1. The Applicant was born in Coffs Harbour and moved to Brisbane when she was 17 years old. She was diagnosed with CVS when she was an infant and with CPD when she was a teenager. She has suffered from anxiety since at least 2015.
2. In her evidence to the Tribunal, she said that, since moving to Brisbane to attend university, she has lived in several locations. She lived first in a unit with a friend, then in another unit with another friend, then with her then boyfriend in a house for two years and then in another house with him. Later she moved into a unit with a friend, during which time her mother, who was by then living close by, provided her with care in the unit. She said she no longer has contact with the friends with whom she shared a house, as the relationships broke down because they increasingly took on the role of carers for her. Presently she lives in a unit in a tower, with her brother living in a unit in the next tower. Her mother shares her time between the two units, providing care to her two children. However, mum's mostly with me, she said.[1]
3. The Applicant works one day a week in a costume shop. This arrangement has been in place, though sporadically, since 2014. Her role is mainly on the shop's computer, maintaining the website, and serving customers when the shop is busy. She volunteered at the Commonwealth Games in April 2018 on the Gold Coast, where she worked in a call centre. She resumed studying for the degree of Bachelor of Arts and Communications at the University of Queensland in the second semester of 2019. She completed one unit in that semester. The study involves face-to-face interactions on the campus, although the coronavirus pandemic has modified these requirements.
4. She said that her main hobby is cosplay, which is making up, buying and wearing costumes and role-playing in them. Her main character is Harley Quinn, though she plays other roles as well. She applies and wears make up in those roles. Her mother and another relative help her make her costumes. As part of cosplay she attends annual Supanova conventions in Brisbane and on the Gold Coast, always with the help of friends, though she doesn't take part in the cosplay competitions there. She said she generally arrives late and needs to rest during the day. In November 2016 she attended a Supanova convention where she had a different costume to wear for each of the three days of the event. She has attended conventions most years since 2006. She is also involved in LARPing - live action role-playing - which is similar to cosplay but involves a combat element. This takes place on a field in Brisbane, involving some 50 participants. She also plays video games most evenings, for a number of hours, where she interacts with other players.
5. Until 12 months ago the Applicant had a boyfriend. She has several female friends at present, whom she sees with varying frequency. She sees them once or twice a month. She also has some friends who are involved in cosplay/LARPing. She goes camping with friends, most recently for three days in October 2020, when they stayed in tents. She maintains social media accounts on Messenger, Instagram and Facebook. She takes part in group chats, though she said I lurk so I don't often actively start conversations. She attends social functions such as weddings and birthday parties. She sometimes engages in creative writing, though not so much in recent years.
6. After attending events or work she needs to rest. For example, if she goes to the doctor she will need to spend the rest of the day in bed, she said.
7. At one point she went bouldering/rock-climbing for three days with friends. On the third day she jumped/half-fell and broke her leg. She said that she was doing calisthenics with her boyfriend during her relationship with him, though less intensively than he was. At one point she was doing these exercises daily.
8. The Applicant has a driver's licence and access to a car, which she is able to drive although she does not like to drive alone. She once drove to Coffs Harbour by herself, though that was years ago. She went on a family holiday to Japan in 2015, when she visited Tokyo, Kyoto, Nagoya and Hiroshima. She went on an eight-week holiday with her family in the United States in 2017. On that trip she was in generally bad health - it was a stressful trip. She said she could not undertake those trips without the support of her family, her mother in particular who is a trained nurse and knows what to do in an emergency.
9. In a statement dated 12 July 2018 in support of the request for access to the Scheme, the Applicant's mother described the medical conditions her daughter lived with:

[The Applicant] has developed anxiety due to her multiple conditions and hospitalisations as well as the overwhelming sickness she has had to endure which has left her to weak and lethargic during her school life and late teens, into adulthood...

The result is;

• long-term psychological difficulties - severe psychological distress
• loss of confidence in hospitalisations and doctors in ED invoking extreme anxiety
• fear of admission
• feelings of helplessness and hopelessness ...
• depression...
• dependence on parental support in everyday life...
• social stigma friends disbelief of weakness and condition (although witness vomiting and ambulance call outs) teasing and abuse
• negativity
• self-doubt...

• cannot gain employment (one day a week only)
• cannot undertake university or other courses (always going to - never does)
• cannot put herself forward for job interviews
• cannot go out socially or even shopping without someone with her
• sleep pattern disrupted
• mood affectation
• lethargy
• constantly worried she will get sick and have to go to hospital
• cannot develop new close intimate relationships
• weakness and trauma recovery after each hospitalisation...

Recovery at home after admissions takes months, with weakness and psychological trauma debilitatingly stressful and requires 24 hours care for days. This impacts on her social life leaving her more stressed because she cannot participate in activities.

1. The statement went on to list the impacts on the Applicant's life from CPD:
   • Hospitalisation and rehydration in Emergency situations
   • Long term life changing effects e.g. anaesthetics life-threatening,
   • Relationships - unable to have children (not enough energy for two)
   • Because heart damaged fear of further damage (heart attack 11/4/2016)
   • Anxiety over condition
   • Cognition impaired during attacks
   • Immunocompromised and a fear of getting an infection or illness e.g. 'flue will deplete energy requiring frequent antibiotic treatments and even hospitalisation
   • Community contact minimal
2. In evidence before the Tribunal, the Applicant's mother said that her daughter's condition was episodic, but in between episodes she's incapacitated as well. The Applicant's mother gave up teaching so that her daughter could lead a life as normal as possible. She described how this had assisted her daughter:

When she's anxious, her body starts to break down... when her muscles start to break down she starts vomiting, so she has this cycle that never ends. I stay with her to prevent the cycle starting in the first place and we've, for a couple of years now, have managed to stop that.

