1. After it was filed, this Application was referred for alternative dispute resolution in accordance with Division 3 of Part IV of the AAT Act. Alternative dispute resolution did not lead to a resolution of the dispute.
2. On 19 August 2024 I conducted a Case Management Directions Hearing to prepare the case for a final review hearing. Key issues at that stage were the scope of the Applicant's request for supports and the status of the evidence that she intended to rely on in relation to those supports. To deal with those issues I issued a direction which required the Applicant to notify the Agency and the Tribunal by 16 September 2024 of the witnesses she intended to call at the hearing and to also file any further witness and other evidence she intended to rely upon by that date. The Applicant did not comply with that direction and nor did she request an extension of time in which to do so before the compliance date for that direction.
3. In that context, to avoid any further delay in the progress of the case to hearing, on 23 September 2024, at my instruction, Registry wrote to the parties to advise that I intended to make an order after 30 September 2024 pursuant to s 25(4A) of the AAT Act that would determine the scope of the review. The draft form of order was given to the parties, and they were directed to notify the Tribunal by 30 September 2024 if they had any objection to this order being made, and if so, the grounds for that objection.
4. On 25 September 2024 the Applicant applied for an extension of time in which to comply with the direction I made on 19 August 2024. After considering that request and the grounds on which it was made, I directed that time was extended to 16 October 2024 for her to do so. The Applicant did not respond to the direction within that extended period.
5. Neither party made any submission in response to the order I proposed to make under s 25(4A) of the AAT Act determining the scope of the review by 30 September 2024 or before 16 October 2024.
6. The AAT Act was repealed, and the Administrative Appeals Tribunal was abolished, on 13 October 2024. They were replaced by the ART Act and the Administrative Review Tribunal on 14 October 2024.
7. Consequently, on 23 October 2024, I made the order I had proposed under the AAT Act under the equivalent provision (s 53) of the ART Act. That order was in the following terms:

Pursuant to s 53 of the Administrative Review Tribunal Act 2024 (Cth) the Tribunal determines the scope of this review as follows:

8. The applicant applies for review of the Chief Executive Officer's decision of 3 March 2023 not to include the following requested supports or variations in her statement of participant supports:

(a) Funding of 2 hours per day, 7 days a week, for assistance with self-care activities (14 hours per week).

(b) Funding of 4 hours per day, 7 days a week, for social and community and civic participation (28 hours per week).

(c) Funding for physiotherapy supports on a fortnightly basis with occasional weekly sessions as recommended by therapist (26 plus occasional weekly).

(d) Funding for Medx exercise physiology support on a twice weekly basis at an updated rate of $31.08 per session ($248.64 per month).

(e) Change stated funding for Occupational Therapy to unstated.

(f) Change funding for psychology to counselling support.

1. The Applicant's evidence before the Tribunal will be that contained in the T-Documents and given to the Agency and the Tribunal in the proceedings up to 4pm on 16 September 2024.

1. Although the Tribunal has jurisdiction to review the internal review decision which is the genesis of this independent review, in the circumstances of this case, no practical purpose is served by it doing so. It is the reassessment decision made on 18 November 2024, as varied on 30 January 2025, that is the operative decision for the purposes of this review. The operative decision, as varied, incorporates two of the changes to her SoPS that the Applicant originally sought in her appeal to this Tribunal from the internal reviewer's decision. In this respect, the operative SoPS now includes occupational therapy as an "unstated support", and "counselling" has been substituted as a support in place of "psychology".
2. It follows from this that this independent review is to determine if the supports set out in paragraphs 1(a) to (d) of the s 53 order I made on 23 October 2024 are reasonable and necessary supports that ought to be approved for inclusion in the Applicant's SoPS (the supports in dispute).

1. The Tribunal's role in conducting this review has been to reach its own conclusion as to whether the delegate of the CEO's decision that the disputed supports are not reasonable and necessary supports is the correct or preferable decision.[3] That has involved the independent re-assessment of the evidence that was before the delegate when she made her decision as well as the assessment of the additional documentary and witness evidence that was before the Tribunal at the time of the hearing.[4] In addition to ascertaining the relevant facts as they stood at the time of the review, the Tribunal has been required to apply the law as this was amended on 3 October 2024 (which is explained further following).
2. Section 34(1) of the NDIS Act provides, relevantly, that for the purposes of specifying the reasonable and necessary supports that will be funded in a SoPS, the CEO must be "satisfied" of each of the matters set out in that section in relation to the funding of each such support. 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.[5] Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that each of the supports in dispute is reasonable and necessary.[6]

1. On 22 August 2024 the NDIS Act (the principal Act) was substantially 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). Certain of those amendments came into effect on 3 October 2024 and are expressed to apply to a SoPS approved or varied after that date irrespective of whether a participant's Participant Plan came into effect before, or on, or after the commencement of these amendments. New Rules developed pursuant to the amendments to the principal Act also came into effect on 3 October 2024 and are expressed to apply to a SoPS approved or varied from 3 October 2024. They are the National Disability Insurance Scheme (Getting the NDIS Back on Track) Transitional Rules 2024 (the Transitional NDIS Support Rules), and the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (the Miscellaneous Provisions Rules).
2. For the purposes of this review, the most relevant of these amending provisions are the introduction of s 10 and paragraph 34(1)(aa), and the amendment to paragraph 34(1)(f), which, in short summary, and relevantly, require me to be satisfied that each of the supports in dispute are "NDIS supports" as defined, and are necessary to address the needs of the Applicant as they arise from an impairment in relation to which she meets the disability requirements. In effect, these are conditions precedent to consideration of the other matters I am required to consider under s 34(1). I say "conditions precedent" not because the statute structures the test this way, but rather, because the logic of the inquiry necessarily does so. If one or other of these 'threshold' matters cannot be satisfied, then there is no utility in considering the other matters specified by s 34(1) and the associated National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth).
3. I note that the amending Act also introduces a new planning framework for Participant Plans. However, these changes are not relevant in this review. The Applicant's Participant Plan is an "old framework plan" within the meaning of s 32A(2) of the NDIS Act, and this review will proceed on this basis.

1. The following documentary material is before me:
   1. The documents filed by the Agency in accordance with the obligations imposed by s 37 and s 38AA of the AAT Act (T-Documents),
   2. Hearing Tender Bundle prepared by the Agency, which included:
      1. Respondent's Statement of Facts, Issues and Contentions
      2. Letter authored by Mr R Newton, Physiotherapist, dated 16 March 2023,
   3. NDIA Hearing Questions for Ms Lisa Forrest handed up on 3 December 2024,
   4. Respondent's Supplementary written outline of submissions, dated 4 December 2024,
   5. Applicant's post-hearing submissions filed 31 January 2024,
   6. The Access Request made by the Applicant for access to the NDIS in or about 27 November 2020, and supporting documentation, filed by the Respondent on 20 December 2024,
   7. The print-out of the "dashboard" of the Applicant's NDIS Participant account, recording the impairments upon which she is recorded as having been assessed as meeting the disability requirements for access to the NDIS, filed by the Respondent on 20 December 2024.
2. The hearing was conducted on 3, 4, and 5 December 2024 by video. The days were truncated as a procedural adjustment for the Applicant who requested this to manage impairment related fatigue, anxiety, and difficulties processing information.
3. The Applicant gave evidence in her own cause under affirmation in accordance with procedural adjustments she had requested. In this respect, breaks for rest were allowed upon her request and otherwise at regular intervals, and, in advance of the hearing, the CEO's representatives submitted a written list of questions it wanted her to answer during her evidence, which she was permitted to work through at her own pace with minimal supplementary live questioning or redirection by counsel for the Agency or Tribunal.
4. The Applicant called as a witness Mr R Newton, Physiologist, who have evidence under affirmation.
5. As I have explained above, on 3 October 2024, key amendments to the NDIS Act came into force which impacted on this review. The Agency sought to make submissions in relation to those changes, which it submitted in writing and which counsel for the CEO spoke to on the last day of the hearing. The Applicant sought the opportunity to consider and respond to those submissions after the hearing which I also allowed as a disability related procedural adjustment with the CEO's support.
6. One of the principal issues that arose for consideration from the amendments to the NDIS Act that came into effect on 3 October 2024 were the impairments in relation to which the Applicant was assessed as meeting the disability requirements at the time she became a participant in the NDIS. There were competing contentions about this.
7. To enable me to obtain a better understanding of this background, at the close of the hearing, I directed the CEO to give to the Tribunal and the Applicant a copy of the Applicant's Access Request Form and its supporting documentation along with a print out of the "dashboard" of the Applicant's NDIA electronic client account where the impairments in relation to which she was considered as meeting the disability requirements for access to the NDIS were recorded. That information was filed on 20 December 2024.
8. As I have already noted, in the prehearing period the CEO agreed to vary some aspects of the Applicant's SoPS to address requests that were before the Tribunal in this review. Because these requests were no longer in dispute, I did not consider them in any detail at the hearing. At the conclusion of the hearing I directed the parties to confer and decide by 31 January 2025 if that partial agreement would be subject to Terms of Agreement in relation to which a consent order in partial settlement of the dispute would be sought pursuant to s 103 of the ART Act, or if the Agency would vary the Applicant's SoPS pursuant to s 47A of the NDIS Act to give effect to these matters, or if I was required to determine those matters. As I have set out above, the CEO varied the Applicant's SoPS in relation to those matters, and that varied SoPS is now the operative decision before the Tribunal for review.
9. The Applicant wrote to the Tribunal by email on 11 February 2025 raising several concerns in relation to her Plan as varied on 30 January 2025. She apprehended that her overall funding for supports had been reduced, that she had lost transport funding, that funding for psychology support had been removed, and that her capacity building supports were all "stated supports".
10. Upon close comparison of the SoPS as varied on 30 January 2025 with the SoPS approved on 10 May 2024 it becomes clear that the apparent difference in overall funding is referrable to the differing Plan durations. The SoPS approved on 10 May 2025 was for a 15-month period, whereas the SoPS as varied is for a 12-month period. It also becomes apparent that transport funding at the same level as that approved in the 10 May 2025 SoPS is retained in the SoPS as varied on 30 January 2025 but is included in a new category of "recurring supports" rather than in the core supports category as it was before.
11. The Applicant did seek to change her mind in the hearing about having "psychology" remain as a capacity-building support. However, the s 53 order I made on 23 October 2024 limited the scope of the review to those supports that were in issue at that time. At that time the Applicant wanted psychology removed from her SoPS and its substitution with counselling support. She did not, at that time, request either psychology or counselling to be an unstated support. As noted above the Agency agreed to this request as it had stood on 23 October 2024.
12. What remains from the Applicant's concerns is occupational therapy being included as a stated support in the SoPS as varied on 30 January 2025.
13. At first appearance occupational therapy does appear to be a stated support in the varied Plan. Having regard to that, on 30 June 2024, I caused my Associate to make the following enquiry of the CEO's legal representative:

... > > The Plan variation decision dated 30 January 2025 includes as a capacity building support occupational therapy which is expressed to be a "stated support". The Agency conducted itself before the Tribunal on the basis that it had agreed to change the "stated" funding for occupational therapy to "unstated" (refer to paragraph 23.5 of the Agency's Statement of Facts, Issues and Contentions and to the hearing recording day 1 'Agency Opening Statement"). > > On this basis the review hearing did not involve consideration of whether this support ought to be "stated" or "unstated", including whether the Tribunal has jurisdiction in relation to that matter, and if so, in what way. > > The Agency is asked to advise the Tribunal if the inclusion of occupational therapy as a stated support in the SoPS as varied on 30 January 2025 is in error and will be corrected, or if it is intentional. If it is the latter, the Tribunal will need to consider whether the review hearing ought to be resumed to deal with that matter.

