Decision: The Tribunal sets aside the decision under review and in substitution decides that the Applicant meets the access requirements in section 21 of the National Disability Insurance Act 2013 (Cth).

NATIONAL DISABILITY INSURANCE SCHEME - participant's access to the National Disability Insurance Scheme revoked - access criteria - disability requirements - psychosocial disability - National Disability Insurance Scheme (Becoming a Participant) Rules 2026 - permanence of impairments - availability of treatment - substantially reduced functional capacity - lifetime NDIS support - early intervention requirements - decision under review set aside

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

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

National Disability Insurance Scheme Act 2013 (Cth)

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

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

National Disability Insurance Scheme (Getting the NDIS back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth)

Beezley v Repatriation Commission [2015] FCAFC 165

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

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

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

G v Minister for Home Affairs [2019] FCAFC 79

Ghezzaoui and National Disability Insurance Agency [2023] AATA 2835

Holmes and National Disability Insurance Agency [2017] AATA 2750

Kelly v National Disability Insurance Scheme [2024] FCA 1462

Kilgallin and the National Disability Insurance Agency [2017] AATA 186

Madelaine and National Disability Insurance Agency [2020] AATA 4025

Mulligan v National Disability Insurance Agency [2015] FCA 544

MRLK and National Disability Insurance Agency [2021] AATA 3896

MZHQ and National Disability Insurance Agency [2019] AATA 810

National Disability Insurance Agency v Davis [2022] FCA 1002

National Disability Insurance Agency v Foster (2023) FCAFC 11

National Disability Insurance Agency v Lampard [2025] FCAFC 139

Nika and National Disability Insurance Agency [2021] AATA 2127

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Rooney and National Disability Insurance Agency [2021] AATA 3523

RZLV and National Disability Insurance Agency [2024] ARTA 294

Shi v Migration Agents' Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Sutherland v National Disability Insurance Scheme [2024] AATA 411

Timofticiuc and National Disability Insurance Agency [2021] AATA 3015

Administrative Review Tribunal (Common Procedures) Practice Direction 2024

Administrative Review Tribunal (Expert Evidence) Practice Direction 2024

National Disability Insurance Agency, NDIS Operational Guideline, Applying to the NDIS (applicable to NDIS requests made before 3 October 2024)

National Disability Insurance Agency, NDIS Operational Guideline, Assistive Technology (equipment, technology and devices), 20 December 2023

1. HZSG is the Applicant in this review. She is now 42 years-of-age, living alone in a unit provided by a State housing agency, reliant on a disability support pension, and estranged from most members of her family. HZSG is a survivor of multiple forms of trauma, including intimate partner and family violence. English is not her first language, and she does not speak it well, requiring an Arabic interpreter throughout the hearing of her review. HZSG has a history of issues with her mental health and wellbeing, being diagnosed previously at different times with major depressive disorder, anxiety disorder, schizophrenia, delusional thoughts (including paranoia and visual hallucinations), post-traumatic stress disorder (PTSD), obsessive compulsive disorder (OCD) and borderline personality disorder (BPD).
2. The impairments arising from HZSG's psychosocial disability resulted in her being granted access to the National Disability Insurance Scheme (the NDIS) in 2019. Under her NDIS plans she received significant supports. However, in 2023 that access was revoked by the National Disability Insurance Agency (the Agency), leaving HZSG without access to support through the NDIS.
3. This review concerns that decision by the Agency, and whether HZSG meets the access criteria for the NDIS.

1. HZSG was granted access to the NDIS on 12 December 2019.[1] Three NDIS plans for HZSG were provided by the Agency in evidence for this review. Some brief details from those three plans are to be noted.

NDIS plan for the period 18 December 2020 to 18 December 2021[2]

1. This plan contained a 'profile' part, which included a section headed 'About me', where the following information appeared:

My name is [HZSG], and I am 37. I currently live on my own, in a unit provided by the department of housing. I have lived here for more than ten years now. I have two children aged 14 and 16 who live with my ex-husband. I do not see or have any contact with them. I have a close family friend named [K], and she helps when she can.

I will usually sleep throughout the day and only wake around 5.30pm. Due to my sleep routine, it is difficult for me to connect with services as these aren't usually available in the evening and I often cancel or miss specialist health appointments that have been booked. K will sometimes take me out to do shopping at night, when I feel up to it. I mostly spend my time at home, where I am very isolated. I find it difficult to engage with people but I would like to explore increasing my social opportunities. I have support to clean my home each week and to have someone assist me with my personal care routines and reminding me to take my medications.

1. This plan listed the goals that HZSG wanted to achieve. They were as follows:
   • Short-term goals:
     • 'I would like to improve my mobility skills so that I can access the community safely'; and
     • 'I would like to increase my social and community participation to improve my wellbeing and make new friends.'
   • Medium or long-term goals:
     • 'I would like to develop skills in being more independent and maintaining my home environment and continue to be independent in my own home';
     • 'I would like to learn strategies to manage my anxiety so I can engage in meaningful activities';
     • 'I would like to improve my self-care skills to maintain my independence'; and
     • 'I would like to find strategies to maintain and reduce my bills, so I can sustain living independently.'
2. This plan included total NDIS funding for supports, for the one year of its duration, of just under $64,000. Of that funding, the bulk (over $52,000) was directed towards core supports to assist HZSG in her daily care needs, maintaining her home, and participating in community, social and recreational activities. The remaining funding was for capacity building supports, including the coordination of her supports.

NDIS plan for the period 4 August 2021 to 4 August 2023[3]

1. This plan came into existence following the Agency conducting an 'unscheduled' review of HZSG's plan, after receiving 'new information' about her disability related support needs.
2. In this plan no changes were made to the above profile section about HZSG, or to her goals. However, total support funding increased to over $160,000, for the two years of this plan.

NDIS Plan for the period 13 April 2022 to 12 April 2024[4]

1. This final plan arose following further new information and another unscheduled review by the Agency.
2. Again, the profile section of HZSG's plan was not updated, and her goals were unchanged. Funded supports for the two years of this plan increased to over $270,000, of which over $241,000 was allocated for core supports.
3. The three plans, viewed in order, reflect the increasing support needs of HZSG, as assessed by the Agency, across the period of time covered by the plans.

1. However, the final plan did not run until its stated review date of 12 April 2024. This is because the Agency determined, in late 2022, to conduct a reassessment of HZSG's eligibility as a participant in the NDIS.
2. From the documents provided by the Agency during this review, it would appear that the Agency instigated this process by sending a letter to HZSG dated 17 November 2022.[5] This letter was written in the English language, although it did contain some information and phone numbers for various assistance services, including a phone number that could be called '[i]f you need help with English.' The letter advised HZSG that:
   • 'we need to check your eligibility for the NDIS'.
   • 'If you wish to continue with the NDIS, you will need to provide us with evidence that you meet the disability/early intervention requirements.'
   • 'Based on the information we have you may no longer meet these requirements.' This information was not however detailed in the letter.
   • She had 28 days to provide the Agency with evidence relating to the following specified issues:
     • 'does a permanent impairment substantially reduce your functional capacity?' and
     • 'evidence of functional capacity.'
   • HZSG did not need to send the Agency evidence already provided. In this regard, the Agency's letter referred to:
     • assessments of Waren Berger, Occupational Therapist, dated 8 April 2021 and 28 January 2022.[6]
     • report of Bernadette Beary, Occupational Therapist, dated 10 December 2019;[7] and
     • NDIS Application form from Dr Joseph Di Silva, dated 28 January 2022 (sic). (It would appear the correct date for this form was 15 August 2019).[8]
   • If HZSG decided not to provide more evidence, the Agency would make a decision based on the evidence it had.
3. It would appear that the Agency did not receive a response from HZSG, leading to it sending a follow-up letter dated 9 February 2023.[9] This letter was again written in English, containing the accompanying information about assistance services, as noted previously. It was expressed in different terms to the Agency's earlier letter, referring to the disability requirements and early intervention requirements for the NDIS. The above reports were again noted (all were correctly dated in this letter), and HZSG was advised that after 28 days from the date of the letter, the Agency would consider the evidence it had and anything HZSG provided in response to the letter, and then make a final decision about whether she was still eligible for the NDIS.
4. Again, it appears that HZSG did not respond to this letter.