1. In cross-examination the Applicant clarified that what had been stopped in the last couple of years was her cyclical vomiting, but not episodes of nausea. Before late 2018, the pattern of cyclical vomiting varied enormously; in some years she would be hospitalised only once, in others every 2-3 weeks. Inevitably, vomiting led to hospitalisation because my body's not capable of stopping on its own.

1. A letter dated 22 October 2018 by the Applicant's general practitioner, Dr Angela Sprott, was tendered. In it Dr Sprott says:

[The Applicant] is a 26 year old Aboriginal woman with multiple complex health and support needs...

She meets the disability requirements of the assessment criteria as set out in the guidelines for NDIA...

• Her disability is attributed to a physical impairment
• Her impairment is a permanent genetic condition
• Are functional capacity is substantially reduced in the areas of self-care and self-management
• She will require ongoing lifetime support under the NDIS scheme. [Her] impairment varies in intensity but remains permanent...

This impairment is the loss and reduction of physical function. During episodes she becomes bedridden and is unable to participate in physical activities. These episodes can last from days to weeks...

[The Applicant] lives with functional incapacity daily. She physically does not have the energy to move and live as people her own age do. [She] has arm and leg aches constantly which prevent activity. She relies on food for energy and supplements, as her body is unable to process fats into energy... She lives in a constant state of lethargy.

[The Applicant] is unable to hold a fulltime position due to her condition and would require an extremely understanding employer who was willing to let her rest when necessary and is understanding of her need to miss work days when a condition requires hospitalisation for treatment or has her too ill to leave her bed...

During episodes [she] has mobility impairments, she is unable to undertake ordinary activities of daily living and must remain in bed for days at a time and is incapacitated for weeks at a time depending on the severity of the episode. She remains at home because she does not have the energy required to walk or participate in activities. During severe episodes [she] is unable to organise her life, make plans or complete daily tasks and her anxiety spikes uncontrollably. [Her] life function capacity is well below that of her peers...

During episodes [the Applicant] requires assistance, physically, with guidance and supervision to perform everyday tasks, manage her own affairs, make decisions and give informed consent, because of her weakened state, pain, vomiting and anxiety...

She is unable to make plans to attend university or undertake courses because of her weakened state and the episodic and unpredictable nature of the condition. [The Applicant] will require lifetime support if she is to have success with education, employment, improve the economic and social participation and have any form of independent lifestyle and living arrangement.

1. Dr Robert Purssey, a consultant psychiatrist, conducted an assessment of the Applicant in February 2019 and wrote a report dated 21 February 2019. In it he said:

[The Applicant] has very significant impairments in multiple abilities of daily life as a direct and ongoing consequence of her psychiatric condition of anxiety disorder, general and social, chronic and severe - and these very significant impairments will quite definitely be permanent.

1. He went on to complete descriptions of how her psychiatric impairment impacted on the criteria referred to in section 24(1)(c). He then sent a letter that day to Dr Sprott, in which he said:

Thank you so much for kindly referring [the Applicant] who is a simply delightful 26-year-old disability support pensioner, also working six hours a week at a costume shop in the city for the last two years, and living in comfortable rental city apartment having been in Brisbane 9 years, in an adjacent tower block to that in which her brother and mother reside. [She] is in a supportive seven month relationship with Jon, 28, a software developer with QSuper...[She] exercises within limitations of her [CPD] deficiency, and associated cyclic vomiting syndrome, walking home from work and calisthenics exercises daily, also LARP'ing. She connected socially with friends San, Lily, Lorna, fortnightly, hanging out, shopping et cetera. Regular contact with her mother and Daniel nearby, also father and extended family in Coffs Harbour. Enjoys reading fantasy novels, little self-help, I have recommended some. Enjoys game of thrones, various quality TV streaming. Enjoys cosplay, and live-action role-play, her main character "harlequin", and a broad range of music. Thus many and broad life interests, physical and psychological health issues impeding...

[The Applicant] described significant stress-related anxiety with severe general tension, worry, moderate social sensitivity, outgoing variably and occasionally worried thereafter. Panicky with new people and hospital situations, I prescribed as required propranolol. Some traumatic recollections of hospital situations. Mood up and down, occasionally hopeless and helpless, no suicidality. Occasionally difficulty getting to sleep and walking with worries, appetite decreased, attention variable, energy decreased. No psychosis and no substance issues...

Some shyness since very young, and "not good enough" worries since uni.