14. By a response filed by her legal representative on 8 July 2024, the CEO clarified the issue in the following way:

... The Applicant's capacity building budget for improved daily living is a stated support as indicated in the variation of the plan dated 30 January 2025. However, the funding for occupational therapy itself was changed to be unstated. The Applicant's capacity building budget can be used flexibly to enable the Applicant access to funding for both occupational therapy and counselling.

15. Having regard to that clarification I am satisfied that it is unnecessary to reopen the hearing to deal with this issue.

1. The Applicant's current Participant Plan incorporates the following participant goals (the Applicant's Statement of Goals and Aspirations):

In this plan period I would like to understand how to better manage my health conditions & reduce the impacts my chronic health conditions have on my mental health & functional capacity in order to have a good life. > > In this plan period I would like to develop my daily living and emotional regulation skills in order to feel safe in my home, mind and body and with my future plans of employment and my interactions with people in my life. > > In this plan period I would like to develop my social skills allowing me to become more actively involved in something purposeful and meaningful in my community and to develop my relationships with family and friends > > In this plan period I would like to ensure my body gets enough nutrients to prevent mental health declines and to run my body wisely allowing for a more active lifestyle. > > In this plan period I would like to improve my organisational skills to ensure I maintain and attend appointments and develop a workable, sustainable, organisational and management system for my home.

2. The SoPS that is incorporated into the Applicant's current Plan has a total budget of $105,017.12 for funded supports which is divided into three categories (for the period 30 January 2025 to 29 January 2026).
3. In the "core support" category total funding of $88,574.64 is available. This is made up of a budget of $66,995.88 for "assistance with daily life" which enables the Applicant to purchase supports related to self-care and domestic and household activities, a budget of $21,078.72 for "assistance with social, economic and community participation" which enables the Applicant to purchase supports related to her participation in community-based activities and the development and maintenance of friendships and relationships with others, and a budget of $500.04 for "consumables" which enables the Applicant to purchase low cost assistive technology and arrange for minor repairs to assistive technology. The total budget available to the Applicant in the core supports category is capable of being used "flexibility" between the items in this category.
4. In Schedule A of its SoFIC, the Agency provides a break-down of the 'base' items funded in respect of "assistance with daily living" and "social, economic and community participation" as follows:

Daily living: > > Assistance with self-care activities - standard - weekday daytime: $65.47 x 10 hours per week > > Assistance with self-care activities - standard - Saturday: $92.12 x 2 hours > > Assistance with self-care activities - standard - Sunday: $118.78 x 2hours > > Assistance with self-care activities - standard - Public holiday: $145.44 x 6 hours > > Assistance with personal domestic activities: $55.02 x 2 hours per week > > House and/or yard maintenance: $53.09 x 2 hours per month > > Social and Community Civic Participation: > > Access Community Social and Recreational activities - Weekday daytime: $66.47 x 6 hours per week.

5. In the "capacity building supports" category a total budget of $14,658.48 is available. This is made up of a budget of $1,485.84 for "choice and control" which is to be used to purchase supports that help the Applicant to manage her funding and pay for services using a registered plan manager, a budget of $9,567.60 for "improved daily living skills" part of which ($3,747.84) is to enable the Applicant to purchase counselling support to assist her with the development of skills to meet her Plan goals, and the remainder of which ($5,819.70) is to be used to purchase occupational therapist support to assess and provide strategies to increase her independence in activities of daily living. This category also includes a budget of $3,605.04 for "support coordination and psychosocial recovery coaches" which is to be used to purchase 36 hours of support coordination. Each of the supports in this category are "stated supports" which means that the budget amounts can only be spent on the support specified by the item (but with respect to occupational therapy and counselling, as clarified above).
6. In the "recurring support category" a total of $1,784.00 is allowed for disability related transport costs, which is paid by instalments into the Applicant's bank account. This is also a stated support, meaning that this funding can only be spent on transport needs that arise because of the Applicant's disability when accessing work, study and community activities.

1. The NDIS Act is founded upon an explicit values base which is found in its objects (s 3) and general principles (s 4), and with respect to participants and their plans, in more specific principles contained in ss 17A and 31.
2. Notable among these value statements for present purposes are the following:

3 Objects of the Act > > (1) The objects of this Act are to: > > ...

(d) provide reasonable and necessary supports ... for participants in the National Disability Insurance Scheme;

(e) enable people with disability to exercise choice and control in the pursuit of their goals and in the planning and delivery of their supports; ...

4 General principles guiding actions under this Act

...

(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.

(5) People with disability should be supported to receive reasonable and necessary supports ...

...

(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.

...

(11) Reasonable and necessary supports for people with disability should:

(a) support people with disability to pursue their goals and maximise their independence; and

(b) support people with disability to live independently and to be included in the community as fully participating citizens; and

(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.

...

17A Principles relating to the participation of people with disability

(1A) In performing the CEO's functions and exercising the CEO's powers under this Chapter, the CEO must have regard to the principles in this section.

(1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.

(2) People with disability will be supported in their dealings and communications with the Agency so their capacity to exercise choice and control is maximised.

(3) The National Disability Insurance Scheme is to:

(a) respect the interests of people with disability in exercising choice and control about matters that affect them; and

(b) enable people with disability to make decisions that will affect their lives; and

(c) support people with disability to participate in, and contribute to, social and economic life

to participate in, and contribute to, social and economic life.

...

31 Principles relating to plans

The preparation, variation, reassessment and replacement of a participant's plan, and the management of funding for supports under a participant's plan, should so far as reasonably practicable:

(a) be individualised; and

(b) be directed by the participant; and

...

(g) be underpinned by the right of the participant to exercise control over his or her own life; and

(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and

(i) maximise the choice and independence of the participant; and

(j) facilitate tailored and flexible responses to the individual goals and needs of the participant.

...

1. In giving effect to the objects of the Act, regard must be had to the need to ensure the financial sustainability of the NDIS: s 3(3)(b). It is also a general principle that, relevantly, the CEO and any other person performing functions or exercising powers under the NDIS Act is to have regard to the need to ensure the financial sustainability of the NDIS: s 4(17).
2. Section 33 of the NDIS Act sets out the matters that must be included in a NDIS Participant Plan.
3. Pursuant to s 33(1) the Plan must include the Participant's Statement of Goals and Aspirations.
4. Pursuant to s 33(2) the Plan must include a SoPS, prepared with the participant and approved by the CEO that specifies, relevantly to this case, (b) the reasonable and necessary supports (if any) that will be funded under the NDIS.
5. Section 34 of the NDIS Act determines what is a "reasonable and necessary support" for the purposes of s 33(2):

34 Reasonable and necessary supports > > (1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support.

(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see s 24) or the early intervention requirements (see section 24);

(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice

(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide.

(f) the support is an NDIS support for the participant.

Note: For the purposes of paragraph (aa):

(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and

(b) a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.

(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).

48. Part 3 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Supports for Participants Rules) contains Rules for assessing proposed supports, including, relevantly, against the value for money criterion in s 34(1)(c), and, the effective and beneficial and current good practice criteria in s 34(1)(d) of the Act.

Value for money > > 3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:

(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

(d) for supports that involve the provision of equipment or modifications:

(i) the comparative cost of purchasing or leasing the equipment or modifications; and

(ii) whether there are any expected changes in technology or the participant's circumstances in the short-term that would make it inappropriate to fund the equipment or modifications;

(e) Whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

(f) whether the support will increase the participant's independence and reduce the participant's need for other kinds of supports (for example, some home modifications may reduce a participant's need for home care).

Effective and beneficial and current good practice

3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

(a) published and referred literature and any consensus of expert opinion;

(b) the lived experience of the participant or their carers; or

(c) anything the Agency has learnt through delivery of the NDIS.

3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.

1. Section 10 of the NDIS Act as amended and the Transitional NDIS Support Rules prescribe what is a NDIS Support for the purposes of s 34(1)(f). Rule 7 of the Miscellaneous Provisions Rules, in effect, preserves s 34(1)(f) as it stood prior to the 3 October 2024 amendments. In short summary, it provides that the decision maker must be satisfied that a requested support is most appropriately funded through the NDIS, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered as part of a universal service obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
2. For the purposes of s 34(1)(aa) it is the disability requirements that are relevant in this review. In this respect, s 24 provides:

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 impairments or impairments affect the person's capacity for social and economic participation; and

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

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

...

1. Rules 5.4 to 5.7 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Becoming a Participant Rules) 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 of the Becoming a Participant Rules 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. Having regard to the current state of the law, the questions that must be asked in this review, and the sequence in which they must be asked and answered is as follows:

(a) Are the supports that remain in dispute NDIS Supports as defined.

If the answer to this question is "no" with respect to any of the supports in dispute, that support can no longer be considered for approval in the Applicant's SoPS because it cannot meet the requirement of s 34(1)(f).

If the answer to (a) is "yes" with respect to any of the supports in dispute, then that support can be considered for approval in the Applicant's SoPS if it is a support that is necessary to address needs of the Applicant that arise from an impairment in relation to which she meets the disability requirement. Therefore:

(b) What are the Applicant's permanent impairments that result in substantially reduced functional capacity to undertake any of the activities of communication, social interaction, learning, mobility, self-care and self-management, and which affect her capacity for social or economic participation?

(c) Do any of the supports in dispute meet the needs of the Applicant arising from an impairment in relation to which she meets these disability requirements?

If any of the supports in dispute do not meet the needs of the Applicant arising from an impairment in relation to which she meets the disability requirements then they cannot be considered for inclusion in the Applicant's SoPS because they cannot meet the requirements of s 34(1)(aa).

(d) If the answer to (c) is "yes" then ask whether the support in dispute meets the requirements of s 34(1)(a), (b), (c), (d) and (e) and Rule 7 of the Miscellaneous Provisions Rules.