1. By letter dated 15 May 2023 the Agency informed HZSG of the outcome of her eligibility check for the NDIS. HZSG was advised by a delegate of the Chief Executive Officer (CEO) of the Agency that she did not meet the disability requirements or the early intervention requirements for the NDIS. This outcome letter noted that no response to the two eligibility check letters had been received. Further, it was considered that HZSG did not meet the requirement relating to permanency of her impairments, arising from 'major depressive disorder', as the available evidence did not indicate that all available and appropriate treatments have been explored.[10] These requirements are explained in detail in following sections of this decision.
2. On 26 May 2023 HZSG requested, through her advocate, Dr Hesham Alkhalayleh,[11] that this decision be reviewed by the Agency.[12] On 31 May 2023 another delegate of the CEO upheld the original decision that HZSG did not meet the access criteria to remain as a participant of the NDIS.[13] This is the 'reviewable decision' (the decision under review) that is now before the Tribunal.
3. In making this decision, the delegate advised HZSG that the main document considered was a report from Dr Alfred de Robillard, Psychologist, dated 19 May 2023.[14] The delegate found that HZSG did not meet the permanence, functional capacity, social and economic participation and lifetime support requirements of the disability requirements for the NDIS, nor did HZSG meet any of the criteria for the early intervention requirements.
4. On 6 June 2023 HZSG, through Dr Alkhalayleh, lodged an application with the former Administrative Appeals Tribunal (the AAT) seeking review of this decision.[15]

1. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
2. Dr Alkhalayleh represented HZSG throughout the review and at the final hearing. The Agency was represented at the hearing by internal officers, instructing Ms Amy Douglas-Baker of Counsel.
3. The review was heard by video (by Microsoft Teams). The hearing commenced on 28 April 2025 and continued on 29 and 30 April 2025. It was attended by some scheduling challenges. In preparing for the hearing and in accordance with timetabling directions made by the Tribunal, the Agency had conferred with HZSG's advocate to prepare a joint hearing bundle, and also a proposed witness schedule. Several versions of that schedule were provided and unfortunately the timings contained within those reflected a consistent under-estimation of how long segments of the hearing and witnesses' evidence would take. In part, this outcome arose because of the need for Arabic interpreters to attend and interpret throughout the hearing, although that had been flagged throughout the review. This lengthened the time needed for the hearing of evidence and procedural matters, and also led to a need to take more frequent adjournments to accommodate breaks for the interpreters. It also became apparent at the commencement of the hearing that Dr Alkhalayleh, who had been listed in some but not all earlier iterations of the witness schedule, would be giving some evidence in the Applicant's case. The Agency's counsel submitted, and I agreed, that this should occur before other witnesses gave evidence, including the Applicant. This resulted in amendments to the proposed witness schedule.

Further, there were some technical challenges at times with the video hearing.

1. I do not mention these factors in any way as a criticism of any of the parties or their representatives, but simply to note that all of these factors meant that some listed witnesses could not be reached at the times initially anticipated by the party proposing to call them and gave rise to the need for a constant rescheduling of the hearing and witness program. In particular, this impacted on the availability of one medical witness, Dr Naveen Nataraj, who was sought to be called to give evidence for the Applicant, but who was not reached at the time initially anticipated for his evidence. While lengthy exploration was undertaken as to other times across the originally listed hearing dates when Dr Nataraj might be available, no suitable time could be identified. This in turn led to the need to adjourn the hearing on 30 April 2025, so that a future date could be identified when that witness, the parties and I were all available.
2. This proved to be more difficult than anticipated, particularly in obtaining advice as to suitable dates when Dr Nataraj would be available. Ultimately it was necessary for the Tribunal to convene a further directions hearing on 27 May 2025 to try and resolve this impasse. This eventually led to the listing for the hearing to resume on 21 July 2025, to hear Dr Nataraj's evidence and final submissions from the parties.
3. When the hearing resumed on that date Dr Nataraj did not attend. Both parties advised of their willingness to proceed to complete the hearing notwithstanding the non-attendance of Dr Nataraj, and the review proceeded.
4. At the hearing, the Tribunal had before it the documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T-Documents), and other materials lodged by the parties during the review. Most of these relevant evidentiary and other materials were collated in the form of a Hearing Bundle, prepared and filed by the Agency, which also contained relevant excerpts from legislation and the NDIS Rules and Guidelines, and relevant case-law referred to by the Agency in its submissions. The Hearing Bundle also contained documents produced under summonses, issued by the Tribunal at the request of the Agency, by a hospital and three health practices that had provided treatment to HZSG (the summons material). The Hearing Bundle became Exhibit 1 in the proceedings.
5. Additionally, in accordance with its obligations to provide the Tribunal with documents that are relevant to the review, arising from section 25 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act), the Agency provided a supplementary hearing bundle, containing three advices from its Technical Advice and Practice Improvement Branch dated 23 April, 12 August and 14 November 2025. While Dr Alkhalayleh objected to these advices going into evidence, given the nature of these materials and the aforementioned statutory obligation to provide them to the Tribunal, I did not uphold that submission, and this supplementary bundle was admitted as Exhibit 2.
6. Additionally, a letter dated 23 November 2023 from Dr Monir Younan, Consultant Psychiatrist, became Exhibit 3. Dr Younan had previously seen HZSG and had received some targeted questions from the Agency during the review.[16] This letter was his response to those questions.
7. Additionally, both parties filed some written submissions during the review.[17]
8. Dr Alkhalayleh and HZSG gave evidence at the hearing. Mr Waren Berger, an Occupational Therapist, also gave evidence on behalf of the Applicant. Two reports by Mr Berger have been noted above, and a third report by him was filed during the review.[18]
9. The Agency called as witnesses Associate Professor Chanaka Wijeratne, a Consultant Psychiatrist who had undertaken an independent examination of HZSG at the Agency's request, and also Ms Melissa Sale, an Occupational Therapist who had undertaken an independent functional assessment of HZSG at the Agency's request.
10. A/ Professor Wijeratne's report dated 8 April 2024 (A/Professor Wijeratne's report), and Ms Sale's report dated 26 July 2024 (Ms Sale's report), were in evidence and included in the Hearing Bundle.[19]
11. During the hearing I sought the views of the parties on the making of an order pursuant to section 70 of the ART Act_,_ restricting the publication of information tending to reveal the identity of HZSG. This was raised due to the nature of some of the evidence concerning HZSG and particularly her experience of family and domestic violence, and the possible harm that might occur if such an order was not made. After hearing from the parties and having regard to the factors required to be considered under section 71(2) of the ART Act and also the requirements of the Tribunal's Common Procedures Practice Direction,[20] I was satisfied that it was appropriate to make an order. As a result, the pseudonym HZSG is used to identify the Applicant in this decision. Additionally, some other relevant persons are identified by pseudonym, and some locations or entities are described in general terms, so as not to disclose identifying information.

1. In undertaking a review, the Tribunal's role is to come to its own independent conclusion, on the basis of the material before it, as to what is the correct and preferable decision. In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Smithers J said:

The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made.[22]

The Tribunal effectively 'stands in the shoes' of the maker of the decision under review.[23] In undertaking its review, the Tribunal may exercise all the powers and discretions that are conferred on the maker of the decision under review.[24] Also, the Tribunal may consider materials additional to those that were before the decision-maker.[25]

1. In review proceedings of this nature neither party bears a formal onus of proof. However, the Tribunal can only make its decision on the basis of material which is probative and relevant of the matters required by the applicable statute. If an applicant seeking access to a benefit or interest under a legislative scheme does not provide evidence and information sufficient to meet the relevant statutory requirements (which here are the access criteria in the NDIS Act), they cannot succeed.[26]
2. In the recent appeal decision of National Disability Insurance Agency v Lampard [2025] FCAFC 139 (Lampard) the Full Court of the Federal Court cited with approval the following observations made by Senior Member French of the Tribunal in Foster and National Disability Insurance Agency (NDIS) [2025] ARTA 718, a remittal decision following the Full Court decision in National Disability Insurance Agency v Foster [2023] FCAFC 11; 295 FCR 521 (Katzmann, Perry and Sarah C Derrington JJ) (Foster):

Section 21(1) [of the NDIS Act] provides that a prospective participant will meet the access criteria for the NDIS if the CEO is 'satisfied' that each of the access criteria is met. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically. 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 access criteria are met.[27]

1. The applicable legislation in this review is the NDIS Act. Section 27 of the NDIS Act provides for the making of NDIS Rules relating to the section 24 disability requirements and the section 25 early intervention requirements. Those rules, being the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules), are also applicable.

1. After HZSG filed her application for review with the AAT, substantial changes were made to the NDIS Act by amending legislation, being the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the amending Act). Of particular note are the changes that were effected by the amending Act to the NDIS access requirements; while the age and residence requirements remained unchanged, amendments were effected to the disability and early intervention requirements. Additionally, amendments were made to section 21 of the NDIS Act to require the decision-maker to separately consider and decide whether a person meets the disability requirements or early intervention requirements or both. These changes were effective from 3 October 2024.[28] In that context, a preliminary issue arises as to whether the relevant provisions in the NDIS Act to be applied in this review are those which existed at the time when HZSG sought access to the NDIS by challenging the Agency's decision to revoke her access, and later applied to the AAT, or those that appear in the NDIS Act, as now amended.
2. The amending Act included transitional provisions. Under Items 125 and 126 in Part 3 of Schedule 1 of the amending Act, the amendments made to the section 21 access requirements and the amendments made to the disability requirements under section 24 and the early intervention requirements under section 25 of the NDIS Act respectively, apply to a person who makes an access request on or after 3 October 2024. Accordingly, as the amendments made to the access provisions of the NDIS Act only apply to persons making their access request on or after 3 October 2024, HZSG's application must be determined in accordance with the provisions of the NDIS Act existing before that date.
3. Further, Item 126(3) in Part 3 of the amending Act addresses the status of rules made under section 27 prior to 3 October 2024, providing that the rules that were in force immediately before the commencement of Schedule 1 continue in force. This in turn means that the version of the Access Rules in existence prior to 3 October 2024 continues to apply.