1. Also before the Tribunal was a report of Mr Tomas Tapper, a registered psychologist, dated 16 December 2019. In that report he said:

She still presents with symptoms of heightened levels of anxiety and periods of low mood that are exacerbated by her ongoing health issues and concerns. These symptoms have been exacerbated by recent relationship struggles with her partner moving overseas and ongoing medico-legal issues relating to NDIS funding. While she has made improvements with her symptoms (for example completing a university subject this past semester), her anxiety still significantly impacts on her capacity to engage in new tasks, study, and longer working hours with the fear that her health will deteriorate. Her low mood appears to fluctuate relating to her health status...[The Applicant] has engaged well during these sessions with me, which was also reflected by [her] in session, stating she still finds the sessions to be helpful and increase understanding and awareness, and development of healthier coping strategies of her presenting issues. Within these sessions, I have provided brief psychoeducation about ACT processes (which is a modern form of Cognitive Behaviour Therapy, (CBT), to learn skills so that her current presenting issues will have less impact and influence on her life. Within the session, we have worked on mindfulness-based skills, cognitive defusion, increased perspective taking, goal setting, and building an awareness of her core values. We have also introduced exposure treatment to help change her relationship with her presenting issues. While [she] reports that she is generally improving with her sense of self, and feeling more open to experience, there is still areas to continue to improve on and to work toward her goals of re-engaging in university study, gaining employment in the field she is interested in, and building her confidence to engage in new experiences in life...

1. Dr Janelle Nisbet, an endocrinologist, wrote a report stated 7 February 2019, in which she said that the Applicant:

...experiences ongoing muscle pain and weakness on an almost daily basis. This has an effect on her ability to maintain normal working hours and find appropriate employment, and her ability [to] manage exertional activities including regular exercise.

1. In a letter to Dr Sprott dated 10 May 2017, Dr Nisbet said she had reviewed the Applicant, who is enjoying an active lifestyle and has recently been camping and attended the Supanova festival.

1. To become a participant in the NDIS, a person must satisfy a number of provisions in the Act. He or she must satisfy the age requirements in section 22 and the residency requirements in section 23. In addition, he or she must satisfy either the disability requirements in section 24 or the early intervention requirements in section 25.
2. Section 24 provides:

(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 to one or more impairments attributable to a psychiatric condition; 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, or psychosocial functioning in undertaking, one or more of the following activities:

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self-care;

(vi) self-management; and

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

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

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

1. Rules have been made under the Act to assist in its interpretation and application. Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules (the Rules) prescribes certain circumstances in which an impairment is deemed to result in substantially reduced functional capacity. It provides:

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, self-management (see paragraph 5.1(c)) - 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 participate 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. The NDIA has published Operational Guidelines (the Guidelines) to assist decision- makers with certain matters, including decisions about access. The Guidelines form part of the NDIA's policy framework and, to the extent they are consistent with the Act, should be applied by the Tribunal unless there is a good reason not to do so: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-421; Mulligan and National Disability Insurance Agency [2015] AATA 974 at [31].
2. The Guidelines provide further guidance in relation to determining when an impairment results in substantially reduced functional capacity. In that part dealing with access requests (at 8.3), the following provisions appear:

8.3 Substantially reduced functional capacity to undertake relevant activities

The NDIA must be satisfied that an impairment results in substantially reduced functional capacity of a prospective participant to undertake one or more relevant activities (section 24(1)(c)).

The NDIA is required to consider whether any permanent impairment, or permanent impairments when considered together, result in substantially reduced functional capacity to undertake one or more of the following activities:

• Communication: includes being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age;
• Social interaction: includes making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context;
• Learning: includes understanding and remembering information, learning new things, practicing and using new skills;
• Mobility: this means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs;
• Self-care: means activities related to personal case, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs; or
• Self-management: means the cognitive capacity to organise one's life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem solving and managing finances.

The NDIA does not need to be satisfied that a person's impairment is 'serious', or more serious than another person's. Rather, access to the NDIS is based on a functional, practical assessment of what a person can and cannot do (see Mulligan and NDIA [2015] FCA 44 at [56]) ...

It is sufficient for a prospective participant to have substantially reduced functional capacity in relation to one activity (see Mulligan and NDIA [2015] FCA 44 at 67 )...

The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:

By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.

In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.

Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.

When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age. For example, children under the age of 2 will not necessarily have a substantially reduced functional capacity because they need assistance to provide for self-care needs.

A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.

When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.

1. The Guidelines provide further guidance with respect to each type of impairment referred to in section 24(1)(c) of the Act.

1. There is no dispute that the Applicant meets the age and residency requirements set out in sections 22 and 23, and I so find. The Applicant's mother also clarified at the outset of the hearing that access to the Scheme via the early intervention requirements in section 25 was not pressed. She also indicated that the Applicant did not press the claim that she had substantially reduced functional capacity to undertake learning under section 24(1)(c).
2. Accordingly, the issues in dispute at the hearing were:

(a) whether any of the Applicant's impairments result in a substantially reduced functional capacity to undertake one or more of the following activities set out in section 24(1)(c): communication, social interaction, mobility, self-care or self-management; and

(b) whether she is likely to require support under the NDIS for her lifetime (section 24(1)(e)).

1. The Applicant's mother mounted a series of criticisms of the way in which the NDIA had considered her daughter's request for access to the Scheme. She said that, given the evidence which had been supplied to the NDIA, her daughter's access to the Scheme should never have been in question. However, the Tribunal does not have a general supervisory jurisdiction over the departments and agencies whose decisions are subject to merits review. What is before the Tribunal here is the reviewable decision of 28 August 2019. It must decide if this is the correct or preferable decision or if it should be set aside and a different decision put in its place. The way in which the reviewable decision was made is, generally speaking, irrelevant.