1. Relevantly to this case, Schedule 1 of the Transitional NDIS Supports Rules prescribes those supports that are NDIS Supports for the purposes of ss 10 and 34(1)(f) of the NDIS Act. With respect to the supports in dispute:
   • - Item 14 prescribes a "Daily personal activities" category, which is defined to be "supports that provide supervision or assistance with personal daily living tasks to help a participant to live as independently as possible in their own home and community" which includes "(a) assistance with eating and drinking, dressing and toileting and (d) maintaining personal hygiene, including showering, bathing, hair washing and drying, finger nail cutting and cleaning".
   • - Item 18 prescribes a "Exercise physiology and personal well-being activities" category which is defined to be "supports that maintain or increase physical mobility or well-being through personal training or exercise physiology to address the functional impact of the participant's disability", which includes "(a) accessing services from an appropriately qualified professional", "(b) assessment and development of a personalised exercise program which aims to increase or maintain a participant's functional capacity", and "(c) maintenance of muscle strength, range of motion, balance and mobility".
   • - Item 27 prescribes a "Participation in community, social and civic activities" category, which is defined to be "supports that assist a participant to take part in community, social, cultural and civic activities which includes "(a) supporting participants during relevant activities" and "working with participants to develop their ability to partake in these activities".
   • - Item 34 prescribes a "Therapeutic supports" category which is defined to be "supports that provide evidence-based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living". This includes "an assessment by allied health professionals for support planning and review as required".
2. I am satisfied having regard to these prescriptions that each of the supports in dispute are NDIS Supports for the purposes of s 34(1)(f) of the Act. The self-care support in dispute falls within the scope of Item 14, the social and community and civic participation requested support falls within the scope of Item 27, the physiotherapy support in dispute falls within the scope of Item 34, and the Medx exercise physiology support falls within the scope of Item 18.

Do the supports in dispute meet the needs of the Applicant arising from an impairment in relation to which she meets the disability requirement?

1. A threshold issue that must be determined before this question can be answered is the temporal focus for s 34(1)(aa). Specifically, is this provision focused on the point in time when the participant was assessed as meeting the access criteria for the NDIS, or is its temporal reference the time the SoPs is approved? In this case, the CEO has argued for the former, submitting that the Applicant's SoPS can only contain supports that address her needs arising from an impairment in relation to which she met the disability requirements when she obtained access to the scheme (my emphasis).
2. But that is not the clearly expressed language of paragraph 34(1)(aa). It uses the irregular verb meets which is expressed in the present continuous tense. In my opinion this indicates that the temporal focus for paragraph 34(1)(aa) is the time the decision to approve the SoPS is made.[7] If there is any doubt about this, in my opinion that doubt is dispelled by Note "(a)" to s 34(1) which provides, relevantly, that for the purposes of paragraph (aa), the time at which the disability requirements need to be met is the time the CEO decides to approve the SoPS. The note does not reference the time the participant met the requirements for access to the NDIS.[8]
3. In his submissions Counsel for the CEO drew attention to the description of Item 46 in the Revised Explanatory Memorandum for the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Bill, which when enacted, inserted paragraph 34(1)(aa) into the principal Act. It states:

Item 46 inserts an additional criterion (new paragraph 34(1(aa)), which provides that the supports must be necessary to address the needs arising from an impairment that meets the disability requirement (in accordance with section 24) or early intervention requirements (in accordance with section 25). Item 48 makes consequential amendments to subsection 34(2) to ensure that NDIS rules can be made for the purposes of new 34(1)(aa). > > This amendment clarifies that the NDIS only funds supports for impairments that meet the disability or early intervention requirements, as per the Scheme's original intent. This amendment reflects the Agency's current operational guidelines and will provide clarity to participants and other service systems about what supports will be funded through the NDIS. It will not require participants to repeatedly prove their disability.

4. The thrust of the CEO's submissions is that the Explanatory Memorandum clarified that it was the impairments in relation to which the participant was assessed as meeting the access requirements upon which paragraph 34(1)(aa) turned.
5. In my opinion Item 46 of the Explanatory Memorandum is enigmatic. On the one hand it uses the irregular verb meets which, as I have stated above, is in the present continuous, not past, tense, where met might readily have been used if the past tense was intended. On the other, it states that paragraph s 34(1)(aa) will not require participants to repeatedly prove their disability. How that is so is not explained, although provision is made for the development of rules by the amendment to s 34(2). At this stage however, no rules have been made pursuant to paragraph (aa) that shed any light on the matter.
6. The starting point in construing a statutory provision is its text, considered in light of its context and purpose.[9]
7. Paragraph 34(1)(aa) appears in a section of the NDIS Act that sets out several criteria that must be satisfied as conditions precedent to the CEO deciding to approve a SoPS. Each of those other criteria must be satisfied at the time of the Tribunal's decision on review. In my view it would be inconsistent with the legislative scheme if s 34(1)(aa) was to be construed as having a different temporal point to the other s 34(1) criteria.
8. The legislative purpose served by s 34(1) is the assessment of those supports that are reasonable and necessary for a participant in the context of a linear and prospective planning process articulated through various provisions in Part 2 of Chapter 3 of the NDIS Act. It is a general principle that guides actions under the NDIS Act that, relevantly, "people with disability ... should have certainty that [they] will receive the care and support they need over their lifetime": s 4(3). As a matter of common sense, a person's needs for care and support may change over their lifetime. In my opinion it would be inconsistent with this general principle if a participant's 'need' was to be determined by reference to impairments found at a single, sometimes much earlier, point in time. This would result in a decoupling of the assessment of impairment related 'need' from the assessment of the supports that are reasonable and necessary to respond to need. That is illogical and, in my opinion, contrary not only to general principle 4(3), but also to the 'principle relating to plans', s 31(j), which requires, relevantly, that the preparation, variation, reassessment and replacement of a participant's plan, as far as is reasonably practicable, 'facilitate tailored and flexible responses to the individual goals and needs of the participant.' Only a symmetric, contemporaneous assessment of 'need' (which in the context of Chapter 3 I take to mean the significantly reduced functional capacity that results from permanent impairments) with an assessment of what is reasonable and necessary by way of support can give effect to these principles in my opinion.
9. Consequently, I conclude that the text of paragraph (aa), considered in light of its context and purpose, each indicate the issue is to be determined at the time the SoPS is approved (and reviewed), and not by reference to the matters that were before the delegate who determined the participant met the requirements for access to the NDIS at some earlier point in time.
10. As I have already stated, in conducting this independent review this Tribunal is required to be positively satisfied that each integer of the requirements of s 34(1) is met. The test for satisfaction is one of reasonable certainty. With respect to paragraph 34(1)(aa) that can only mean, in my opinion, that the Tribunal must satisfy itself that a requested support is necessary to address the needs of the participant in relation to a current impairment which, relevantly to this case, meets the disability requirements. That is, it must be permanent, result in substantially reduced functional capacity in one of the six life activity areas specified in s 24(1)(c), affect the participant's capacity for social and economic participation, and in relation to that impairment, the participant is likely to require NDIS supports under the NDIS for their lifetime.
11. In the Access Request - Supporting Evidence Form completed by Dr M Dawson, General Practitioner, which the Applicant submitted to the Agency on or about 27 November 2020 in support of her Access Request, Dr Dawson lists as her "primary impairment (ie the impairment with the most impact on daily life)": "[p]sychosocial disability Severe anxiety and depression. PTSD". In response to the question "does the person have another impairment that has a significant impact?" he stated "[d]egenerative spine condition, Chronic severe back pain, Canal Stenosis L4-5, L5-S1 Compression L-3-L-4"" which he states was diagnosed in 2003, was reviewed/confirmed in 2014, "is likely to be lifelong" ("yes") and that the "relevant treatment undertaken" in relation to that condition was anti-inflammatories in 2004, and Oxycontin in 2015. In answer to question 2.9 of that Form Dr Dawson stated that the Applicant also had other impairments, being Fibromyalgia and inflammation, and Anaemia. In answer to question 3 of that Form, Dr Dawson stated that regular physiotherapy, core strengthening programs and massage were early intervention supports that could help slow down further spine deterioration at the (then) current rapid rate.
12. In section 3 of the Form, in relation to each of the s 24(1)(c) activity areas, Dr Dawson expressed the following opinions:

Mobility - Yes, needs special equipment - Lisa has a degenerative spinal condition and requires a lifting pole to help her get out of bed. Lisa's GP helped her gain access to her superannuation several years ago to purchase a pure form motion electric base bed (before NDIS). This has helped with Lisa's sleep hygiene, but her mobility is still limited when trying to get out of bed. > > Communication - Yes, needs assistive assistance from other persons - Lisa becomes overwhelmed often during conversations with authority figures and is unable to assert herself due to PTSD. She requires ongoing support to understand what is being said in conversations and manage her emotions to respond appropriately. > > Social interaction - Yes, needs assistance from other persons (including physical assistance, guidance, supervision or prompting) - Lisa requires social support to help her access the community and has not been able to maintain friendships. Lisa suffers from severe triggers that are unpredictable in nature and a symptom of her PTSD. These fears can see Lisa staying inside her home for days at a time due to the stress and anxiety of what may occur if she ventures out to complete daily errands, health professional appointments, social engagements and tasks of interest to Lisa such as visiting a plant nursery to maintain her gardening, art and creative groups or simply walking for exercising or enjoying being outdoors. Lisa often spends many hours trying to process communication and relationships and worries about conversations and fears. > > Learning - [no tick box selected] - Lisa experiences forgetfulness and memory loss impacts on her ability to keep a job and being able to run her life in a manner that suits her. Lisa has difficulty taking in new information due to anxiety and PTSD - Lisa is interested in further building on her skills with further education but is unable to access or embark on such an endeavour on her own. Lisa would require assistance to help her build her skills confidence and gain regular employment including but not limited to tutoring, guidance, supervision and prompting. > > Self-care - Yes, need special equipment - required a special bed, has this now. > > Self-management - Yes, needs assistance from other persons (physical assistance, guidance, supervision or prompting) - Lisa is unable to manage effectively on her own on a consistent basis. She needs assistance to maintain order and continuity with her daily life. This would be achieved by regular therapy sessions which provides Lisa with tools to manage her life but also strategies to help her manage her decision making and problem solving. Lisa will have a brief period of high-functioning self-management only to follow with longer periods of a decline in this area where aspects of her life are neglected such as doctor's referrals and appointments as well as social engagements that are imperative to her mental health wellbeing. Lisa will also neglect her home, leading to excessive clutter which in turn creates further chaos and a sense of hopelessness and uncontrollability for Lisa. Constant therapy aids Lisa to maintain a more constant functional level of self-management.