1. Section 18 of the NDIS Act provides that a person may make a request (an access request) to the Agency to become a participant in the NDIS. Pursuant to section 20 of the NDIS Act, the Agency's CEO must decide if the person making the access request meets 'the access criteria'. Section 21(1) of the NDIS Act (as it read prior to 3 October 2024) sets out the relevant requirements for this, and provides:

21 When a person meets the access criteria > > (1) A person meets the access criteria if:

(a) the CEO is satisfied that the person meets the age requirements (see section 22); and

(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

(c) the CEO is satisfied that, at the time of considering the request:

(i) the person meets the disability requirements (see section 24); or

(ii) the person meets the early intervention requirements (see section 25).

1. Section 9 of the NDIS Act defines 'meets the disability requirements' to have the meaning given by section 24, which provides as follows:

1. A person meets the disability requirements if:

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

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

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

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self-care;

(vi) self-management; and

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

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

1. 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.
2. 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 support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
3. Subsection (3) does not limit subsection (2).
4. The five disability requirements set out in section 24(1) are cumulative; that is, all of these requirements must be met. The Agency contended that the evidence did not support findings that HZSG met the following disability requirements:[30]

(a) the permanence criteria under section 24(1)(b); > > (b) the substantially reduced functional capacity criteria pursuant to section 24(1)(c), in any of the six listed activities; > > (c) the requirement under section 24(1)(d) that the person's impairments affect their social or economic participation; and > > (d) the requirement of support under the NDIS for the person's lifetime, under section 24(1)(e).

5. Section 25(1) provides as follows, in relation to the early intervention requirements:
   1. Early intervention requirements

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

(a) the person:

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

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

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

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

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

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

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

(iii) improving such functional capacity; or

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

Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

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

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

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

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

1. Similarly, the early intervention requirements under section 25(1) are cumulative. The Agency contended that HZSG does not meet the requirements for early intervention, in that:

(a) Her impairments are not permanent, within the meaning of section 25(1)(a). > > (b) With respect to subsection (b) of section 25(1), HZSG's impairments have not been treated effectively, and could be treated through the pathway of mainstream services. > > (c) Section 25(1)(c) and section 25(3) are not met.[31]

2. As noted, HZSG's status as a participant in the NDIS was revoked through the Agency making the decision under review. Section 30 of the NDIS Act provides for this:

(1) The CEO may revoke a person's status as a participant in the National Disability Insurance Scheme if:

(a) the CEO is satisfied that the person does not meet the residence requirements (see section 23); or

(b) the CEO is satisfied that the person does not meet at least one of the following:

(ii) the early intervention requirements (see section 25).

(2) The CEO must give written notice of the decision to the participant, stating the date on which the revocation takes effect.

1. As noted, section 27 of the NDIS Act provides for the making of NDIS Rules relating to the section 24 disability requirements, or the section 25 early intervention requirements. Section 27 provides:

27 National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements

The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether:

(a) one or more impairments are, or are likely to be, permanent for the purposes of paragraph 24(1)(b) or subparagraph 25(1)(a)(i) or (ii); or

(b) one or more impairments result in substantially reduced functional capacity of a person to undertake one or more activities for the purposes of paragraph 24(1)(c); or

(c) one or more impairments affect a person's capacity for social and economic participation for the purposes of paragraph 24(1)(d); or

(d) the provision of early intervention supports is likely to benefit a person by reducing the person's future needs for supports in relation to disability for the purposes of paragraph 25(1)(b); or

(e) the provision of early intervention supports is likely to benefit a person by mitigating, alleviating or preventing the deterioration of the person's functional capacity to undertake one or more of the activities for the purposes of subparagraph 25(1)(c)(i) or (ii), or improving such functional capacity for the purposes of subparagraph 25(1)(c)(iii); or

(f) the provision of early intervention supports is likely to benefit a person by strengthening the sustainability of the informal supports available to the person, including through building the capacity of the person's carer for the purposes of subparagraph 25(1)(c)(iv).

1. Section 9 of the NDIS Act defines 'National Disability Insurance Scheme Rules' as meaning the rules mentioned in section 209 of the NDIS Act. Section 209(1) provides:

209 The National Disability Insurance Scheme rules

(1) The Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules prescribing matters:

(a) required or permitted by this Act to be prescribed by the National Disability Insurance Scheme rules; or

(b) necessary or convenient to be prescribed in order to carry out or give effect to this Act.

1. NDIS Rules relating to the disability and early intervention requirements have been made; namely, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules). Relevantly, Part 5 of those Rules addresses 'When does a person meet the disability requirements?' and the requirements of 'permanency' and 'substantially reduced functional capacity to undertake relevant activities.'
2. Specifically, rules 5.4 to 5.7 (inclusive) of the Access Rules address the issue of when is an impairment permanent or likely to be permanent for the disability requirements. These Rules provide as follows:[32]

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 (see paragraph 5.1(b)) 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.

1. Rule 5.8 addresses the issue of when does an impairment result in substantially reduced functional capacity to undertake one or more of the relevant activities outlined in section 24(1)(c) of the Act, and 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, 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. Part 6 of the Access Rules addresses '[W]hen does a person meet the early intervention requirements?' and again addresses the requirement of 'permanency', and additionally 'deciding whether provision of early intervention supports is likely to benefit the person.'

1. The Agency has also issued some Operational Guidelines which are relevant to applications to access the NDIS. These guidelines are published on the NDIS website and are described by the Agency as guidelines that set out some of the Agency's 'operational information': '[T]hey explain what we need to consider and how we make decisions based on the legislation.' [33] The guidelines of relevance to this review are those entitled 'Applying to the NDIS' (the Access Guidelines), being that version of the Access Guidelines relating to requests for access to the NDIS made before 3 October 2024.

Unlike the NDIS Rules, the NDIS Guidelines are not made pursuant to a power conferred by the NDIS Act; they are issued in an exercise of executive power.[34] As such, the Guidelines set out the Agency's policy and provide guidance in how relevant powers are to be exercised. Ordinarily the Tribunal will apply such policy in reviewing a decision, unless the policy is unlawful, or unless its application tends to produce an unjust decision in the circumstances of the particular case.[35]

DOES HZSG MEET THE ACCESS REQUIREMENTS FOR THE NDIS?

1. HZSG was a participant in the NDIS and was 39 years old at the time when the NDIS revoked her participant status in 2023. She is an Australian citizen, living permanently in this country.[36] As such, I find, that HZSG meets the age and residence requirements in sections 22 and 23 of the NDIS Act.

Section 24(1)(a) - disability attributable to impairments

1. The first of the section 24 disability requirements is that the person applying for access to the NDIS 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.
2. In the case of Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), Mortimer J (as her Honour then was) said the following about the concepts of 'disability' and 'impairments', in the context of the section 24 requirements:

... The term "disability" is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person's impairments on that person's abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.[37]

1. The Agency's primary written submission in this review was its Statement of Facts, Issues and Contentions, dated 6 January 2025 (the Agency's SFIC). Therein, the Agency contended that HZSG lives with psychosocial impairments attributable to schizophrenia, delusional thoughts including paranoia and visual hallucinations, PTSD, OCD and BPD.[38] Counsel for the Agency also submitted at the hearing that section 24(1)(a) was met.
2. An issue arose in the evidence, as discussed in a later section of this decision, as to whether the diagnoses of schizophrenia and BPD could be supported, and also whether HZSG suffered from major depressive disorder (MDD).
3. In looking at the impairments that arise from HZSG's psychosocial disability, Ms Sale (who had been briefed by the Agency with referred medical evidence, including the T-Documents, the summons material and Dr Wijeratne's report),[39] prepared a useful summary in her report as to how HZSG's mental health impacts her functioning:

Analysis of the medical evidence provided and my assessment of HZSG has allowed for acceptance of the following assumptions regarding her medical conditions:

3.1.1 Major depressive disorder, obsessive compulsive disorder, panic disorder with

agoraphobia, post-traumatic stress disorder resulting in:

• heightened levels of anxiety and panic
• depressed mood
• severe social withdrawal
• severe social isolation
• loneliness
• distrusting of others
• compulsive behaviours such as excessive hand washing and use of sanitiser wipes for germ contamination and excessive teeth brushing
• avoidance behaviours
• intrusive thoughts
• paranoid delusions (fear of being attacked and fear of people breaking into her home)
• fearfulness of others
• auditory hallucinations
• frustration
• verbal irritability
• impaired appetite
• poor sleep routine and sleep habits (awake most of the night and sleeping during the day)
• fatigue and tiredness
• amotivation
• avolition [40]

1. When Ms Sale undertook her assessment on 27 June 2024, she was advised by HZSG that 'her symptoms have remained unchanged for many years'.[41]
2. HZSG also filed some statements in the review, including a statement of lived experience,[42] which was prepared by her advocate. It refers to many of the impairments noted by Ms Sale.
3. I also note that the symptoms reported by HZSG to A/Professor Wijeratne during his assessment, and noted in his report, reflect those identified by Ms Sale.[43]
4. I am satisfied that HZSG lives with the impairments noted by Ms Sale, to which psychosocial disability is attributable. I find that section 24(1)(a) is met.