Section 24(1)(c) - impairments result in substantially reduced functional capacity

1. The critical question is whether the Applicant's impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the activities listed in section 24(1)(c), other than learning. In analysing that question several important principles can be distilled from earlier decisions:

(a) What is being assessed is what the Applicant can and cannot do: Mulligan v NDIA [2015] FCA 544 at [56];

(b) It is sufficient if she has substantially reduced functional capacity in relation to just one activity: Mulligan at [67];

(c) The relevant test is not how much better her life would be if she had access to NDIS supports: Madelaine v NDIA AATA 4025 at [72]-[73]; and

(d) Functional capacity should not be characterised by what she is only able to do on a "bad day": Madelaine at [76].

1. The Applicant contended that her impairments resulted in substantially reduced functional capacity to undertake all of the activities in section 24(1)(c) other than learning. Conversely, the NDIA contended that the evidence showed that her impairments do not result in a substantially reduced functional capacity to undertake any of the activities mentioned in section 24(1)(c).
2. The evidence suggests that the conditions with which the Applicant lives fluctuate in intensity from day to day, week to week - indeed, even from year to year. It is clear that, at times, the conditions lead to a very high level of functional incapacity, while at other times to a much lower level of functional incapacity. Accordingly, an important threshold question for the Tribunal to determine is the frequency with which episodes of incapacity occur.
3. The significance of dealing with this question is underscored by the Guidelines at 8.3 where it states:

When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.

1. Before applying this guideline to the Applicant's situation, it is important, as was made clear by Drake, for the Tribunal to satisfy itself that a subordinate instrument is consistent with the legislative scheme of the Act itself. The Tribunal has on several occasions disregarded such instruments where it considered that they were inconsistent: see for example Ewin and National Disability Insurance Agency [2018] AATA 4726 at [80]- [82]; Madelaine at [118]-[131]; TYKL and National Disability Insurance Agency [2021] AATA 135 at [103]- [108]. In the case of Guideline 8.3, consistency with the Act does not appear to be an issue. A condition which affects a person only intermittently cannot be said to substantially reduce their capacity to undertake that activity overall. What the Act seeks to do is consider a person's life circumstances holistically, rather than focusing on acute but atypical instances of impairment and incapacity.
2. But are the present Applicant's periods of acute incapacity typical of her general life, or are they exceptional? On this question there is some ambiguity in the evidence.
3. The submissions of her mother, which I will treat as evidence, were that her daughter's life was characterised by severe incapacity. She acknowledged that her daughter's conditions were episodic, but said in between episodes she's incapacitated as well. She said:

She also requires assistance with household tasks, including shopping, cooking and cleaning and personal care, all of which I give her. She needs a support person to help take her to appointments...and check-ups. I do all of that. Also to ensure she can deal with uni courses and make it to class and negotiate for extensions. I do all of that. Deal with any situation that requires negotiation or phone calls - I do all that.

1. In closing submissions her mother went on to say, addressing Rule 5.8:

What similar-aged person has their mother living with them and doing daily tasks and helping her with her ADLs when she can't get out of bed? What other mother does that for a 28-year-old?... She doesn't go anywhere in her car unless there is someone with her. She hasn't got the energy to drive - someone drives her. She doesn't do anything without a companion... she can do things...but the struggle, and the effort to function, is the problem.

28-year-olds don't spend five days a week in bed.

1. However, this characterisation of her daughter's lifestyle does not sit comfortably with other evidence before the Tribunal. One might compare this quite bleak depiction from her mother with the assessment of Dr Purssey in February 2019 of the simply delightful young woman he had recently reviewed:

[She] exercises within limitations of her [CPD] deficiency, and associated cyclic vomiting syndrome, walking home from work and calisthenics exercises daily, also LARP'ing. She connected socially with friends San, Lily, Lorna, fortnightly, hanging out, shopping et cetera. Regular contact with her mother and Daniel nearby, also father and extended family in Coffs Harbour. Enjoys reading fantasy novels, little self-help, I have recommended some. Enjoys game of thrones, various quality TV streaming. Enjoys cosplay, and live-action role-play, her main character "harlequin", and a broad range of music. Thus many and broad life interests, physical and psychological health issues impeding...