13. The Applicant also submitted in support of her Access Request an Evidence of psychosocial disability form completed by her Psychologist, Ms Connor, which is dated 19 November 2020. In that Form Ms Connor states the Applicant's diagnoses and year of diagnoses to be "Severe PTSD (2006), Depression extremely severe (2005), and Anxiety, extremely severe". In response to question 2A of that Form which asks "please describe the impairments that the applicant experiences ..." Ms Connor stated the following in relation to the s 24(1)(c) activity areas:

Social interaction - requires counselling + support to manage - cannot maintain relationships - cannot consistently manage everyday situations within the community eg shopping - becomes highly emotional in many situations - flustered + upset, therefore cannot get needs met. > > Self-management - requires assistance - has poor recall and becomes easily confused - this affects daily tasks, decision-making, problem solving, financial matters + tenancy - Lisa requires ongoing support to assist her manage these areas to be able to ... independently - not under guardianship - wishes to manage herself but has many challenges. > > Self-care - fluctuates - requires assistance to maintain consistency - usually presents as groomed but has described times of depression where she does not maintain daily hygiene food/nutrition or take care of her own health - often overwhelmed - reduces care. > > Communication - requires assistance to process and manage communication - cannot consistently manage communication - has difficulty 'reading between the lines' and processing social cues. > > Learning - requires learning support - difficulty learning - absorbing information - becomes anxious in most social settings and has to manage triggers to PTSD - fear blocks her from explaining + getting needs met. > > Mobility - has to be managed - chronic spinal degeneration + pain - restricts movement - lifting and physical capacity - impairs work, standing and lifting and duration of hours.

14. In the "any further comments" section of the Form, Ms Connor states the following:

Lisa's psychosocial impairments - post traumatic stress disorder, depression + (severe) anxiety have been diagnosed at severe levels and significantly impact her capacity to manage herself and her finances, access the community independently, maintain/make relationships, retain, learn new information and consistently care for her own needs. She has trialled many psychoactive drugs/pain meds which have been discontinued and after many years of psychology has made small headway with significant set backs. Psychological treatment does appear to help her to live more independently however it is my impression that she requires substantially more support to function better as an independent adult but doesn't have the financial means to access this. Lisa has accessed psychological treatment under Better Access and Primary Health funded programs as well as a physio program called Medex however she cannot work, has no social support and very little community access.

15. Other documents before the delegate who assessed the Applicant as meeting the access requirements, included the following:

• - A clinical report to the Applicant's General Practitioner from a consultant radiologist dated 30 June 2014 which reports the outcomes of a CT Lumbosacral spine scan. The radiologist concludes that the Applicant has "canal stenosis at L4-5 and L5-S1 with compression of traversing and exiting nerve roots and neural foraminal compromise. Compression of left exiting nerve root identified at L3-4 level."
  • - A letter from a physiotherapist working for an entity trading as Artius dated 16 July 2014, which states that the Applicant had recently been receiving physiotherapy services from that entity because of chronic lumber pain due to trauma and subsequent degenerative changes to the lumbar intervertebral discs at the L4-5 and L5-S1 levels. The physiotherapist also states that the Applicant has secondary conditions being sciatica and intermittent cervical pain and dysfunction due to protective postures and maladaptive/compensatory movement patterns. In relation to the permanence of these conditions the physiotherapist reports: "on completion of our intervention, there was no significant increase in function, ROM [range of movement] or reported pain levels. Active intervention was useful for controlling acute exacerbations of pain but ineffective at altering the physical effects of her pathology."
  • - A report to the Applicant's General Practitioner from an orthopaedic surgeon dated 15 August 2014, which states, most relevantly:

On examination Lisa has somewhat reduced lumbar flexion. Extension and left and right lateral bending were reasonable. She cold heel walk and toe walk today. Straight leg raising was negative bilaterally and she had good range of motion in both hips without pain. She had normal sensation, power and reflexes in both lower limbs. Palpation of her lumbar spine revealed mild to moderate tenderness at the L5-S1 level. > > I have reviewed plain x-rays and a MRI scan of Lisa's lumbar spine taken recently. These show disc degeneration at L3-4, L4-5 and L5-S1. At L3-4 there is an annular tear but no specific neural compression. At L4-5 there is a right paracentral disc protrusion which causes mild to moderate narrowing of the central canal but again no significant neural impingement at that level. At L5-S1 there is quite advanced disc degeneration with modic changes either side of the disc. There is a significant central disc bulge abutting the S1 nerve roots and there is also mild to moderate narrowing in the exist foramen bilaterally. There is no clear degeneration of the facet joints at any level. > > Lisa has symptomatic degenerative disc disease probably coming mostly from the L5-S1 level but potentially with contribution from L4-5 and L3-4. She has had chronic low back pain for 11 years now and the chances of it spontaneously resolving are zero. Therefore, she either needs to continue to manage it with core muscle strengthening and physiotherapy or consider fixing the underlying problem which would involve surgery on the discs in the lower lumber spine. Prior to that, discography would need to be performed to confirm the pain generators. I have discussed those issues with her today. > > Unfortunately Lisa is without the benefit of private health insurance and therefore surgery would not be financially viable for her so currently she is going to try to continue to manage her symptoms with core muscle strengthening and aerobic fitness and flexibility. Unfortunately the surgery she requires for her lower back is not accessible through the public system. ....

• - An Australian Government Job Capacity Assessment Report dated 26 September 2014 in which the Applicant is assessed as, among other things, having a "permanent" spinal disorder and psychological/psychiatric disorder, the latter of which has a severe functional impact.
• - A letter addressed "to whom it may concern" from an Occupational Therapist attached to the Interdisciplinary Persistent Pain Centre of the Gold Coast Health Service District dated 20 July 2015 which outlines the Applicant's participation in an intensive pain management program (PACE) over a 4 week period.
• - Reports to the Applicant's General Practitioner from a Clinical Psychologist in private practice dated 21 August 2016, 18 November 2016 and 11 December 2017 which outline the progress of treatment under a GP Mental Health Care Plan dated 31 May 2016, and another that commenced on 5 December 2017.
• - A medical report prepared by a Clinical Psychologist attached to the Queensland Government dated 24 May 2017 which records the Applicant as having three diagnoses, being Complex PTSD "which has led to a host of maladaptive coping strategies and issues with opening up and trusting people", anxiety, characterised by "generalised panic", and depression, which is described as episodic and derivative of Complex PTSD and Anxiety.
• - A report of a functional assessment conducted by an occupational therapist working for Primary and Community Care Services Limited, dated 12 November 2019. The stated purpose of that report was to "assess the impact of [the Applicant's] long term psychological and secondary physical disabilities on her functional capacity to perform her daily living activities and access community activities". In relation to the Applicant's impairments the occupational therapist states:

... Lisa has a primary diagnosis of Post-Traumatic Stress Disorder (PTSD), she reported having a traumatic childhood and continues to be re-triggered daily whilst performing various tasks within the community. Lisa reported her mental health has declined steadily over the past 13 years. > > Lisa's secondary physical diagnosis Disc Prolapse (L3/L4 and L5/S1) the condition was confirmed as permanent in 2011 by Orthopaedic Surgeon [name], surgical intervention was recommended at this point however Lisa declined due to risks associated with spinal surgery. Lisa's diagnosis of fibromyalgia was confirmed in 2015. She advised her physical diagnosis compounds and impacts her ability to effectively manage her psychological health. > > Treatments Trialled > > Psychosocial diagnosis - Lisa has trialled various medication (mood stabilisers, anti-depressants and anti-psychotics) as well as regular treatment sessions with psychologists over the years (therapies include CBT [Cognitive Behaviour Therapy], psychoeducation and relaxation skill training). > > Physical diagnosis - Pain clinic attended 2013, medication trialled (Valium and codeine base), currently attending 2 x weekly exercise physiology treatment sessions to maintain functional baseline and maintain pain levels.

In relation to activities of daily living the author of the report opines the Applicant has with respect to:

Limited hygiene practices and decreased personal are due to physical impairment, this includes:

• - Previous falls when stepping in/out of the shower due to reduced balance (shower is above the bath, approximately 50cm step)
• - Due to these previous falls, Lisa has developed a fear of showering therefore she will shower only every third day
• - When Lisa is experiencing muscle spasming in her lower back or high levels of pain in her arms and shoulders, she has reduced range of motion inclusive of decreased ability to wipe her backside, change outfits, as and brush her hair etc.

Lisa is unable to effectively prepare meals when feeling overwhelmed, due to inability to organise, plan or sequence tasks in this state.

Lisa has difficulties performing her domestic cleaning tasks due to feeling overwhelmed and shutting down when reviewing the number of tasks required. Lisa is also limited due to physical impairment, she has reduced range of motion and pain in her lower and upper limbs therefore reduced ability to vacuum, clean the bathroom or maintain hygienic home environment. During the assessment her home appeared to be moderately tidy ...

Lisa has poor decision making skills, which impacts her ability to manage her finances effectively, she will often over-spend, put items through 'After Pay' and at times [be] unable to afford necessities such as food.

Lisa works significantly reduced hours (up to 8 hours per week) due to inability to cope mentally, regulate her emotions and being unreliable due to constantly being triggered whilst working and in turn reduced executive functioning.

Lisa avoids grocery shopping due to fear of being in crowds, reduced ability to make decisions and difficulties regulating her emotions which increases her vulnerability. When Lisa is in a shop, she is over-stimulated by the noise, light and smell; it is assumed she has sensory processing dysfunction adding to difficulties with executing this task. Lisa has a history of overspending in attempt to leave the supermarket quickly.

Lisa has difficulties travelling to new locations due to becoming confusing [sic] in attempt to use maps. Lisa avoids travelling to these places leading to further isolation. Lisa is unable to use public transport due to feeling unsafe and previous trauma experienced whilst travelling on the bus at a young age.

Lisa has extreme difficulties communicating her needs or being understood by others therefore she is unable to form and maintain relationships, due to complex PTSD. Lisa becomes easily confused and does not process new information well in social situations. Lisa does not have a close relationship with her family and has limited friends, therefore is extremely isolated.

Lisa is unable to effectively regulate her emotions which means she will become easily frustrated and then she will become verbally aggressive; this significantly increases her vulnerability.

Learning:

Lisa's learning capacity and short-term memory is impacted due to effects of trauma and anxiety. During the assessment Lisa had multiple notebooks which she was reviewing constantly which she had detailed notes to ensure she didn't miss anything and wrote notes, due to poor ability to recall information. Lisa has reduced written comprehension and will become easily confused.

Mobility:

Lisa has difficulties mobilising for periods exceeding 15 minutes due to chronic back pain, this limits her ability to participate in community activities.

• - Two reports to the Applicant's General Practitioner from a Rheumatologist dated 29 July 2017 and 11 September 2017 which report on investigations for ankylosing spondylitis and fibromyalgia. The Rheumatologist concludes that the Applicant does not have ankylosing spondylitis or non-radiographic spondyloarthropathy, but does have secondary fibromyalgia due to joint hypermobility syndrome in addition to her lumber spine degeneration.

1. By letter dated 8 February 2021 a delegate of the CEO notified the Applicant that her Access Request had been successful. The totality of the substantive content of that letter is in the following excerpt:

I am pleased to let you know that your request to access the National Disability Insurance Scheme (NDIS) has been successful. I have decided that you meet the age, residence and disability requirements outlined in the National Disability Insurance Scheme Act 2013 to become a participant from 8 February 2021. > > Now that you are a participant you can:

• Start thinking about your current and future goals
• Consider what supports are best for you, and
• Consider how your supports are best managed.