1. Throughout the review the Agency contended that section 24(1)(b) was not met in relation to HZSG's psychosocial impairments. The Agency considered there is insufficient evidence to establish that HZSG has explored all known, available and appropriate treatments that would be likely to remedy her impairments, and the application of Rule 5.4 of the Access Rules would mean that I could not be satisfied that HZSG's psychosocial impairments are permanent.

1. Before outlining the medical evidence relating to HZSG's impairments and their treatment, I will note some information about HZSG's personal and psychiatric history, to place this evidence in context.
2. The following information comes from the report of A/Professor Wijeratne, the independent consultant psychiatrist engaged by the Agency to assess HZSG and provide an opinion,[44] and is based on information reported by HZSG to A/Professor Wijeratne during his assessment.
3. HZSG was born in Iraq. She described her childhood as 'very hard and very bad.' When she was 11 years-of-age (which would have been around 1994), she and her entire family walked for nine days over mountains to reach neighbouring Iran, hoping for financial security. However, their life in Iran was associated with more poverty, no access to education and no rights, due to their status as illegal immigrants.
4. HZSG arrived in Australia with her parents and some siblings in 2001, sponsored by other siblings who had by then married Australian citizens. HZSG married in 2002. There are two children of that marriage, both now young adults. The marriage ended in divorce in 2009. HZSG experienced domestic violence at that time. She moved in with her family, and experienced further violence and mistreatment.
5. HZSG's mother has now reportedly 'disowned' her due to her mental health issues and has restricted her siblings from contacting her.[45] Her father died in 2024. HZSG last saw her children, for one hour, some 18 months before her attendance upon A/Professor Wijeratne. They are reportedly reluctant to see her, saying that she did not raise them, and they do not know her. HZSG also reported receiving no text messages or calls from friends.
6. HZSG reported some mild depression in her early adolescence, after migrating to Iran. She developed a postnatal psychiatric disorder after the birth of her second child, reporting depression and the onset of rituals, such as washing her hands repeatedly and washing cooking pots for two hours, due to fears of her hands being contaminated. HZSG also reported hearing voices and fearing she would be harmed. She lost weight and her appetite. Her family were not supportive and did not want her to take antidepressant medication.
7. HZSG was admitted to a hospital mental health inpatient unit for four weeks in 2009, following the end of her marriage. After her discharge, HZSG lived in two women's refuges over an 18-month period.

The Applicant's medical and allied health evidence

1. When first applying to access the NDIS in 2019, HZSG provided supporting forms completed by a psychologist, Dr Di Silva, as noted above,[46] and also her General Practitioner, Dr Matter.[47]
2. Dr Di Silva noted HZSG's disabilities as PTSD, anxiety and depression, for which she was at that time receiving 'psychological treatment.' He answered in the negative a question asking "[i]s there any other treatment that is likely to remedy the impairment?' [48]
3. Dr Matter noted the same disabilities, and that HZSG's current treatment additionally included 'antipsychotics' and 'antidepressants'. Dr Matter also answered the above question about other treatment in the negative.[49]

1. As noted, Ms Bernadette Beary, Occupational Therapist, had authored a report about HZSG dated 10 December 2019.[50] Therein, Ms Beary noted HZSG's history of reported trauma and mental illness, noting also that HZSG experienced the following:
   • A history of severe panic attacks, during which she experiences shortness of breath and feeling as though she may faint, with a history of falls.
   • Symptoms of schizophrenia and OCD (undiagnosed), including hearing voices, which impacts on her sleep (only sleeping for two to three hours per day); frequent handwashing with scalding water; compulsions to wipe down all surfaces and objects in her home before she can touch them, and to wash her clothes several times a day. She covers her furniture in plastic.
   • Feelings of paranoia and distrust, leading to a requirement for extensive support from others to motivate her to participate in activities.[51]
2. Ms Beary undertook a WHODAS (World Health Organisation Disability Assessment Scale 2.0) assessment of HZSG. HZSG's level of difficulty with the six activities comprising 'Understanding and Communicating' was assessed by Ms Beary as 'severe', with Ms Beary commenting:

HZSG's cognitive state has been significantly and negatively impacted by her disability. Hr racing thoughts and reported auditory hallucinations render it nearly impossible for HZSG to concentrate on a task. She relies on others to remind her of and accompany her to important appointments. HZSG experiences panic attacks frequently, although they can occur without a clear trigger, many common daily problems may prompt the chest pain, dizziness and shortness of breath associated with these attacks. During assessment, HZSG demonstrated poor working memory and was unable to recall words listed to her. HZSG was also disorientated to date. Because of her paranoia and extreme distrust of others, HZSG does not have social contact outside of formal services, such as medical appointments and her friend (Z).[52]

1. Ms Beary also assessed HZSG as experiencing a 'severe' level of difficulty with activities involved in 'Getting Around', noting HZSG constantly 'feels dizzy' and her falls history, and commenting:

HZSG spends most of her day sitting and 'thinking' as she is unable to leave the house without 1:1 support. HZSG has anxiety and symptoms of her mental illness prevent her from venturing from her known home environment and into the community.[53]

1. Ms Beary also assessed HZSG as experiencing either severe or extreme difficulty in performing activities relating to 'Self-Care' and 'Getting Along with People', and extreme difficulty in undertaking tasks involved with 'Life Activities' and 'Participation in Society'. Ms Beary noted:

HZSG requires support when leaving the house. She is unable to independently participate in community activities. HZSG becomes overwhelmed quickly when in crowded spaces such as a train platform. She often feels faint and may experience a panic attack. Even with individualized and one on one support, HZSG's anxiety renders most community outings too overwhelming. HZSG's obsessive washing of her clothes and use of hot water has caused her extreme financial hardship. Her utility bills are much higher than an average family's.[54]

1. Ms Beary also assessed HZSG through use of the Barthel Index of Activities of Daily Living, and the Lawton-Brody Instrumental Activities of Daily Living measure.[55] Ms Beary concluded that HZSG's 'main difficulties' were her capacity to mobilise, carry out activities of daily living, communicate with others and participate in community activities. Ms Beary made a number of recommendations for allied health supports, including a recommendation for 'support work hours for community transport and companionship to medical appointments.'[56]
2. As noted, another occupational therapist, Mr Berger, provided three reports relating to HZSG.[57] Mr Berger also gave evidence at the hearing.[58]
3. Mr Berger's third and most recent report, relating to an assessment of HZSG that he conducted on 6 July 2023, was prepared after HZSG's access to the NDIS had been revoked. The report noted that the assessment was conducted by Mr Berger interviewing HZSG 'and her disability support'. In his oral evidence at the hearing, Mr Berger confirmed that Dr Alkhalayleh, who had referred HZSG to him, was present at this assessment and interpreted for HZSG, as had happened in the assessments conducted for his earlier reports. There was also a support worker in attendance.
4. The three reports by Mr Berger contained much common content. The majority of such content dealt with Mr Berger's views about HZSG's functional capacity and the types of supports required by her, and the levels of those supports. These aspects will be dealt with in a later section of this decision. Mr Berger also recounted the outcomes of his administration of the same WHODAS scale as administered by Ms Beary, and also the Australian Modified Lawton's Instrumental Activities of Daily Living Scale, a Patient Health Questionnaire and a Life Skills Profile.
5. Relevantly, for the purposes of considering HZSG's impairments attributable to psychosocial disability and the treatment engaged with by HZSG for those impairments, Mr Berger noted that HZSG was taking an anti-depressant medication (Effexor,[59] 75mg), and stated of HZSG's medical history:

HZSG is a 39-years-old female with a primary diagnosis of paranoid schizophrenia

experiencing both auditory and visual hallucinations. HZSG is well known to mental health

services and has been hospitalised frequently for recurrent episodes of psychosis. HZSG has OCD and fear of germs. She suffers from debilitating anxiety and depression.[60]

1. Mr Berger's third report also contained a section titled 'Background/Living/Social situation', wherein Mr Berger stated:

HZSG is a 39-years-old female with serious mental illness, paranoid, and antisocial/verbally aggressive behaviours. HZSG lives alone in a DOH[61] unit and has a troubled history of psychosocial issues with her neighbours. She mostly isolates herself from all social contact in fear she is constantly watched and judged. HZSG has a fear of public places and will only go on short outings with her carer. HZSG had her NDIS plan cancelled in the past 2 months but continued to receive minimal support from her disability provider as a form of charity. HZSG has nil informal supports and truly cannot manage on her own. HZSG has a history of panic attacks and hyperventilation. She becomes dizzy and falls. HZSG stays at home without meaningful activities. She does not listen to music, does not read, or watch TV. She constantly worries and looks at her phone. HZSG has nil contact with her family due to psychosocial issues. HZSG has significant emotional regulations dysfunction. She is very labile and lashes out during conversations. This causes significant impairment in developing and maintaining meaningful social connections. HZSG has a fear of germs and has increasingly struggled with her OCD. She uses hand sanitizer wipes on all surfaces before touching then leaves them on the floor in her unit. HZSG is very argumentative and noncompliant. HZSG has increased issues with her urine incontinence. She covered a mattress with plastic and placed it in the lounge room on the floor. She sleeps on the mattress on the floor as she is convinced that her neighbours can spy on her inside her bedroom. HZSG also covered the kitchen and lounge room windows with plastic in fear her neighbours can see inside the unit. HZSG has unfortunately been living in squalor and hoards. Her unit is in deplorable state of unsanitary condition. HZSG desperately needs her NDIS plan reinstated to access supports for capacity building and daily living supports to cope with the effects of her disability.[62]