1. The suggestion from her mother that the Applicant spends most of a typical week bedridden seems inconsistent with her own evidence that she is able (with some exceptions) to go to work every Friday, to go to the University campus to participate in classes, to see her friends roughly fortnightly for shopping or outings, to play video games for several hours most evenings and to undertake outdoor activities such as camping and bouldering. I accept that much of what she is able to achieve is a struggle, and that such activities come at the cost of later fatigue and lethargy, but it does seem that she is able to do a substantial number of the things which a person of her age would typically do. Moreover, the level of involvement in activities outside the home suggests that the periods of activity exceed in length the periods in which her conditions render her incapacitated. If, as Guideline 8.3 instructs, I focus on her ability to function between acute episodes, the result is that it is appropriate to find that she is able to achieve, typically, a relatively high degree of functionality.
2. The other relevant consideration in this context is that the Applicant has been successful over the last two years in avoiding episodes of cyclical vomiting. Although not the only condition which incapacitates her, in the past it had inevitably resulted in hospitalisation, and the fact that it has been kept at bay for the last two years appears to have improved her quality of life and made it easier to undertake daily activities. It was not always clear whether the evidence, especially from her mother, of severe incapacity related to the period before this breakthrough or more generally. In any case, I am satisfied that the frequency and severity of incapacitating episodes she experiences have lessened since the end of 2018, particularly as measured by her avoidance of hospitalisation in this time.
3. It was submitted on behalf of the Applicant that regard should be had to the provisions of section 24(2), which provides that an impairment that varies in intensity may be permanent, and the person is likely to require support under the Scheme for their lifetime, despite the variation. It was submitted that the effect of these words was that purely episodic substantial reductions in functional capacity should nonetheless be considered to qualify a person for entry to the scheme. For example, if the Applicant was unable to communicate only during episodes of severe anxiety, she would still have a substantially reduced functional capacity to communicate under paragraph (c) because this was simply an example of the impairment varying in intensity in the way described in subsection (2).
4. This submission must be rejected. Subsection (2) directs itself to when an impairment may be considered to be permanent (i.e. a reference to subsection (1)(b)) and to whether a person is likely to require support from the Scheme for their lifetime (i.e. a reference to subsection (1)(e)). There is nothing to suggest that subsection (2) addresses itself in any way to subsection (1)(c). Rather, the correct approach is suggested by the methodology contained in Guideline 8.3.
5. Before considering her functional capacity to undertake individual activities, it is appropriate to comment on the medical evidence with which the Tribunal was dealing. The NDIA submitted that the doctors' reports should be approached with caution, because some of the opinions expressed were not consistent with contemporaneous clinical and other records. As the treating GP of long-standing, the independence of Dr Sprott, in particular, in assessing the access criteria cannot be assumed. Dr Purssey, on the other hand, saw the Applicant on only one occasion, more than two years ago. On this basis his opinion, too, should be approached with caution. The NDIA said the doctors were not available for cross examination, despite it having indicated before the commencement of the hearing that it wished them to give evidence, and accordingly their opinions should be given less weight.
6. The Applicant contended that the Agency should have accorded considerable weight to the opinion of the doctors, and that it was inappropriate for it to have refused her access to the Scheme in defiance of their view that she met the eligibility requirements. She argued that the Agency should have called the doctors itself had it wished to cross examine them.
7. The Tribunal can appreciate the Applicant's frustration that the opinions of Dr Sprott and Dr Purssey have been gainsaid by the NDIA. However, evidence which is in dispute in a proceeding should be tested, no matter what its source. The NDIA pointed, with some justification, to apparent inconsistencies between the doctors' opinions and other material which had been tendered. For example, Dr Sprott considered that the Applicant had a reduced functional capacity for self care, but records from the Mater Hospital assessed her to be independent in all aspects of self-care. Such observations do not imply deliberate falsehood, but the Tribunal observes that doctors - treating doctors in particular - sometimes slip into the role of advocates for their patients. In these circumstances, a party seeking to rely on expert opinion should make that opinion available for testing through cross-examination. This did not occur here, and the Tribunal must weigh the doctors' opinions accordingly.
8. The Tribunal will now consider under the heading of each of the activities in sectoin 24(1)(c) both the evidence relating to the Applicant's capacity to undertake the activity and the contentions of the parties in relation thereto. It will then make a finding in relation to each activity. For this purpose it will not isolate the effect of any one condition, but rather will consider their cumulative or combined effect on her functional capacity.

1. The Guidelines provide at 8.3 that communication includes being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech of context appropriate to age. The effect of this guideline is that if the Applicant is able to do all these things then it is unlikely that she will be considered to have a substantially reduced functional capacity in relation to the activity of communication.
2. In this context rule 5.8(b) must also be applied, so that if she usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people...to perform tasks or actions required to undertake...the activity then she is considered to have a substantially reduced functional capacity to undertake that activity.
3. Her mother's evidence was that, during episodes of severe anxiety, she is unable to speak. This is consistent with that part of the Access Request Form where Dr Sprott indicated that she required assistance from other people, specifically saying During episodes of anxiety has difficulty expressing herself verbally.
4. The NDIA argued that, while the Applicant may experience difficulties in communicating at some points, particularly when episodes of her conditions are acute, there is insufficient evidence for the Tribunal to be satisfied that any impairment suffered by her results in substantially reduced functional capacity to communicate as she does not usually require assistance to communicate. It pointed to the evidence that she had worked at a call centre during the Commonwealth Games, she regularly discusses cosplay costume designs with her mother and another relative, and she freely understood and responded to questions during the hearing.
5. The consultation notes of Dr Purssey and Mr Tapper indicate that the Applicant is able to report and discuss her affairs, issues and feelings with those practitioners in a way that demonstrates mutual understanding. The summonsed documents from the Mater Health Service demonstrate that even when she has been admitted to hospital for treatment, she is able to communicate effectively with hospital staff.
6. Combined, this evidence leads me to affirm the view that the Applicant is able to communicate in most contexts. The evidence that her mother helps her make appointments, seeks extensions of time from the university and deals with any situation that requires negotiation or phone calls does not establish that she usually requires the assistance of another person to communicate. This evidence seemed to refer, with respect, to the Applicant's confidence in communicating, not her capacity to communicate. The latter is about understanding others and expressing needs and wants in oral or written form. She clearly has that capacity.
7. The evidence comfortably establishes, in the Tribunal's assessment, that the Applicant is able to communicate effectively between acute episodes of her conditions. Her mother conceded as much when she said, in answer to a question, In between episodes with communication she's okay. Since these episodes occur only a minority of the time, I find that she does not experience a substantially reduced functional capacity to communicate pursuant to section 24(1)(c)(i).