1. As indicated above, at the end of the hearing I called for the Agency's file records in relation to the Applicant's Access Request. No deliberative document was produced in response to that request. I thus cannot know if the any impairment derivative of the Applicant's spine condition and Fibromyalgia was considered by the delegate who assessed the Applicant for access to the scheme, and if so, what the outcome of that assessment was. However, it is clear from the material set out above that the Applicant's spine condition and Fibromyalgia were before the delegate when the access decision was made.
2. Each participant in the NDIS has an electronic client account managed by the Agency. That account has a "dashboard" with icons that link to different divisions of the electronic file. The icon "disabilities" links to a page which has two fields: "Primary" and "Secondary". Each field is divided into the following tabs: "reported impairment", "assessed impairment", "effective start", "effective end", and "onset date." In the Primary field the reported impairment is Post Traumatic Stress Disorder (PTSD), which is also the assessed impairment, which is coded F43, its effective date is 8/2/2021, its effective end is 31/12/9999 and there is no onset date entry. In the Secondary field the reported impairments are Major depressive illness and Anxiety Disorders, both of which are also the assessed impairments, which are coded F32 and F41 respectively, their effective dates are both 8/2/2021 and their effective end dates are both 31/12/9999 and neither record an onset date.
3. The "disabilities" tab of the Applicant's client account conflates the separate concepts of "disability", "health condition" and "impairment". PTSD, Major Depression and Anxiety Disorder are mental health conditions, not impairments. The relevant statutory test requires the decision-maker to determine with precision if the prospective participant "has one or more impairments to which a psychosocial disability is attributable". In other words, it is necessary to identify the impairment or impairments that are causal of the psychosocial disability. A psychosocial disability is described in the Agency's operational policy as "reduced capacity to do daily life activities and tasks due to your mental health".[10] Thus, the statutory task is to identify with precision the impairment or impairments that are derivative of the mental health condition which reduce the persons functional capacity with respect to the activities and tasks of daily life (which is their psychosocial disability).
4. The practical implication of this is that even if paragraph 34(1)(aa) did require me to be satisfied the supports in dispute addressed the Applicant's needs arising from an impairment in relation to which she was assessed as meeting the disability requirements in 2021, the Agency's records are unable to reveal what those impairments were.
5. I now turn to the present, as I must, for the reasons set out above.
6. Additional to the materials I have identified above that were before the delegate who determined the Applicant met the access requirement, the Tribunal has before it a report addressed "to whom it may concern" from Mr R Newton, Sports Physiotherapist, dated 16 March 2023 who is attached to an entity trading as Pindara Physiotherapy. In that letter Mr Newton states that he had at that time been treating the Applicant for over 12 months, and that she had been treated by a colleague for some time prior to that. The treatment is explained as follows:

... Lisa has been attending our MEDEX, which is a fully supervised strength and conditioning set up. > > This is supervised by Exercise Physiologists ... > > Lisa's program typically involves two MEDEX sessions per week and a physiotherapy session once every two weeks, but occasionally once a week. > > From a purely physical perspective, the physiotherapy program has a strong focus on mobility. > > This mobility allows Lisa to function at a much better level during the day. It also allows her to continue with her physical conditioning program with [another physiotherapist] who goes through strength and conditioning particularly focused on Lisa's spinal structure. > > Whilst this focus has a physical benefit it has an even greater emotional and psychological benefit for Lisa. It keeps her pain levels under control which in turn keeps her much more stable emotionally and mentally and without this we feel she would deteriorate quite markedly from this psychological viewpoint. > > The program keeps confidence in her body, keeps her pain levels from some chronic injuries under control, and keeps her much more stable emotionally. > > This fits in absolutely beautifully with a biopsychosocial approach to management and as such we feel it is very important that she maintains this level of management long term.

7. I also have in evidence a letter addressed to whom it may concern from the Applicant's General Practitioner, Dr Dawson, dated 21 March 2023 in which he states (relevantly):

....[the Applicant] has struggled with multiple health issues which stem from significant anxiety, complex PTSD and major depression, she struggles with chronic severe lower back pain which exacerbates on regular occasions based on simple activities and has incapacitated her which often by itself further exacerbates her anxiety because she has a sense of helplessness and feels she is unable to cope and perform day-to-day activities, there have been occasions when she has been bedridden due to an acute flareup she has had a terrible time performing simple tasks because of heightened states of anxiety. > > Working with the physiotherapist has helped her maintain a wonderful balance and maintaining her pain levels which has significantly contributed to the benefits of helping with her mental health. > > ...

8. The CEO commissioned an independent functional capacity assessment from an occupational therapist attached to Ability Action Australia which took place on 15 May 2023 (independent expert). A report dated 7 June 2023, based on that assessment is in evidence.[11] I note that the Applicant objects to this report, but I am satisfied that it contains probative material which is of assistance to me in this review.
9. In his report the independent expert summarises the Applicant's health conditions and their functional impact from the material with which he was briefed as follows:

... [the Applicant has] a primary diagnosis of Complex Post-Traumatic Stress Disorder (CPTSD) [and] also lives with the following diagnoses"

• Anxiety
• Major Depression
• Disc Degeneration
• Spinal Stenosis
• Chronic back pain
• L3-L4, L4-L5, L5-S1 Nerve Compression
• Fibromyalgia and inflammation
• Anaemia
• Rheumatoid Arthritis

The functional impact of these disabilities includes:

• Difficulties with managing emotions - Lisa experiences trouble managing her moods and becomes upset, scared or angry
• Feelings of helplessness - Lisa experiences low self-esteem and confidence, impacting her participation and engagement in daily tasks.
• Flashbacks or nightmares - Lisa experiences periods of hypervigilance or panic related to traumatic events in the past. This also impacts Lisa's sleep due to experiencing nightmares.
• Chronic pain and muscle stiffness - Lisa experiences lower back pain, impacting certain movements such as lifting, flexion and range of motion
• Reduced mobility - Lisa's pain and reduced range of motion in her back impact on her ability to walk long distances and manage transfers without assistance.

1. The independent expert administered three standardised assessment tools, the World Health Organisation Disability Schedule 2.0 (WHODAS 2.0), the Abbreviated Life Skills Profile (LSP-16) and the Care and Needs Scale 2.0 (CANS). The outcomes of these assessments are comparable. It is unnecessary for present purposes to set out his detailed findings except by way of overview. However, I note that in reaching the conclusions I have about the Applicant's functional capacity, I have had regard to his findings and discussion in relation to the Applicant's function in each of the s 24(1)(a) life activity areas at pages 66 to 74 of the Hearing Bundle.
2. The outcomes of the WHODAS assessment are summarised following:

• Lisa's WHODAS score indicates that she has extreme difficulty in the domain of 'participation in society', severe difficulty in the domains of 'understanding and communicating', 'getting around,' and 'getting along with people', moderate difficulty in the domain of 'self-care', and mild difficulty in the domain of 'life activities',
• Lisa's extreme difficulty score in the domain of 'participation in society' is consistent with what was reported by Lisa during the assessment. Lisa highlighted that she has been significantly emotionally impacted by her PTSD, and has severe difficulty joining in community activities the same way as anyone else can.
• Lisa's severe difficulty score in the domain of 'understanding and communicating' is consistent with what was observed by the OT and reported by Lisa during the assessment. Lisa indicated she has extreme difficultly analysing and finding solutions to problems in day-to-day life, and severe difficulties with both remembering important things and engaging in conversation. This was evident during the assessment as Lisa required repeated prompting of what question was asked and what she was talking about.
• Lisa's severe difficulty score in the domain of 'getting around' is consistent with what was reported by Lisa during the assessment. Lisa indicated that she is unable to walk a long distance such as a kilometre and has severe difficulty standing for long periods. Lisa would experience pain and increased fatigue, making it difficult for her to complete other important occupations throughout the day.
• Lisa's severe difficulty in the domain of 'getting along with people' is consistent with what was observed by the OT and reported by Lisa during the assessment. Lisa indicated that she has extreme difficulty maintaining friendships, and severe difficulty with both making new friends and getting along with people who are close to her. The OT observed Lisa become very anxious and overwhelmed by the OT entering her home and meeting her for the first time. Lisa reported this regularly occurs when meeting people win authority.
• Lisa's moderate difficulty score in the domain of 'self-care' is consistent with what was observed by the OT and reported by Lisa during the assessment. Lisa indicated that she has severe difficulty washing her whole body and finds it difficult to stay by herself for a few days. Lisa reported that without Support Workers, she would have difficulty leaving the home, which impacts her attendance to appointments and would result in social isolation.
• Lisa's mild difficulty score in the domain of 'life activities' is consistent with what was reported by Lisa during the assessment. Lisa indicated that she has moderate difficulty taking care of her household responsibilities and completing them to both an appropriate standard and as quickly as needed. This is due to pain, being unorganised, forgetting to complete tasks and becoming overwhelmed when tasks become too large. Lisa reported that these tasks become harder depending on how much pain she is in.