1. Mr Berger also stated, in relation to HZSG's current treatment, that 'HZSG is currently managed with prescribed medications for her visual and auditory hallucinations. She is treatment resistant and highly paranoid about poisoning.' [63]
2. A/Professor Wijeratne reviewed Ms Beary's report, and the first two reports of Mr Berger. He commented '[t]hese all indicate she has significant difficulties with activities of daily living.'[64]

1. Dr Alfred de Robillard is a psychologist. He conducted an assessment of HZSG on 18 May 2023 and provided a report dated 19 May 2023.[65] This report was submitted to the NDIS and, as noted, considered when the CEO's delegate made the decision now under review. During the course of this review the Agency submitted some targeted questions[66] to Dr de Robillard; his answers to these questions were also in evidence.[67]
2. In conducting his assessment of HZSG, Dr de Robillard noted that he carried out a 'case conference' with HZSG and Dr Alkhalayleh in attendance. He said the following of this conference:

HZSG did not respond to any of my questions and was completely disengaged during the entire assessment and [Dr Alkhalayleh] answered all the questions on her behalf.[68]

1. In answering the Agency's targeted questions, Dr de Robillard further noted that the assessment was conducted:

... through telehealth, as HZSG was not prepared to meet me in person. [Dr Alkhalayleh] answered all the questions in her behalf and I did not hear her voice at all.[69]

1. Dr de Robillard's description of HZSG's medical conditions was consistent with all of the reports noted above. Additionally, he noted:

She has been prescribed several psychotropic medications but it is unsure she is taking them regularly due to her severe cognitive deficit which makes her incapable to attend to her affairs.[70]

1. Dr de Robillard administered two questionnaires (self-report and family member questionnaires) during the conference, with Dr Alkhalayleh providing 'many of the answers' to these instruments.[71]
2. Dr de Robillard stated his opinion regarding HZSG in these terms:

HZSG has severe mental conditions impacting on her ability to function as a normal citizen. She presents as someone who is psychotic and cannot hold a normal conversation. She has been traumatised since she was in Iraq and is highly paranoid. Furthermore she isolates herself from anyone and does not get ongoing treatment for her mental conditions which is very necessary. She is not likely to make any friends nor connect with any family members due to her present state of mind. She lacks self love and always talk about wanting to commit suicide. She would need experienced support workers who can handle people who are highly paranoid and delusional. She is non functioning and requires intensive assistance urgently.[72]

1. Dr de Robillard also made several recommendations for treatment and support of HZSG. These included urgent help from a psychiatrist to review her medications, and for ongoing psychological treatment.[73]
2. In answering the Agency's questions about what supports are appropriate and available to HZSG through the health system or otherwise, Dr de Robillard responded that psychological support was available through the health system; psychiatric treatment was 'very costly'; and the 'costs of treatment are the main issues' for HZSG.[74]
3. For completeness, it is noted that Dr de Robillard received and complied with a summons to produce documents relating to HZSG. The documents provided included his report and the requesting referral letter sent on behalf of Dr Alkhalayleh.

1. Dr Naveen Nataraj is a Consultant Psychiatrist. He provided a report dated 29 October 2024. This report was expressed to be in support of HZSG's application for NDIS funding.[75] As noted, while arrangements were made by HZSG's advocate for Dr Nataraj to appear at the hearing, and the proceedings were adjourned to a suitable and nominated date for this to occur, Dr Nataraj did not appear and did not provide further evidence beyond his report.
2. In that report, Dr Nataraj advised that HZSG had been referred to him by her General Practitioner. He reviewed HZSG on 25 September 2025. It would appear this review was conducted with the assistance of a telephone interpreter, and in the presence of a support worker,[76] who contributed some information during the assessment.
3. Dr Nataraj noted that HZSG 'experiences severe and permanent mental illness', having been diagnosed with depression and schizophrenia and OCD, and additionally experiencing childhood trauma, significant domestic violence and social isolation. He opined that HZSG presented 'with a severe psychosocial disability due to the cumulative impact' of these factors.[77] Dr Nataraj noted that HZSG had apparently received treatment at public and private hospitals and had trialled multiple medications that she has not tolerated, the most recent medication being Venlafaxine.
4. In his notes about his 'Mental State Examination' of HZSG, Dr Nataraj recorded:

Guarded in her responses, limited engagement. She became very agitated for a brief period during the review. However she could contain her anger and apologized for her behaviour. Noted her hands slightly erythematous,[78] due to excessive washing.

Reported mood as feeling depressed and angry. However denies it being pervasive.

Affect was mostly restricted, except for the outburst as noted above.

Thought Content - Obsessions with content of contamination. Compulsive Washing. Themes of helplessness and loneliness.

Denied any suicidal ideation, intent or harm or thoughts to harm others. Stated this would be against her religion.

Perception - Auditory hallucinations, support worker has noted her responding to voices.

Limited insight into both obsessive symptoms and psychotic symptoms. However acknowledges she needs MH [Mental Health] treatment and support.[79]

1. Dr Nataraj made some recommendations about HZSG's support needs, and also noted that he had commenced her on Risperidone[80] and intended to review her in two months, noting 'she needs ongoing follow up to build trust and engagement and facilitate treatment adherence.'[81]

1. As noted, a letter dated 23 November 2023 from Dr Monir Younan, Consultant Psychiatrist, was in evidence in the review.[82] Dr Younan had been identified, through Dr Matter's records, as providing past care to HZSG, and for that reason received some targeted questions from the Agency during the review.[83]
2. In his letter, which was short, Dr Younan advised that he had reviewed his clinical notes and found that he had seen HZSG on three consultations, the last being on 27 October 2020. As such, he stated that he could not comment on her current condition.[84]

1. At the request of the Agency, the Tribunal issued some summonses to produce documents during the review.
2. One such summons was to a local metropolitan hospital attended on occasions by HZSG. The records produced by this hospital did not reflect that HZSG had attended to receive specific mental health treatment; the records related to attendances over a period of several years relating to physical ailments.[85]
3. It is noted that during one emergency admission in March 2016 arising from symptoms of headache, coughing and vomiting, a treating registered nurse noted:

Patient has history of OCD, seen washing hands multiple times, also cleaning hands with alcohol wipes - patient refusing water and paracetamol as patient believes its contaminated with germs. MHT [Mental Health team] aware.[86]

1. Further nursing notes relating to another hospital attendance in September 2019 recorded that HZSG had a past medical history of depression and anxiety, was 'very anxious', had been 'recently referred to new psychologist', had 'dermatitis on skin from frequent handwashing' and 'needs encouragements'.[87]
2. Dr Matter, HZSG's primary General Practitioner, also produced records under summons.[88] These records, produced to the Tribunal on 3 October 2023 and therefore current to that date, reflected the following about Dr Matter's treatment of HZSG:
   • Among the medications prescribed for HZSG was the antidepressant, Venlafaxine.
   • HZSG had a history including depression, with bipolar 2 disorder also noted.
   • It appears that the first consultation relating to psychosocial impairments occurred in June 2019,[89] with HZSG presenting with 'symptoms of anxiety with panic attacks, shortness of breath and feels tired all the time. She also feels muscles are tense, unable to manage, feels heartbeat, shakes, afraid all the time she shows signs of fear and tremor.' Dr Matter diagnosed HZSG as having an anxiety order and depression, undertook relaxation therapy and advised her to see a psychologist, with a review in two weeks. He prepared a mental health plan for HZSG in August 2019, and a referral to Dr Di Silva was made in September 2019.
   • Over the next year Dr Matter regularly saw HZSG for consultations regarding her psychosocial impairments. Some consultation notes indicate that HZSG was 'not ready' to be reviewed by a psychologist. Dr Matter increased the dosage of her antidepressant medication in May 2020. A referral to Dr Younan and a further referral to Dr Di Silva were made.
   • Dr Matter continued to see HZSG for her psychosocial impairments in following years.
3. As noted above, Dr Younan advised he saw HZSG on three occasions. Dr Younan first reported back to Dr Matter by letter dated 22 July 2020.[90] Therein he said:

The only complaints she presented were about inability to sleep at night, carrying many worries, and having taxing chest oppressions. As I dragged the history from her with difficulty, I learnt that her first episode of a psychiatric disorder was in 2007 and that followed giving birth to a child. She could not give me a clear description of her condition at that time but she admitted that she was imagining things and was hearing voices. Most likely this was post-partum psychosis. Apparently because she was mentally ill, her husband left her and eventually took custody of her two children. She stated that she has not seen her children since 2012. I also learnt that she was admitted to [a] Hospital and was also an outpatient at [another] Hospital. She stated that she was prescribed Lexapro which "gave me strength" (possibly elevated her mood). She was then prescribed Effexor which she currently takes at a dose of 75mg + 37.5mg daily. She stated that she has been on that dose for the last one and a half months.

