Tribunal notes the bundle filed on 11 July 2025 is unchanged in so far as the summonsed documents is concerned.

[53] The designation of "current" or "previous" is at the last hearing day

[54] The parties positions are as stated in the R SFIC, A Reply and opening and closing arguments at hearing

[63] For example, Andrews clinical note 23 April 2024

[67] Holly Mynott clinical records 4 April 2024 and 22 February 2024, SB pages 7 and 8

[77] Four papers listed under "Supporting Materials" at pages 2 - 3 of this decision

[78] Perez et al, page 576 R Tender Bundle 20 May 2025 (RTB)

[81] Davis, at [71]; Kelly v National Disability Insurance Agency (Kelly), [2024] FCA 1462 at [48]

[85] Kelly v National Disability Insurance Agency [2024] FCA 1462, per McEvoy J, at [48] cited with approval in Lampard, at [33] - [37]; Davis [71] to [75]

[90] A opening statement; R SFIC, para 22

[92] Colefax v National Disability Insurance Agency [2024] AATA 2854 (Colefax)