1. For the purposes of the paragraph 34(1)(aa) enquiry I find that the Applicant's health conditions are PTSD, Major Depression, Anxiety Disorder, Fibromyalgia and degenerative Stenosis and Compression affecting the Lumbar and Sacral vertebra of her spinal column.
2. On my assessment of the evidence that was before the delegate who determined the Applicant's access request and the additional evidence that is before me, with respect to s 24(1)(a) and paragraph 34(1)(aa), and adopting the classification framework of the International Classification of Functioning, Disability and Health (ICF),[12] I am satisfied that the following impairments are derivative of these health conditions:
   1. Impaired global mental functions, being:
      1. Global psychosocial functions,[13]
      2. Temperament and personality functions,[14] specifically, psychic stability,[15] openness to experience,[16] optimism,[17] and confidence,[18] and
      3. Energy and drive functions,[19] specifically, energy level,[20] and motivation.[21]
   2. Impaired specific mental functions, being:
      1. attention functions,[22] specifically, the function of sustaining attention,[23]
      2. memory functions,[24] specifically, the function of short-term memory,[25]
      3. emotional functions,[26] specifically, appropriateness of emotion,[27] regulation of emotion[28] and range of emotion,[29]
      4. thought functions,[30] specifically control of thought,[31]
      5. higher-level cognitive functions,[32] specifically the functions of organisation and planning,[33] insight,[34] and problem-solving.[35]
   3. Impaired sensory functions and pain, being sensation of pain,[36] and pain in the back,[37]
   4. Impaired structures of the nervous system,[38] being the structure of the spinal cord and related structures,[39] specifically compression of the spinal nerves,[40]
   5. Impaired structures related to movement,[41] being to the structure of the trunk,[42] specifically to the structure of the vertebral column,[43] and the muscles of the trunk.[44]
3. For the purposes of s 24(1)(a) and paragraph 34(1)(aa) I find the impairments set out in paragraphs (i) and (ii) above are impairments to which a psychosocial disability is attributable, that the impairment set out in paragraph (iii) is a sensory, or in the alternative, a neurological impairment, that the impairment set out in paragraph (iv) is a neurological impairment and that the impairments set out in paragraph (v) are physical impairments.
4. It is not in issue that the Applicant's impairments to which her psychosocial disability is attributable are permanent, or likely to be permanent, for the purposes of s 24(1)(b) and paragraph 34(1)(aa). I make that finding based on the evidence of I have set out above. Having regard to the Becoming a Participant Rules I am satisfied that there is no form of treatment available to the Applicant that is likely to remedy these impairments. I am satisfied that conclusion can be reached confidently without any further assessment of these impairments. These are permanent impairments that may fluctuate in intensity over time, but they will not be remedied.
5. Nor is it now[45] in issue that the Applicant's pain, neurological and physical impairments are permanent for the purposes of paragraph 24(1)(b) and paragraph 34(1)(aa). I also make that finding based on the evidence I have set out above. This evidence satisfies me that these conditions are of long standing and that there is no form of treatment available to the Applicant that is likely to remedy these impairments. I am satisfied that conclusion can be reached confidently without any further assessment of these impairments. These are permanent impairments that may fluctuate in intensity over time, but they will not be remedied.
6. As I understand it, the CEO accepts that the Applicant's impairments to which a psychosocial disability is attributable result in substantially reduced functional capacity for communication, social interaction and self-management. In any event, upon close consideration of the evidence I have set out above I am satisfied that this is so. In very short summary the Applicant experiences severe distortions in receptive communication, is severely dysfunctional in social interaction, and is severely disorganised. That is sufficient for the s 24(1)(c) disability requirement to be satisfied for the purposes of the paragraph 34(1)(aa) enquiry in relation to the impairments attributable to her psychosocial impairment.
7. I note that my assessment of the evidence does not lead to the conclusion that the Applicant's impairments in relation to which a psychosocial disability is attributable lead to substantially reduced functional capacity for mobility, learning or self-care. But for present purposes, it is unnecessary to further elaborate my reasoning towards that conclusion because I have found the Applicant to meet the s 24(1)(c) disability requirement in relation to social interaction and self-management.
8. I should be explicit that I make these findings as to reduction in functional capacity having regard to the WHODAS difficulty ratings. As I have explained in Foster[46] in my opinion a substantial reduction in functional capacity should be understood in terms of the person experiencing a degree of difficulty in performing a task or action that is 50% or greater than that experienced by another person without that person's impairments.[47]
9. The CEO does not accept that the Applicant's pain, neurological and physical impairments result in substantially reduced functional capacity.
10. For the reasons I have explained in Burrows[48] the scope of the s 24(1)(c) activity areas is to be treated as determinate and their content is supplied by the Agency's relevant operational guidelines as elaborated by the ICF activity descriptions where appropriate.[49]
11. Having regard to that, the communication activity area is concerned with:

- 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)

as elaborated in Chapter 3 of the ICF, d310 to d399.

1. On the evidence before me I am not satisfied that the Applicant's pain, or her neurological or physical impairments, result in substantially reduced functional capacity for communication. As I discuss further following, the Applicant's pain does result in an exacerbation of the impairments to which a psychosocial disability is attributable, and that disability results in substantially reduced functional capacity to carry out the tasks and actions associated with receptive communication (d310 and d315 of the ICF specifically), but pain by itself does not result in that substantially reduced function. The Applicant's neurological and physical impairments do not have any impact of the Applicant's functional capacity for communication, other than that they are generative of pain.
2. The social interaction activity area is concerned with:

- tasks associated with making and keeping friends,

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

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

1. That short description of these tasks and actions may be elaborated by reference to the tasks and actions specified in the d710, d720, and d730-d750 activity clusters in Chapter 7 of the ICF. On the evidence before me I am not satisfied that the Applicant's pain, or her neurological or physical impairments, result in substantially reduced functional capacity for social interaction. In the same way that I have described in relation to communication, the Applicant's pain does result in an exacerbation of her impairments to which a psychosocial disability is attributable, and that disability results in substantially reduced functional capacity to carry out the tasks and actions associated with social interaction, but pain by itself does not result in that substantially reduced function. The Applicant's neurological and physical impairments do not have a substantial impact of the Applicant's functional capacity for social interaction, other than that they are generative of pain.
2. The learning activity area is concerned with:

- 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)

1. The tasks and actions involved in learning are elaborated in Chapter 1 of the ICF, d110 to d199, excepting d160 to d179 (Applying knowledge) which falls within the self-management life activity area.[50] They involve the broad categories of purposeful sensory experience (watching and listening), other purposeful sensing (mouthing, touching, smelling, tasting), basic learning (copying, learning through actions and objects, acquiring language and additional language, rehearsing, acquiring concepts, acquiring information, learning to read, learning to write, learning to calculate, acquiring skills), and applying knowledge (focusing attention, thinking, reading, writing).
2. On my assessment of the evidence before me I am not satisfied that the Applicant's pain and her neurological and physical impairments result in substantially reduced capacity to carry out any of the tasks and actions involved in learning. As I have said above, I accept that pain is exacerbating of the Applicant's impairments to which a psychosocial disability is attributable. It therefore impacts on her ability to acquire skills, focus attention, and think, in this indirect way, but it is not generative of substantially reduced functional capacity for learning by itself in my assessment.
3. The mobility activity area is concerned with:

- 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.

1. The tasks and actions involved in mobility are elaborated in Chapter 4 of the ICF, d410 to d499.[51] They involve the broad categories of changing and maintaining body position, carrying, moving and handling objects, walking and moving, and moving around using transportation.
2. On the evidence before me I am satisfied that the Applicant's pain and her neurological and physical impairments result in some functional limitations in mobility. The independent expert notes the Applicant finds it difficult to walk long distances and stand for an extended period. Dr Dawson notes that the Applicant has some functional limitation transferring from bed to a standing position. The May 2017 functional capacity assessment also refers to some history of falls transferring from the bath. However, I am not satisfied that these limitations are substantial in the sense that the applicant experiences a degree of difficulty greater than 50% of that of a person without those impairments. I note the independent expert's conclusion that the Applicant had severe functional limitation in mobility. I am puzzled by that conclusion on the evidence before me. He was not called as a witness and in the absence of some better explanation as to how that conclusion was arrived at, I am not prepared to give that finding weight.
3. The self-care activity area is concerned with:

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

1. The tasks and actions involved in self-care are elaborated in Chapter 5 of the ICF, d510 to d599. They involve the broad categories of washing oneself, caring for body parts, toileting, dressing, eating, drinking and looking after one's health.
2. The functional capacity assessment conducted in May 2017 provides some evidence that the Applicant's pain and physical impairments impacted at that time on her ability to perform personal hygiene when toileting, to dress and to brush her hair. Additionally, the evidence establishes to my satisfaction that the exacerbating effect pain has on the Applicant's impairments to which her psychosocial disability is attributable sometimes result in a reduction in function capacity for self-care in terms of reduced motivation for self-care. However, I am not satisfied on the totality of the evidence that the degree of reduction in functional capacity is sufficient to be substantial.
3. The self-management activity area is concerned with:

- 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. The tasks and actions involved in the self-management life activity area are elaborated in Chapter 1 of the ICF, d160 to d179, specifically, focusing attention, calculating, problem solving, and making decisions.
2. As I have explained above, I am satisfied that the Applicant experiences substantially reduced functional capacity for self-management due to her impairments to which her psychosocial disability is attributable. As I have also explained above, I am satisfied that pain has an exacerbating effect on those impairments. However, the evidence does not persuade me that the Applicant's pain, or her neurological and physical impairments by themselves result in substantially reduced functional capacity for self-management.
3. With respect to the paragraph 24(1)(d) disability requirement, I must be satisfied that Applicant's impairments affect her capacity for social and economic participation. This is a relatively low threshold. The CEO does not contest that each of the Applicant's impairments do have this effect. I am also satisfied on the evidence before me that this is the case. In very short summary, her impairments to which her psychosocial disability is attributable clearly result in severe difficulties interacting with other people in the community, including in the context of employment and socialising, and pain arising from her neurological and physical impairments affects her motivation to leave her home, and sometimes even her bed.
4. It remains to consider if the Applicant is likely to require NDIS Supports under the NDIS for her lifetime. I do not understand this disability criterion to be in issue. The Applicant has been a participant in the NDIS since February 2021. There is no suggestion in the evidence that she has ceased to be eligible for or to require NDIS support. Each of her requested supports has been tested against the s 34(1)(f) requirement by reference to the Transitional NDIS Supports Rules and I have determined that they are a NDIS Support.
5. For the foregoing reasons, for the purposes of paragraph 34(1)(aa) I conclude that the Applicant continues to meet the disability requirements because of her permanent impairments to which her psychosocial disability is attributable. However, I am not satisfied that she meets the disability requirements with respect to her pain, neurological and physical impairments. While these impairments are permanent, affect her capacity for social and economic participation, and result in a reduction in functional capacity for mobility, that reduction in functional capacity is not substantial for the purposes of s 24(1)(c). The primary functional impact of these impairments is the exacerbation of her impairments to which her psychosocial disability is attributable.
6. Note (b) to s 34(1) states, relevantly, that a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements may be affected by a variety of factors, including the impact of another impairment in relation to which the participant does not meet that requirement.[52] For the reasons stated above it appears to me that the Applicant's pain, neurological and physical impairments have just such an impact, and that this is relevant to my assessment of what support is necessary to address the needs of the Applicant arising from the impairments to which her psychosocial disability is attributable.
7. In his submissions Counsel for the CEO contended, having regard to the meaning of the words "necessary", "address", "need", and "arise", as they appear in paragraph 34(1)(aa), that the statutory test is to determine if the requested support is "indispensable in dealing with a necessity which has resulted from an impairment in relation to which the participant, [relevantly] meets the disability requirements [and with regard to Note (b) that] a factor in determining whether a proposed support is indispensable in dealing with the necessity ... may be the effect of another impairment which does not satisfy the disability requirements".
8. The word "necessary" also appears in the chapeau of a s34(1) as a component of a composite phase[53] that constitutes the overall test that is to be applied in determining if a requested support ought to be approved for inclusion in a SoPS. Although "necessary" appears in paragraph (aa) decoupled from the word "reasonable" it should be interpreted and applied consistently with its use in the composite phrase in my opinion.
9. Regard must also be had to the context and purpose of the s 34(1) test in the overall scheme of the NDIS Act. It is to determine what supports are reasonable and necessary to ameliorate or resolve the substantially reduced functional capacity that a participant experiences due to impairment so that they are supported to pursue their goals and maximise their independence; live independently and be included in the community as fully participating citizens; and to develop and support their capacity to undertake activities that enable them to participate in the community and in employment.[54]
10. What is "necessary", in the sense of being "indispensable" or "required", to "address", in the sense of "deal with" or respond to", must be understood in terms of these outcomes to be achieved by the provision or funding of NDIS Support. The words "disability support needs" and "arising from" should be understood as referring to the participant's impairment related substantially reduced functional capacity (the eligible impairment). With reference to Note (b), and relevantly to this case, a participant's "disability support need", being their substantially reduced functional capacity, may be affected by additional aggravating factors which include the impact of another impairment in relation to which they do not meet the disability requirements. Nevertheless, the support must be necessary to address an eligible impairment as impacted by that aggravating impairment. That is, Note (b) does not decouple the support from the eligible impairment and attach it to the aggravating impairment, it only establishes a nexus between the primary and aggravating impairment
11. I now turn to apply this analysis to the requested supports that are in dispute in this case.
12. The Applicant requests the approval of funding for an additional 2 hours per day, 7 days per week for assistance with self-care activities, being an additional 14 hours per week to the 14 hours per week for which she is already funded for this activity.
13. The Applicant's impairments to which her psychosocial disability is attributable result in substantially reduced functional capacity in the communication, social interaction and self-management life activity areas. They do not result in substantially reduced functional capacity in any other life activity area, although they do have consequential impacts. For example, her disorganisation impacts on her self-care in the form of hoarding, and her poor financial management impacts on her healthy eating. The Applicant's need for this requested support, and the sufficiency of this support, must therefore be considered in this context.
14. The fundamental purpose of NDIS support must also be kept in mind. Relevantly to this request, it is to support the Applicant to pursue her goals and become more independent and to live independently. Such support should therefore be enabling, not dependency creating. It should not result in formal supports, being a disability support worker, performing tasks and actions that the Applicant could reasonably do herself already, or which she could reasonably be supported to learn to do.
15. In terms of general approach, it is also important to consider this request in the context of the package of supports that constitutes the Applicant's SoPS. In this respect the SoPS should be viewed as an integrated package of supports. Each support should not be viewed in isolation.
16. In relation to the request for additional assistance with self-care, it is to be borne in mind that the Applicant's SoPS includes funding for 2 hours per week of personal domestic activities, 2 hours per month of house and yard maintenance and three substantial capacity building supports, being $3,747.84 for counselling, $5,819.70 for occupational therapist support, and $3,605.04 for support coordination.
17. I now turn to apply the s 34(1) reasonable and necessary criteria in relation to this requested support.
18. With respect to paragraph 34(1)(aa) I am satisfied that this requested support does relate to a disability support need that arises from impairments to which the Applicant's psychosocial disability is attributable (her motivation, volition and disorganisation related impairments, as examples).
19. With respect to paragraph 34(1)(a) I am also satisfied that it is a form of support that would assist the Applicant to achieve her goals and aspirations as these are set out in her Statement of Goals and Aspirations (see paragraph 35 above). In this respect, the support would assist the Applicant to better manage and reduce the impact of her psychosocial disability and assist her with organisation and the development of her organisational skills, among other things.
20. With respect to s 34(1)(b) I am also satisfied that this support would assist the Applicant to undertake activities that would facilitate her social and economic participation. Just as one example of this, the Applicant lives in rental accommodation which she shares with one or more unrelated adults. Assistance with self-care in the form of domestic organisation is facultative of maintaining that tenancy which is both a social and economic participation outcome.
21. With respect to paragraph 34(1)(e) this is not a form of support that one might reasonably expect family members or other informal supports to provide to the Applicant, other than on an infrequent incidental basis. In any event, the evidence is to the effect that the Applicant is disconnected from family and has few friends.
22. I do not understand any of these findings to be controversial, so touch on them briefly.
23. The difficulty for the Applicant in relation to this requested support is that it is not reasonable and necessary having regard to the s 34(1)(c) and (d) criteria. The Applicant has impairments that are attributable to a psychosocial impairment. She has pain and some immobility attributable to neurological and physical impairments. These impairments are exacerbating of her impairments to which her psychosocial disability is attributable, but they do not result in substantially reduced functional capacity in any of the s 24(1)(c) life activity areas. In other words, the Applicant retains substantial physical capability in relation to the tasks and actions involved in daily living. The Applicant does not require physical assistance of a disability support worker with any self-care activity or to mobilise.
24. The CEO has already approved substantial funding for self-care in the Applicant's current plan, being 14 hours per week, plus 2 hours weekly cleaning, plus 2 hours monthly gardening. Fourteen hours of support for self-care activities is substantial support, given the nature of the Applicant's impairments, and it can be used flexibly (more or less on a given day etc).
25. Other than the Applicant's oral evidence, the only evidence that tends to support this request is the independent expert who recommended that the Applicant would benefit from 40 hours per week disability support worker assistance. He reached that conclusion based on the results he obtained from the CAN assessment. The independent expert was not called as a witness, and I therefore only have his report to consider. I am puzzled by this recommendation and by his use of the CAN assessment to arrive at it. CAN is an assessment tool used to assess the support needs of persons with acquired brain injury, who generally have high physical support needs.[55] The Applicant does not have an acquired brain injury, and she does not have high physical support needs. The independent expert also appears to arrive at this recommendation substantially because of the Applicant's self-reports of her support needs and existing daily activity schedules, rather than because of an objective assessment of her functional limitations and the support that is reasonably necessary to respond to those. In the absence of a satisfactory explanation of these and other matters, I am not prepared to give this recommendation any weight.
26. In her oral evidence the Applicant sought to justify her need for this additional support in terms of the intensity of her psychosocial disability, the impact of her anxiety and depression on her daily function, and her extreme social interaction difficulties, including with people within her household. She referred to her disability support workers being overwhelmed by her support needs and to them 'burning out' because of the demands they face in supporting her.
27. I note that if both the Applicant's self-care and social, community and civic participation support requests were to be approved, she would have funding for disability support workers to be present with her 56 hours per week, or 8 hours a day (on average). Given the nature of the Applicant's impairments, I consider there is a likelihood that this level of support would create or foster dependence, rather than build independence. It would result in support workers doing things that the Applicant ought reasonably do herself, or which she could reasonably learn to do.
28. As I have said above, the Applicant's SoPS is to be viewed as an integrated package of supports. She has available to her substantial funding for counselling support and occupational therapy. Those clinical supports ought to assist the Applicant to develop behavioural strategies that build her functional capacity to undertake the tasks and actions involved in daily living, including by indicating the ways in which disability support workers can assist in this without generating dependence.
29. The Applicant may have high emotional needs and affect. However, while disability support worker assistance may incidentally involve a degree of affective or emotional support in the form of encouragement, reassurance and empathy, its primary purpose is instrumental. It involves the provision of practical and tangible assistance to a participant to undertake tasks and actions of daily living. NDIS support is directed towards independence and social participation, including the development of freely given relationships with others in the general community. It is not intended to create or foster emotional dependence on formal supports.
30. Having regard to this I am not satisfied that additional assistance with self-care to that which is already funded is reasonable and necessary. I am satisfied that the Applicant already has sufficient funding in her SoPS to obtain supports that will enable her to undertake the instrumental tasks and actions related to self-care and domestic activity. With respect to the s 34(1)(c) criterion, it would not represent value for money to approve more support than the Applicant needs. Having regard to Rule 3.1(f) I am not satisfied that it would increase the Applicant's independence. It is more likely to create and foster dependence. In this respect, I am not satisfied with respect to s 34(1)(d) criterion that additional support of this kind would be beneficial for the Applicant.
31. For the foregoing reasons, I do not approve the Applicant's request for an additional 14 hours of support with self-care activities.
32. The Applicant requests the approval of 4 hours per day, 7 days per week, assistance with social, community and civic participation, which she confirmed at the hearing was inclusive of the 6 hours for such activities for which she is already funded. In order words, she requests the approval of an additional 22 hours of this form of support per week.
33. With respect to paragraph 34(1)(aa) I am satisfied that this requested support does relate to a disability support need that arises from impairments to which the Applicant's psychosocial disability is attributable (her motivation, volition, interpersonal and disorganisation related impairments, as examples).
34. With respect to paragraph 34(1)(a) I am also satisfied that it is a form of support that would assist the Applicant to achieve her goals and aspirations as these are set out in her Statement of Goals and Aspirations (see paragraph 35 above). In this respect, the support would assist the Applicant to develop her social skills and become more actively involved in her community and develop relationships with family and friends, among other things. With respect to s 34(1)(b) I am also satisfied that this support would assist the Applicant to undertake activities that would facilitate her social and economic participation. It would facilitate the Applicant's social participation in the manner just stated. It would also facilitate her economic participation as a consumer of goods and services in the community.
35. With respect to paragraph 34(1)(e) this is not a form of support that one might reasonably expect family members or other informal supports to provide to the Applicant, other than on an infrequent incidental basis. In any event, the evidence is to the effect that the Applicant is disconnected from family and has few friends.
36. Again, I do not understand any of these findings to be controversial, so touch on them briefly.
37. I adopt for the purpose of interrogating this request the principles I have identified above in relation to the request for additional support for self-care activities. In short summary, assistance with social, community and civic participation must understood in the context of the Applicant's SoPS as a whole, which is an integrated package of supports that includes clinical supports directed at the development of behavioural strategies to enable the Applicant to address her substantial functional limitations for communication, social interaction and self-management, in addition to the instrumental assistance that is to be provided by disability support workers for her to undertake life activities. The Applicant's SoPS also includes $1,784.00 over the period of the plan for disability related transport costs associated with community activities.
38. Taken together with her existing funding for self-care support, the existing funding for social, community and civic participation support means that the Applicant has available to her 20 hours per week of disability support worker assistance which she can use flexibly (that is, more or less on any given day, or week). I consider this to be substantial support given the nature of the Applicant's impairments which do not sound in a high need for physical assistance with self-care or mobility.
39. The Applicant expressed her need for additional support for social, community and civic participation in similar terms to those in which she expressed her need for additional support for self-care. Essentially what she seeks to obtain by this additional support is a companion to accompany her to appointments, activities and events in the community and to provide her with opportunities for socialisation. I have said already that affective or emotional support may be an incident of disability support worker assistance, but its primary purpose is instrumental. It is to assist the Applicant to undertake the practical and tangible tasks associated with making and attending appointments outside her home with clinicians and identifying and arranging her attendance at community activities and events, and to support her socialisation. It is not to provide companionship or socialisation. To do so is likely to create or foster dependence on formal support, rather than build independence and foster the development of freely given relationships with others.
40. I have carefully considered the evidence before me, including the Applicant's oral evidence, and I am not satisfied that it establishes that 6 hours per week of instrumental assistance with the tasks and actions associated with social, community and civic participation is insufficient. Having regard to this I am not satisfied that 22 hours of additional support of this kind is reasonable and necessary. With respect to the s 34(1)(c) criterion, it would not represent value for money to approve more support than the Applicant needs. Having regard to Rule 3.1(f) I am not satisfied that it would increase the Applicant's independence. It is more likely to create and foster dependence. In this respect, I am not satisfied with respect to s 34(1)(d) criterion that additional support of this kind would be beneficial for the Applicant.
41. For the foregoing reasons, I do not approve the Applicant's request for an additional 22 hours of support with social, community and civic participation.
42. I now turn to the Applicant's requests for funding for physiotherapy and Medx exercise physiology support. It is convenient to consider these requests together because their consideration turns on similar principles.
43. The CEO's primary challenge in relation to these requests is founded on paragraph 34(1)(aa). It is said that these supports are not necessary to address the needs of the Applicant as these arise from an impairment in relation to which she meets the disability requirements. The impairments in relation to which the Applicant meets the disability requirement are those to which her psychosocial disability is attributable.
44. It is the Applicant's case that she does meet the s 24(1) disability requirements in relation to her pain, neurological and physical impairments. But for the reasons I have explained above that is not the case.
45. However, that is not the end of the matter because of the operation of Note (b) to s 34(1). The effect of that Note is that I can consider the impact of the Applicant's pain, neurological and physical impairments on the impairments to which her psychosocial disability is attributable in determining what her disability support needs arising from those latter impairments are.
46. I am satisfied on the evidence before me that pain that is derivative of the Applicant's neurological and physical impairments aggravate the impairments to which her psychosocial disability is attributable. In particular, it aggravates her impairments related to emotional and behavioural regulation and motivation. That is the evidence of the Applicant's General Practitioner, found in his letter of 23 March 2023, it is the evidence of the Applicant's Physiologist, Mr Newton, found in his letter dated 16 March 2023, which was confirmed in his oral evidence, and it is the Applicant's own evidence given orally.
47. The CEO, in counsel's submissions on her behalf, challenges the adequacy of the evidence of this nexus and impact. It is submitted that it would only be the evidence of a psychiatrist or clinical psychologist to this effect that would be sufficient to persuade the Tribunal of the nexus and impact. I respectfully disagree. I have the evidence of a General Practitioner, Physiologist, and the Applicant herself that establishes what I consider to be in any event a commonsense proposition: that persistent serious pain has an aggravating affect on the Applicant's mental state. The CEO's independent expert also appears to have accepted that common sense proposition as a foundation for his recommendation for the approval of these supports.[56]
48. For the foregoing reasons I can be satisfied with respect to the paragraph 34(1)(aa) criterion, by operation of Note (b) to s 34(1), that physiotherapy and exercise physiology are supports that would address the Applicant's needs arising from impairments to which her psychosocial disability is attributable because they are directed towards the control of an aggravating factor for those impairments, being pain.
49. With respect to the s 34(1)(a) criterion I am satisfied that these supports would assist the Applicant to pursue the goals and aspirations set out in her Statement of Goals and Aspirations. In this respect they would assist the Applicant to better manage her health conditions and reduce the impacts her chronic health conditions (which in context must be taken to be a reference to her pain, neurological and physical impairments) on her mental health and functional capacity, among other things.
50. With respect to the s 34(1)(b) criterion I am satisfied that this support will assist the Applicant to undertake activities that will facilitate her social and economic participation. In this respect better control of an aggravating factor of the Applicant's emotional and behavioural dysregulation will assist in maintaining her tenancy and increase her potential for adaptive interactions with others in the community, including as a consumer of goods and services.
51. With respect s 34(1)(c) and Rule 3.1, I am satisfied on the evidence before me that the Applicant will receive substantial benefit from these requested supports in terms of the control of pain and the alleviation of the impairments to which her psychosocial disability is attributable. That was the Applicant's own evidence, which on this point must be given weight, given the policy emphasis the NDIS Act places on participant choice and control in the selection of their supports.[57] However, it is also supported by the evidence of Dr Dawson, General Practitioner, and Mr Newtown, Physiologist, in the evidence I have referred to above. I note that it is also supported by the orthopaedic surgeon the Applicant consulted on 14 August 2014. The evidence does not establish any suitable cheaper alternative supports that would have this beneficial effect. I note that the independent expert did not identify any such alternatives.
52. With respect to paragraph 34(1)(d), and Rules 3.2 and 3.3, in so far as these supports, per se, are concerned, they are deemed NDIS Supports by operation of s 10 of the NDIS Act and the NDIS Supports Transitional Rules. They may therefore be taken to satisfy the requirements of Rules 3.2 and 3.3 and the current good practice requirement.
53. The remaining work for paragraph 34(1)(d) to do is to require the decision maker to determine if these supports will be effective and beneficial for the Applicant. I am satisfied that this is the case based on the Applicant's own evidence and that of her General Practitioner and Physiologist. The Applicant has a history utilising both supports which she and those health practitioners state emphatically has been effective and beneficial in controlling her pain and its impact on her impairments to which her psychosocial disability is attributable.
54. I note that the CEO's challenge to the approval of these supports is not founded upon an objection to their proposed frequency. The independent expert does not opine for any difference frequency to that requested by the Applicant.
55. With respect to paragraph 34(1)(e) physiotherapy and exercise physiology are not supports that it would be reasonable to expect family members, informal networks or the community to provide to the Applicant. They are clinical supports which involve practitioners with specialised training. In any event, the Applicant is not connected with family and has few friends.
56. For the forgoing reasons, I am satisfied that the Applicant's request for physiotherapy support for 26 sessions which she can use flexibly for fortnightly or at other intervals, and for Medx exercise physiology support on a twice weekly basis are reasonable and necessary supports that should be approved for inclusion in her SoPS.
57. For completeness, I note that I have had regard to Rule 7 of the Miscellaneous Rules, and to the other matters in s 33(5) to which I have not explicitly referred in these reasons. I have nothing to add in relation to those matters.