At the interview I found her mood rather unstable. She certainly was not depressed or melancholic but in fact she could at times laugh warmly. I got the impression the most likely diagnosis is either bipolar disorder (mixed type) or schizoaffective disorder. As I found her contented with the Effexor, I maintained her on that dose but added Seroquel[91] 25mg one tablet at night.

1. This review occurred on 21 August 2020. Dr Younan reported that HZSG did not appear depressed, reported no positive or negative effects of the Seroquel medication, and spoke of moving to more appropriate accommodation. Due to concern that the Effexor 'might be pushing her into the elevated mood', he advised HZSG to gradually reduce it, and to double her dosage of Seroquel, which she could continue to take under Dr Matter's care, if helpful.[92] Another consultation took place on 27 October 2020, with further changes made to HZSG's medication regime.[93]
2. The final set of summonsed records were produced by a physiotherapy practice attended by HZSG across 2021 to 2023, funded by the NDIS.[94] Those records note HZSG has experienced shoulder and elbow pain since a fall in 2013. Relevantly, those records reflect repeated instances of HZSG not attending or cancelling appointments, at times engaging in some dispute with the practice; for instance wishing to receive services in the evening, rather than at the appointed time.

1. Dr Alkhalayleh gave evidence on the first day of the hearing, following confirmation that the Agency's Counsel sought to ask some questions of him. He is a director and works as a support co-ordinator at a metropolitan support service. It was established he has known HZSG since 2021.
2. Relevantly, he gave evidence that HZSG had been referred to a psychologist by him while acting as her support coordinator under her NDIS plan, and noting that she would not attend appointments due to her need to sleep during the day, and would not open the door if a therapist attended at her home. He nominated Dr de Robillard as the relevant practitioner in this context. He was aware that HZSG's general practitioner had encouraged HZSG to see a psychologist, but she refused. He had also looked into psychologists who spoke Arabic, of which there was a small number, none of whom would travel from their clinics for appointments.
3. During his cross-examination Dr Alkhalayleh was asked about HZSG's capacity to attend appointments, with his attention being drawn to HZSG's presence with him, at the premises of his service, to attend the first day of this hearing (by video). He explained this was:

'because this is her life, she rely on the NDIA so much. I convinced her to come today by sending someone to pick her up from there, bring her here and then they will take her back home because she does not catch public transport. So for her this is do or die, and she understands this.'

1. When asked about any change in HZSG's attitude across the years she received support through the NDIS, Dr Alkhalayleh noted there had been 'slight' improvement, and cited her engagement with him, despite her previous 'phobia' of meeting any man following her experience of domestic violence.[95]

1. HZSG gave evidence on the afternoon of the first day of the hearing, with the assistance of an interpreter. When giving her evidence she complained of feeling sleepy and dizzy, stating she had not slept for two days, and that she usually went to bed to sleep around 8 or 9 in the morning. She also gave evidence that:
   • She understood some but 'very little' English.
   • Sleeping pills prescribed for her were ineffective, and caused her to have a nervous breakdown and shortness of breath.
   • She was seeing her general practitioner.
   • She had trouble remembering to take her medication - explaining she had fallen on her head some eight months previously, and had experienced dizziness and was unable to focus since that fall. HZSG stated she did not know what medication she was taking, although she did later refer to her 'antidepressant' making her tired, and taking medication of two colours every day. HZSG did not know if she was currently seeing a psychologist. She could not remember seeing a physiotherapist.
   • She had not eaten since the previous morning, mainly eating something like biscuits, cheese or yoghurt, that did not require cooking. She last showered 'maybe a week ago.'
   • When asked if she was having trouble answering questions because she was tired, HZSG replied 'I'm always like that ... today I'm speaking and responding more than usual.'
   • Her life 'was a bit easier' when she had access to the NDIS:

It is a big worry for me, a great concern for me if the woman[96] stops coming ... because I'm very tired ... I have no one, I feel like there's no one with me in this world but God.

• The assistance provided to her by this support worker included washing clothes; taking out the rubbish (HZSG stated that she uses a huge amount of wet wipes every day to clean around herself and this produces a lot of rubbish); cleaning and putting the house in order; taking HZSG out for shopping in evenings; and reminding her to take her medication and eat, including through text and voice messages.
• When shopping 'I fill the cart with boxes of wet wipes ... because the shopping carts are dirty, I take boxes to put the groceries in them.'[97]

1. A/Professor Wijeratne was briefed by the Agency[98] with the T-Documents, summons material and also Dr de Robillard's answers to the targeted questions asked of him. HZSG attended A/Professor Wijeratne's rooms on 5 March 2024, accompanied by a female support worker and an interpreter. A/Professor Wijeratne noted that HZSG's support worker did not provide any history during the consultation.
2. A/Professor Wijeratne noted the following issues were reported by HZSG:
   • No energy to look after herself or her apartment
   • She spends most of the day in bed, sleeping for 4 to 6 hours. Her medication causes sedation. She does not sleep at night.
   • She eats a light breakfast after waking but does not eat other meals due to lack of appetite.
   • Due to fear of contamination she washes her hands repeatedly (although there had been some reduction with the use of her current medication).
   • She experiences recurrent episodes of anxiety marked by shortness of breath, shaking, nausea, diarrhoea and a fear of dying. These episodes have resulted in multiple presentations to hospitals, and HZSG is afraid she will experience another such episode if she leaves her apartment. Additionally, she is afraid of dogs and people living near her area.
   • HZSG described her mood as 'scared'; she is fearful that someone may be in her home. and hears voices intermittently.
   • HZSG has 'multiple enduring stressors, including her accommodation in social housing, lack of contact from friends, and estrangement from her family members.[99]
3. A/Professor Wijeratne recorded his observations about HZSG's mental state, noting that she presented wearing a mask, which she attributed to a fear of infection, and carried a small box containing handwipes and latex gloves. Her hands were noticeably raw and red. HZSG interacted in a polite manner, there was no suspiciousness or irritability. Her affect was mildly restricted, her speech was normal and A/Professor Wijeratne saw no evidence of any psychotic symptoms.[100]
4. In summarising HZSG's medical history and presentations, A/Professor Wijeratne said:

HZSG's psychiatric history and current symptoms have been outlined above.

She has a complex psychiatric presentation that is marked by multiple developmental stressors, including being a refugee as both a child and again as an adult, a victim of family and intimate partner violence, isolation from her family of origin and children, and a person from a culturally and linguistically diverse background.

It is unlikely that she experiences a primary psychotic disorder such as schizophrenia. Current symptoms such as fear of harm and auditory hallucinations are more likely the result of being subject to past trauma, as noted above. It is likely that she experienced an episode of Major Depressive Disorder with Psychotic Features after the birth of her second child.

There is no evidence that she has a Personality Disorder.[101]

1. When giving evidence at the hearing and after being taken to Dr Nataraj's report, A/Professor Wijeratne confirmed his view that HZSG did not have schizophrenia or a like illness.
2. In his report A/Professor Wijeratne stated that HZSG's above psychological symptoms appear 'to fluctuate little', and 'there is a degree of treatment resistance of her symptoms which is at least the result of her social isolation and living circumstances.' In his evidence before the hearing, A/Professor Wijeratne explained that the term 'treatment resistance' referred to a person's symptoms not responding to treatment, and the issue for HZSG was more of having 'received very little in the way of active treatment of her symptoms.'[102]
3. He noted that HZSG had 'a broad understanding that she has a mental disorder', but it was unlikely she has 'a full understanding of the causes of her symptoms and how they interact with each other', noting 'a confusing plethora of past psychiatric diagnoses.' [103]
4. When asked to opine upon the 'known and reasonably available treatments/programs' for HZSG's identified impairments, A/Professor Wijeratne advised:

Given the severity and chronicity of her symptoms, HZSG would require intensive and long-term care from both a psychiatrist and a clinical psychologist.

A treatment program delivered by mental health professionals, to target each of the diagnoses above, would consist of both

(i) pharmacotherapy, namely the combination of an antidepressant medication, with possible augmentation by an antipsychotic medication, and

(ii) psychological therapy, both trauma focussed and cognitive behaviour therapy.