1. The Guidelines provide that social interaction includes making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context.
2. In completing the Access Request Form, Dr Sprott indicated that the Applicant needs assistance from other people to undertake social interaction, for these reasons:

Anxiety impairs ability to make & maintain social connections. Requires daily support from another person for activities of daily living including getting to & from places, conversations with strangers, telephone calls & unfamiliar situations.

1. The Applicant's mother said that she has anxiety all the time, and this impairs her social interaction. She said her daughter:

...can't cope with feelings, the feelings of inadequacy, of anticipated rejection, even with friends. There is an intense feeling of panic and fear.

1. She referred to Dr Purssey's opinion in the Evidence of Psychosocial Disability Form he completed on 21 February 2019 that the effect of her anxiety condition on her capacity to undertake social interaction was Significant.
2. She also made the point that the Agency accepted the opinions of Dr Sprott and Dr Purssey with respect to the permanence of her daughter's conditions; on that basis they should, logically, also accept the same doctors' opinions on whether she had a substantially reduced functional capacity to undertake the relevant activities.
3. Conversely, the Agency pointed to the evidence that the Applicant has a circle of friends whom she sees more or less regularly, that she attends communal and social events such as Supanova conventions, weddings and birthday celebrations, and maintained a romantic relationship over the course of a number of months in 2018 and 2019. It referred to the letter of 14 November 2016 of Dr Nisbet which noted that the Applicant is going out regularly with friends and will be attending the Supanova event this weekend where she has three different costumes organised. Similarly, her report dated 10 May 2017 noted that the Applicant is enjoying an active lifestyle and has recently been camping and attending the Supanova festival.
4. In a patient questionnaire completed by Dr Purssey it was also noted that her friends included Sam, Lily and Lorna and that they saw each other roughly each fortnight when they would hang out, go shopping. She is involved in cosplay and LARPing and has friends in connection with those activities. She had travelled to a wedding and a 21st birthday party in Coffs Harbour.
5. The Agency contended that these contemporaneous documents produced under summons are incongruous with many of the opinions expressed by the Applicant's mother in her submissions made and with some of the opinions of her treating practitioners in formal reports. The doctors' assessments should therefore be treated with caution.
6. Given that social interaction is, by its nature, often intermittent, it is unhelpful to consider how often episodes of acute incapacity prevent her from undertaking such interaction. Rather, the pertinent question is whether she is able to make and keep friends, interact with the community and cope with feelings and emotions while doing so_._ It appears that the totality of the evidence does suggest a general capacity to maintain friends and to interact with the community. While she no longer remains in contact with those friends with whom she shared accommodation during her early years in Brisbane - because her needs turned those friends into de facto carers - the same phenomenon does not appear to have occurred with her current circle of friends. The evidence tends to the conclusion that her conditions sometimes require her to absent herself from real-time or online engagement with her friends, but it does not suggest that she is unable to maintain those friendships on that account.
7. Her mother submitted that the relevant criterion in Guideline 8.3 in her daughter's case was coping with feelings and emotions. This was reflected in the view of Dr Sprott in the Access Request Form that anxiety impairs her ability to make & maintain social connections. Her mother referred, in her supporting documentation for entry to the scheme in 2018, to social stigma friends disbelief of weakness and condition [sic]. No flesh, however, was placed on the bones of these somewhat vague assertions. Problems in her relationships with friends were alluded to rather than set out explicitly. Her mother referred to teasing and abuse in her supporting documentation of 2018, but this reference stands in contrast to the evidence at the hearing that her daughter now maintains a reasonably stable circle of female friends, notwithstanding that a sexual relationship she once enjoyed had broken down.
8. I take it (though this was never explicitly put to the Tribunal) that the Applicant has friendships but nonetheless experiences doubts and anxieties about their quality and capacity to endure. She and her mother alluded vaguely to struggles she had in maintaining her relationships. Her mother said that doctors had encouraged her daughter to socialise as much as she can because the consequences of not doing so could be life-threatening. As I understand her contention, it would be incongruous if, having pushed through the barriers to do so, her efforts were to count against her attempt to enter the NDIS because they supposedly establish that she does not have a substantially reduced functional capacity to socialise.
9. My response to this is to return to the words of Mortimer J in Mulligan at [56]: the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Quite evidently, the Applicant can make and maintain friendships and can cope with emotions in that context. Doing so may represent a personal struggle, and may be accompanied by anxiety or self-doubt, but this does not detract from the reality that she is able to reach that goal.
10. It is not difficult to understand why the Applicant's mother would query why the Agency would accept the view of the medical experts as to the permanence of her daughter's conditions but reject the views of the same experts with respect to the functional incapacity those conditions give rise to. The answer to this concern is that each party in any litigation must determine for itself which issues it seeks to fight on and which it decides to concede. Such tactical decisions are matters for the parties. It may be that the Agency does not consider the views of the medical experts with respect to the permanency of the conditions to be reliable, but feels it is better able to base its case on other grounds. The Applicant herself has decided to concede some arguments to the Agency, including the concession that she does not experience a substantially reduced functional capacity with respect to learning.
11. The Tribunal finds that the Applicant does not encounter a substantially reduced functional capacity to undertake social interaction pursuant to section 24(1)(c)(ii).