(1) Pursuant to s 105(b) of the Administrative Review Tribunal Act 2024 (Cth) the decision of the CEO dated 18 November 2024, as varied by the decision of the CEO dated 30 January 2025, is further varied to approve funding for the following supports to be included in the Applicant's Statement of Participant Supports:

1. 26 sessions of treatment by a physiotherapist within the period of the Statement of Participant Supports but pro-rated from the date of this decision, and
2. 112 sessions of Medx exercise physiology within the period of the Statement of Participant Supports but pro-rated from the date of this decision.

(2) Pursuant to s 105(a) of the Administrative Review Tribunal Act 2024 (Cth) the decision of the CEO dated 18 November 2024, as varied by the decision of the CEO dated 30 January 2025, is otherwise affirmed.

(3) Pursuant to s 100(1)(a) of the Administrative Review Tribunal Act 2024(Cth) the application for review insofar as it concerns the decisions of the CEO dated 19 June 2023 and 10 May 2024 is dismissed on the ground it is now lacking in substance.

[1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the administrative Appeals Tribunal Act 1975 (Cth). The AAT was abolished and replaced by the 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] Nott and National Disability Insurance Agency (Practice and Procedure) [2025] ARTA 780.

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

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

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

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

[7] The Tribunal in TZQP and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 839 reached the same conclusion at [195] to [197].

[8] The "Note" does not form part of the Act. It is extrinsic material that may be considered in the interpretation of it: Acts Interpretation Act 1901 (Cth) ss 13 and 15AB(2)(a) respectively.

[9] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47]; SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20]

[10] NDIA operational policy: Applying to the NDIS.

[12] World Health Organisation (2011), International Classification of Functioning, Disability and Health, Geneva. I have explained the use of the use of the ICF as extrinsic material to which the Tribunal can have regard in identifying impairment with precision and in accordance with a common language and conceptual framework in DQKZ and National Disability Insurance Agency [2024] AATA 2276 at [144] - [149]. I adopt what I have said there for the purposes of these reasons; see also World Health Organisation (2002), Towards a Common Language for Disability Health and Functioning, ICF, Geneva.

[13] ICF b122 "General mental functions as they develop over the life span, required to understand and constructively integrate the mental functions that lead to the formation of the personal skills needed to establish reciprocal social interactions, in terms of both meaning and purpose."

[14] ICF b126 "General mental functions of constitutional disposition of the individual to react in a particular way to situations, including the set of mental characteristics that makes the in distinct from others."

[15] ICF1263 "Mental functions that produce a personal disposition that is even-tempered, calm and composed, as contrasted to being irritable, worried, erratic and moody."

[16] ICF b1264 "Mental functions that produce a personal disposition that is curious, imaginative, inquisitive and experience seeking, as contrasted to being stagnant, inattentive and emotionally inexpressive."

[17] ICF b1265 "Mental functions that produce a personal disposition that is cheerful, buoyant and hopeful as contrasted to being downhearted, gloomy and despairing."

[18] ICF b1266 "Mental functions that produce a personal disposition that is self-assured, bold and assertive, as contrasted to being timid, insecure and self-effacing."

[19] ICF b130 "General mental functions of physiological and psychological mechanisms that cause the individual to move towards satisfying specific needs and general goals in a persistent manner."

[20] ICF b1300 Mental functions that produce vigour and stamina."

[21] ICF b1301 "Mental functions that produce the incentive to act; the conscious or unconscious driving force for action."

[22] ICF b140 "Specific mental functions of focusing on an external stimulus or internal experience for the required period of time."

[23] ICF b1400 "Mental functions that produce concentration for the period of time required".

[24] ICF b144 "Specific mental functions of registering and storing information and retrieving it as needed."

[25] ICF b1440 "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".

[26] ICF b152 "Specific mental functions related to the feeling and affective components of the processes of the mind."

[27] ICF b1520 "Mental functions that produce congruence of feeling or affect with the situation, such as happiness at receiving good news."

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

[29] 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".

[30] ICF b160 "Specific mental functions related to the ideational component of the mind."

[31] ICF b1602 "Mental functions that provide volitional control of thinking and are recognised as such by the person."

[32] ICF b 164 "Specific mental functions especially dependent on the frontal lobes of the brain, including complex goal-directed behaviours such as decision-making, abstract thinking, planning and carrying out plans, mental flexibility, and deciding which behaviours are appropriate under what circumstances; often called executive functions."

[33] ICF b1641 "Mental functions of coordinating parts into a whole, of systematizing; the mental function involved in developing a method of proceeding or acting".

[34] ICF b1644 "Mental functions of awareness and understanding of oneself and one's behaviour."

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

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

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

[38] ICF s 1

[41] ICF s 7

[45] The internal review delegate did not accept that these conditions were permanent. However, as at the date of the hearing the CEO accepts that they are: CEO's Statement of Facts, Issues and Contentions, paragraph 50.

[46] Foster and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 718

[48] Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 60

[50] d110 to d199, however d172 to d199 (which includes problem solving and making decisions, are grouped within self-management for the purposes of s 24(1)(c) and paragraph 34(1)(aa).

[52] Note (b) does not form part of the Act. It is extrinsic material that may be considered in the interpretation of it: Acts Interpretation Act 1901 (Cth) ss 13 and 15AB(2)(a) respectively

[53] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [41]

[55] Robyn L Tate, Manual for the Care and Needs Scale (CANS), version 2, July 2017

[57] National Disability Insurance Agency v WRMF [20220] FCAFC 79 at [152]