Medication strategies that may be considered include increasing the dose of venlafaxine to 150-225mg daily, switching to duloxetine 60-120mg daily or to sertraline 50-100mg daily, and augmenting with aripiprazole 10-15mg daily.[104]

1. A/Professor Wijeratne recommended these treatments for HZSG.[105]
2. In answering specific questions posed by the Agency in its briefing, A/Professor Wijeratne said of HZSG's treatment:
   • HZSG has not been provided with any ongoing treatment program, other than simply continuing a 'low dose' (described by A/Professor Wijeratne as 'sub-optimal') of the anti-depressant Venlafaxine. A/Professor Wijeratne noted that HZSG had undertaken three to four trials of antidepressant medications. He could not be sure of HZSG's adherence with her medications, given her complaint about it causing tiredness, and Dr Alkhalayleh's report that cognitive impairment impedes her medication adherence.
   • Apart from attending a psychologist on a few occasions, there is no evidence that HZSG has received psychological therapy, either trauma focused or cognitive behavioural therapy. A/Professor Wijeratne stated that he did not consider HZSG's diagnoses had been appropriately treated to date.
   • Any non-compliance with treatment would obviously impede HZSG's recovery.[106]
3. The Agency asked A/Professor Wijeratne if he considered HZSG's impairments to be permanent, in the sense that available evidence-based treatment options have been explored and exhausted. He responded:

Notwithstanding the complexity, severity and in particular the duration of her symptoms, the past and current absence of a co-ordinated specialist program of pharmacological and psychological therapy must lead to the conclusion that her impairments are not permanent.[107]

1. A/Professor Wijeratne reiterated this view when giving evidence at the hearing, also stating that he considered that HZSG's impairments in day-to-day activities could be addressed by treating professionals.[108]
2. When asked about whether HZSG could engage in evidence-based treatments for her impairments, based on her presentation and the evidence provided, A/Professor Wijeratne stated:

As a result of past trauma, HZSG has difficulties with trusting and therefore engaging with people which may impede the provision of psychological therapy. However, her engagement with [her accompanying female support worker] does suggest that there is the potential for her to engage with a female, Arabic speaking therapist.

1. When asked if HZSG was likely to engage meaningfully and appropriately in evidence-based treatments and, if not, can any interventions be undertaken to improve HZSG's engagement with treatment, and if HZSG has capacity to undertake these interventions, A/Professor Wijeratne referred to his above answer.[109] He did not consider that further investigations were required to properly assess the permanence of any of HZSG's 'diagnosis'. I note that in this context A/Professor Wijeratne was specifically asked by the Agency to address the permanence of HZSG's 'diagnosis', rather than her impairments.[110]
2. The remainder of A/Professor Wijeratne's report dealt with his views upon HZSG's functional capacity. Therein, he noted his impression that HZSG experiences 'chronic, unremitting symptoms, such that her function is unlikely to vary much from day to day'.[111] Further, that HZSG was 'unable to leave her home independently, and requires a support person to access the community.'[112]
3. In commenting upon HZSG's functional capacity for communication, A/Professor Wijeratne advised:

The main weakness is her very limited ability to speak, read or write in English which is a potential barrier in engaging independently with health and care providers. An interpreter will be necessary in any situation not involving another Arabic speaking person.[113]

1. When asked by the Agency in its briefing questions whether HZSG was able to make and attend appointments independently and if not, why, A/Professor Wijeratne stated:

A note was made by [HZSG's physiotherapy practice] on 18th January 2023 that HZSG contacted their office to state she could not attend her appointment. She responded aggressively when the cancellation policy was explained, and continued to yell when the practice was unable to accommodate her request for an appointment later that day. This vignette indicates her inability to negotiate appointment times independently.

She is not able to travel to appointments independently given agoraphobia.

1. A/Professor Wijeratne gave evidence at the hearing.[114] In his evidence, he noted the mental health conditions he had diagnosed HZSG as having, commenting that major depressive disorder and PTSD were two disorders associated with cognitive difficulties including memory impairment and executive dysfunction, which in turn would impair a person's ability to make decisions and to initiate, to plan and to sequence to complete tasks.[115]
2. A/Professor Wijeratne reiterated his view that HZSG needed comprehensive and ongoing professional assistance with her mental health. As to his recommendations for how this might be delivered, A/Professor Wijeratne described an 'ideal world' treatment package consisting of a 'multidisciplinary mental health team providing psychiatric, psychological, social work and other supports.'
3. Of this treatment, A/Professor Wijeratne explained:

... such teams are certainly available within the [relevant State] public health public mental health system, but I think we're all aware that there are significant resource issues with such services. So in reality, it's unlikely that the kind of presentation that HZSG has would lead to that level of care being delivered by a multidisciplinary mental health care team.

1. He outlined that 'a more pragmatic management plan' would be that she received referrals to a treating psychiatrist and also a clinical psychologist and that is for a combination of pharmacological therapy and psychological therapy.' Different facets of the latter treatment could address HZSG's experience of trauma and, for instance, her OCD symptoms. A/Professor Wijeratne further advised he would augment this plan with treatment from appropriate allied health specialists, such as a physiotherapist, a dietician (given HZSG is relatively malnourished) and an occupational therapist to assist her in learning, or relearning, how to perform daily living tasks.
2. When asked about the availability of this 'more pragmatic' package through a public hospital setting, A/Professor Wijeratne stated it would:

... theoretically be available, with the caveat that resourcing certainly varies from area to area within [the State] and also that her presentation with a depressive disorder and trauma may not take precedence over patients who present with so-called severe mental illness such as schizophrenia or bipolar disorder.

1. A/Professor Wijeratne suggested also that HZSG's General Practitioner could make referrals to the abovementioned practitioners under an NDIS package, or under the Medicare system, with two qualifications. First, a referral to a psychiatrist for the type of mental health care plan contemplated would not be available under Medicare, and secondly, there would be gap fees HZSG would need to pay on top of Medicare rebates.
2. When asked about HZSG's capacity to navigate either the 'ideal' multidisciplinary model or the 'more pragmatic' referral model, advised it would be easier for HZSG to navigate the former model of care, because it was 'a one stop shop' and she would receive coordinated care in that system, while the referral model using multiple private providers would be more fragmented, requiring her general practitioner to oversee and control. A/Professor Wijeratne agreed that under either model, HZSG would require assistance from a support worker to attend appointments and navigate either system.
3. When taken to the evidence about HZSG's sleeping patterns and her possible preference for appointments with treating professionals to take place late in the day, A/Professor Wijeratne noted that people with depressive disorder tend to have a symptom which has the effect of being at their worst in mornings, developing energy and mood improvements later in the day. He noted however that most practitioners tend to close for the day around 5pm. Further, he commented:

But I think the whole point is that she would require the assistance of a support worker to take her to these appointments, whether it's late in the afternoon or whether she needs prompting to go earlier in the day ... that is what's an important use of the support worker.

1. When asked for his recommendations for HZSG accessing services given her language barrier, A/Professor Wijeratne opined that the optimal level of care for HZSG will be received from someone with whom 'she feels comfortable with.' He noted HZSG may be more comfortable with a female practitioner(s), given her history of domestic and family violence as perpetrated by males, although a female support worker could act as a 'chaperone' if the therapist was male. Further, it would not be unreasonable for an interpreter to be present in person or by phone, with the optimal level of care being provided by an Arabic speaking professional.
2. When asked about HZSG's motivation to attend appointments, A/Professor Wijeratne agreed that evidence given by HZSG to the effect that she able to attend the hearing because it was important to her, indicated that she would be motivated to attend or engage if she saw this as important to her, or is she was educated as to the value of doing so. He also gave evidence that:

And it may be that her health literacy is such that she is more open to, for instance, pharmacological medication, whereas she is less familiar with the importance of psychological therapy, which frankly can also carry with it a certain level of distress, for instance, when past traumas are discussed. So that will be an example of something that she would need to be educated about the importance of engaging in.

1. For this educational role, A/Professor Wijeratne suggested a treating psychiatrist would be best 'to pull all that together', with HZSG's general practitioner also able to provide support.
2. When asked if he had concerns about whether HZSG might be 'self-limiting', in terms of her motivation in this context, A/Professor Wijeratne observed:

The main concern would be ... she may well have a sense of hopelessness in that this is someone who on the one hand has experienced these symptoms of depression, obsessive compulsive disorder and post-traumatic stress disorder for a long time and has experienced these symptoms without remission for a long time, so there might be a sense of hopelessness in that she doesn't feel the symptoms will ever resolve.

... obviously hypothesising here, apart from the sense of hopelessness related to the chronic, unremitting nature of the symptoms, I guess the other aspect that we need to be potentially mindful of is the fact that she's essentially lost everything. She has no access to her two children, she has no contact with her father, mother or siblings. That too may bring with it a sense that she has little to get better for.

Finally, the evidence is that she's been the victim of verbal emotional abuse from her family for many years and for instance, I note in my report ... that her family repeatedly called her crazy and incompetent, so I think that would mean it may well be that she internalises her symptoms and disability as her own fault or result of her inability or incompetence.

1. A/Professor Wijeratne summarised this concern in this way:

What we characterise as medical disorders, they [HZSG's family] have characterised as personal failings.

1. Ms Sale is an occupational therapist. In addition to providing her report, she gave evidence at the hearing. Much of her report and her evidence related to HZSG's functional capacity. For the present purposes of considering the permanency or likely permanency of HZSG's impairments, the following evidence of Ms Sale is noted:
   • Ms Sale observed that:

HZSG has not engaged in regular therapy for some years.[116] This seems to be due to a combination of lack of funds and lack of readily available and consistent transport.