1. The Guidelines provide at 8.3 that mobility means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs.
2. The Applicant's mother did not base her argument on the first part of this definition, but submitted that her daughter had a substantially impaired functional capacity to move about in the community, which qualified her for entry to the scheme under this criterion. She relied on Dr Sprott's assessment that during CPD episodes the Applicant becomes bedridden and is unable to participate in physical activities, and that she lives in a constant state of lethargy. She also pointed to the answers provided by Dr Sprott on the Access Request Form dated 26 February 2019, where Dr Sprott said, in relation to mobility, When severely anxious [the Applicant] requires assistance of another person. Her opinion on this should have been given considerable weight by the Agency, said the Applicant's mother, in accordance with 10.1 of the Guidelines.
3. With reference to Guideline 8.3, the Tribunal stated in Madelaine at [104]-[105]:

104. Once again, the threshold requirements to achieve functional capacity in relation to this activity are relatively modest. A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking; a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as moveable, not fixed, free to move_._

105. The use of the phrase move around...to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park - the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.

1. The NDIA drew attention to the following evidence that the Applicant enjoys a high degree of mobility: two overseas trips since 2015, outings to meet friends once or twice a month, attendance at events like Supanova, weddings and birthday celebrations and engaging in bouldering/rock-climbing. It pointed to the Psychosocial Disability form completed by Dr Purssey where he stated that impairment with respect to mobility was not significant. Various nursing notes from her hospital admissions refer to her mobilising effectively and independently. She also clearly mobilises when attending events and going shopping with friends, and she walks to and from work. She has a driver's licence and can drive a car. Having regard to that evidence, it said, the Tribunal should not be satisfied that her impairments result in substantially reduced mobility.
2. The Tribunal considers that this contention should be accepted. Having put aside the implication of her mother that she typically spends five days a week in bed, I find that most of the time she is able to move around in the community. I accept that she may often be tired, and may often spend extended periods in bed to recover from exertions, including those relating to going out, but I consider that she is generally (that is, more often than not) able to move about in the community and perform tasks requiring the use of her limbs. Dr Sprott said that When severely anxious [the Applicant] requires assistance of another person to mobilise, but this should be contrasted with Dr Purssey's opinion that impairment with respect to her mobility was not significant. Even if Dr Sprott's view is preferred, it is clear that she was referring to incapacity during acute episodes; if one considers instead, as required by the Guidelines, her capacity between acute episodes the conclusion can comfortably be reached that the Applicant enjoys reasonable levels of mobility.
3. I find that she does not experience significantly reduced functional capacity to mobilise.

1. The Guidelines provide at 8.3 that self-care means activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs.
2. The Applicant's mother said it was the last of these criteria - caring for own health care needs - that is relevant to her daughter's situation. Dr Sprott's assessment on this criterion was that she requires encouragement to eat & drink as this is crucial to management of [CPD]. Her daughter's need to be prompted or encouraged to undertake acts of self-care, such as eating, brought her, she said, within the terms of Rule 5.8, which says that a person has substantially reduced functional capacity to undertake an activity if he or she usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity.
3. This submission appears to relate to the comments made by her mother, to the following effect:

What similar-aged person has their mother living with them and doing daily tasks and helping her with her ADLs when she can't get out of bed? What other mother does that for a 28-year-old?

1. If a person is capable of caring for their own health needs only through the usual intervention of another person, it could be said that the eligibility threshold set in section 24(1)(c)(v) is satisfied. That is the tenor of the submission made by the Applicant's mother. However, the Tribunal hesitates to accept this contention; the other evidence before it causes it to suspect an element of exaggeration in the claim. As with much of the other evidence provided at the hearing, the assertion is vague in nature and unspecific as to frequency; how often does her mother need to intervene to ensure her daughter eats and drinks? What kind of health care needs does her mother need to remind her to attend to?
2. The claim was not advanced by the Applicant but rather by her mother towards the close of proceedings, after her daughter had given her evidence. At this point it was, of course, too late for the evidence to be subject to cross-examination. Additionally, the claim does not sit comfortably with other evidence. Although the Applicant said that her mother lives with her most of the time, her mother sometimes lives with her brother nearby. On those occasions, the Applicant is effectively living alone. Presumably she is able to eat, drink and take medications on her own initiative in those circumstances; if, alternatively her mother prompts her remotely to do so (say, by text messages or phone calls) this was not explained in the evidence. On those occasions when she was away from home - for example, when she went camping or bouldering for days at a time - she presumably shouldered a degree of responsibility for these acts of self-care.
3. This reading of the evidence accords with a Mater Hospital Nursing Discharge Summary dated 27 February 2016, where the Applicant was noted to be independent in all aspects of self-care including bathing, dressing, eating/drinking, and using the toilet. On each day of her subsequent hospital admission between 9 and 24 April 2016, the Applicant was noted to be independent in mobility/ADL's [activities of daily living]. Dr Nisbet's report of 10 May 2017 noted that she was enjoying an active lifestyle; one would assume that she would need to make regular decisions to eat while out and about, given the evidence that she needs to eat regularly because her body has difficulty in processing fats.
4. The Abbreviated Life Skills Profile completed by Dr Purssey on 21 February 2019 refers to the Applicant being reliable with taking her medication without reminding and being willingly to take her psychiatric medication when prescribed, though it also notes that she has a Moderate problem maintaining an adequate diet. However, in the Evidence of Psychosocial Disability Form he completed on 21 February 2019 he noted, in respect of self-care:

Sometimes, at those times VERY significant impairments in feeding self, and more

These very significant impairments often occur up to a couple of times weekly, and for a protracted period at those times.

The reference to up to a couple of times weekly conveys the implication that most of the time she is adequately able to manage issues associated with feeding.

1. Even if the view could be taken that there are some deficiencies in her caring for her own health needs, it should be remembered that the test is whether she has a substantially reduced functional capacity to self-care. Against these deficiencies should be set the fact that she is apparently able to care for her own hygiene and grooming, including showering, bathing, dressing and toileting. Shortcomings with respect to eating do not, of themselves, demonstrate that she is substantially unable to care for herself overall.
2. At best, the evidence here is ambivalent. An applicant for entry to the Scheme should be able to demonstrate that she meets the statutory test. As the Federal Court in Beezley v Repatriation Commission [2015] FCAFC 165 at [68] characterised this exercise:

...as a practical matter, it is not incorrect to say that a person "must satisfy" the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest...

Thus, if the evidence in relation to a statutory test is in a state of balance, favouring and disfavouring an applicant's contentions in equal measure, one would generally expect such an application to fail. In this case, the evidence on the Applicant's functional capacity to care for herself is inconclusive.

1. Accordingly, the Tribunal is not satisfied that the Applicant's impairments result in a substantially reduced capacity for self-care, pursuant to section 24(1)(c)(v).

1. The Guidelines provide at 8.3 that self-management means the cognitive capacity to organise one's life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem solving and managing finances.
2. The Applicant's mother said that the relevant areas of deficiency for her daughter were completing daily tasks, making decisions, problem solving and managing finances. She referred to Dr Sprott's opinion in the Access Request Form that the Applicant Requires support with all decision-making & prompting to attend to bill paying & deadlines.
3. On the other hand, the NDIA invited the Tribunal to consider that the Applicant:

(b) is employed at a costume shops and works at least 1 day each week and has done so for at least a year;

(c) takes instruction at work and operates autonomously in dealing with customers;

(d) is studying at university and completing courses;

(g) attends events like Supanova, weddings and birthday celebrations; and,

(h) maintained a romantic relationship over the course of a number of months in 2018 and 2019.

1. Volunteering, studying at university, undertaking paid employment and entering into romantic relationships are all significant life decisions she has made for herself, it said. In addition, although her mother lives with her part of the time, at several points in the last 5 years she has lived alone. She left home in Coffs Harbour at age 17 to move independently to live in Brisbane to attend university.
2. The Agency submitted that almost all of the evidence relevant to each other activity under section 24(1)(c) also displays the application of self-management. Being employed, even if her mother perceives her to be under-employed, engaging in volunteer work and studying at university are three factors that heavily weigh in favour of a finding that her impairments do not result in substantially reduced self-management capacity.
3. The Tribunal considers that, overall, the evidence is consistent with the Applicant being a relatively high functioning individual except on those occasions when she is acutely affected by one of her medical conditions. In the context of employment or university study she is obviously required to make decisions about how she conducts herself. Similar autonomous decision-making must occur when she goes away from home without her mother.
4. There was some intimation from her mother that, when her daughter goes out, she requires the assistance of her friends to care for her and to make decisions on her behalf. Her mother said She doesn't do anything without a companion. I have difficulty in accepting this evidence. There was nothing except the claim of her mother to characterise the relationship with her friends as one of dependency. Even if that is their role, her friends are not available to assist her when she goes to work or to university, yet she evidently manages these aspects of her life satisfactorily.
5. The evidence before the Tribunal suggests that, in several key dimensions of her life, the Applicant is capable of completing daily tasks, making decisions, problem solving. The extent or quality of any deficiencies, if any, in those areas was not squarely placed before the Tribunal in the course of the hearing. Accordingly, it is not persuaded that she has a substantially reduced functional capacity for self-management.

Section 24(1)(e) - likely to require support under NDIS for person's lifetime

1. To succeed in becoming a participant in the Scheme, an applicant must satisfy each of the paragraphs in section 24(1). As the Tribunal has determined that here the Applicant has not satisfied paragraph (c) of the subsection, it is unnecessary to determine whether she satisfies paragraph (e).

1. The Tribunal notes that the Applicant exhibited a relatively high degree of functionality compared with other potential participants who have applied for merits review. It was satisfied that, most of the time in her day-to-day life, she was able to hold down employment, study at university, engage in social activities with friends, move about in the community, drive a car, take overseas holidays, enter into romantic relationships and engage in outdoor activities. It could be noted that she is less able to do those things than a person who is not afflicted with her quite severe medical conditions, but it would also appear to be true that she is much more capable than a typical participant in the NDIS is.
2. Eligibility for entry to the Scheme, however, is not determined by making comparisons with other people and their level of disability or impairment. It is determined by applying, inter alia, the tests in section 24 to an individual's life circumstances. In this case, sadly, her level of impairment does not rise to reach the thresholds provided for in that section.
3. Accordingly, the reviewable decision of the Agency dated 28 August 2019, made under section 20 of the Act, to the effect that the Applicant does not meet the access criteria to be a participant in the Scheme, is affirmed.

1. I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries, AO

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[1] In this decision italics generally connote a direct quotation.