HZSG said that her current treatment involves reviews with GP as needed. These are in person. She is transported and accompanied by a support worker.[117]

• Ms Sale's analysis of the medical reports, and her assessment of HZSG indicated that:

[D]ue to the effects of her medical conditions, HZSG experiences difficulties undertaking tasks that involve:

• performing tasks that require a high degree of mental endurance
• performing tasks that require vigilant concentration
• engaging in tasks that require a degree of motivation or drive
• exposure to activities, places or people that expose her to her obsessions
• consistently maintaining an even demeanour when around other people
• attending to complex tasks (unsupported)
• leaving her unit unsupported
• accessing her community unit unsupported
• using public transport
• use of the left arm above head height
• moderate to heavy manual handling involving the left upper limb.[118]

• HZSG would not open the door of her home when Ms Sale attended to undertake her assessment. Contact had to be made with Dr Alkhalayleh, who called and spoke with HZSG. Ms Sale said of HZSG's presentation:

HZSG presented as exceedingly anxious. She stood with her arms folded across her stomach. Her eye contact with poor. She looked down as she spoke. She presented as distrusting of others. There was a degree of irritability. Rapport was difficult to establish. She appeared to keep her distance from myself and the

She declined to sit. Her preference was to stand. She stood several metres away when communicating. She stood for the majority of the 2.5-hour assessment.

She removed herself from the conversation (without warning) at times to go into the bathroom. She appeared to be washing her hands. Her hands were visibly red and raw.[119]

[HZSG] was asleep at my arrival for the assessment and appeared unaware of my role and the reason for the assessment, an indication of her impaired capacity to plan and manage her appointments.[120]

• Despite the cessation of her NDIS support, HZSG continues to receive some support, provided by Dr Alkhalayleh's service. She does not pay for this service. It involves a support worker attending for between four to six hours a day, one day per week. The support worker assists with transport and accompanying HZSG to go shopping for groceries and personal items; meal preparation for the week; taking out rubbish; cleaning; assisting with showering (every few weeks); and washing and drying clothes. The support worker also texts HZSG each day to remind her to take her medication. Dr Alkhalayleh assists HZSG also to coordinate appointments and to liaise with agencies such as Medicare, Centrelink and Housing; to arrange clothing and household items; and to provide support by responding to text messages and calls from HZSG, which can be copious.[121]
• HZSG spoke in Arabic and an interpreter was used during the assessment, with Ms Sale observing HZSG 'had limited understanding of English.'[122]
• Ms Sale commented:

HZSG does not drive. She does not hold a driver's licence. To leave her unit, she is totally dependent on her trusted support workers ... HZSG is unable to utilise public transport. Her restrictions associated with her psychiatric impairments are simply too great.

She is totally dependent on her support workers to transport and accompany her to GP reviews and any specialist appointments, of which she schedules at night to account for her poor day-time sleep routine.[123]

• In the domain of self-management, Ms Sale observed that HZSG had difficulty managing her routines, due to the restrictions associated with her psychiatric impairments. She forgets to take her medication. Ms Sale concluded that HZSG would benefit from formal support with her self-management activities.[124]
• Ms Sale also concluded HZSG:

... requires transport and accompaniment support to leave her unit and access her community. She requires this support to engage in social and community-based activities as well as essential services such as medical and therapy consultations.[125]

... critical in ensuring that HZSG can access all her medical appointments and essential services. The provision of this support will ensure that she attends all her medical appointments, and the risk of missed or avoided appointments is minimised.[126]

• In her report Ms Sale addressed a range of community-based supports and service (outside of the NDIS) that may be available to HZSG. These included the 'Safe and Supported at Home' (SASH) program; Mental Health Community Living Programs; Crisis Assessment and Treatment teams; and the taxi transport subsidy scheme.[127] Under the SASH package, transport and support worker assistance for medical or therapy appointments is available.[128] When giving evidence at the hearing Ms Sale noted the views of A/Professor Wijeratne as to HZSG requiring 'long-term intensive treatment', and commented:

I'm unsure if the typical short duration of the SASH program would be able to accommodate that. That's something that would need to be assessed on an as needs basis.

Ms Sale noted that a SASH package, while designed to provide short term assistance to help somebody improve their level of function so that the degree of care and help needed is no longer required, she was aware of instances where the usual program length of six weeks had been extended to months and in some cases two years.

1. On behalf of HZSG it was contended, broadly, that she meets the access requirements for the NDIS. Further, that the weight of the medical and allied health evidence was that HZSG was unable to live by herself without assistance from a support worker, including to attend medical appointments.[129]

1. The Agency contended that HZSG's psychosocial impairments are not, or are unlikely to be, permanent within the meaning of section 24(1)(b) of the NDIS Act, as also informed by the Access Rules.[130]
2. The Agency referred to case law considering the meaning of the word 'permanent', being the decision of Mortimer J (as her Honour then was) in National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), holding that the correct meaning, in the context of the legislative scheme of the NDIS, was 'enduring'. The Agency also referred to the interpretation of the term 'remedy' in applying Rule 5.4 of the Access Rules.[131] More will be said about the guidance arising from this case below.
3. Noting the evidence that HZSG has been prescribed antidepressant medication, it was contended by the Agency that there is no medical evidence to establish that HZSG's 'conditions have been appropriately treated or have stabilised.'[132] In this respect, the Agency noted the evidence of A/Professor Wijeratne as to the 'suboptimal' dosage of HZSG's antidepressant medication, and his recommendations for HZSG to undergo regular pharmacotherapy and also psychological therapy, focused both on trauma-based and cognitive behavioural therapy.[133] Reliance was placed on A/Professor Wijeratne's evidence as to the availability to HZSG of a range of potential treatment options, with Counsel for the Agency noting also that that as HZSG lived in the largest urban city in Australia and in a large multicultural community, these treatment options were available to her. Counsel for the Agency also noted HZSG's limited engagement, when giving evidence, about her current and historical treatment, submitting that she engages in 'self-limiting' behaviour and makes choices, with the evidence reflecting that HZSG had been able to attend regularly upon her General Practitioner, and also upon Dr Younan to receive medical treatment, when motivated to do so.[134]
4. In its written and oral submissions the Agency addressed Dr Nataraj's report; in particular, the commentary noted above about HZSG receiving treatment in public and private hospitals and trialling multiple medications. The Agency submitted that this report was based on information that was self-reported, including through HZSG's representative. Further, that the report does not disclose what written material was before him in compiling his report; there was no evidence that he had a complete clinical history before him; there was no evidence as to the outcome(s) of his recommendations for HZSG; and that none of these issues could be clarified in the absence of Dr Nataraj attending to give evidence.[135] It is noted that in closing submissions Dr Alkhalayleh advised that HZSG had not attended further upon Dr Nataraj, due to being unable to meet the costs of treatment.[136]
5. I acknowledge the validity of these concerns about the report of Dr Nataraj, save for the submission about the information upon which it is based. The report reflects that HZSG, while limited in her engagement, contributed information throughout the consultation with Dr Nataraj (as opposed to the consultation with Dr de Robillard, as noted above, where HZSG refused to engage). For the reasons below, in reaching my decision on this issue I have not placed any significant reliance on Dr Nataraj's report, beyond noting the general consistency of the medical evidence about HZSG's impairments and future treatment needs.

1. The Agency contends that having regard to the available evidence,

... there is insufficient evidence to establish that the Applicant has explored all known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the psychosocial impairments.

As such, the Tribunal cannot be satisfied that there are no known, available and appropriate evidence-based clinical medical or other treatment that would be likely to remedy the impairment, per r 5.4.[137]

1. In context, the Agency's contention is that HZSG does not satisfy the requirements for permanence in section 24(1)(b), having regard to the application of the Access Rules. This contention is made, in the language of Rule 5.4 of the Access Rules, on the basis that the treatment recommended by A/Professor Wijeratne, which is a combination of appropriate medications and psychological therapies, amounts to 'known, available and appropriate' treatment for HZSG, which is likely to remedy her impairments.
2. As noted, the concept of 'impairment', within section 24 of the NDIS Act, is generally understood 'as involving the loss of or damage to a physical, sensory or mental function.'[138]
3. As also mentioned above, in the decision of Lampard, the Full Court of the Federal Court has recently emphasised the important and fundamental distinction between a disability and impairments in the context of the NDIS, with the term 'disability' used as a broad descriptor for the effect of a person's impairments (to be understood as explained above in Mulligan), on that person's ability to participate in aspects of their personal and community life. In Lampard, the Full Court noted that the focus of sections 24(1)(b) to (d) of the NDIS Act is ' ... upon the permanency and severity of a prospective participant's impairments, not their disability.'[139]
4. The NDIS Act does not define the term 'permanent'. However, the meaning of that term, and also the relevant rules in Part 5 of the Access Rules, have been considered in previous Federal Court decisions, including as noted above by Mortimer J in Davis, and more recently by McEvoy J in Kelly v National Disability Insurance Scheme [2024] FCA 1462 (Kelly). In that latter decision, McEvoy J said the following of Mortimer J's decision in Davis:

In that case Mortimer J rejected an argument advanced by the NDIA that permanent meant "irreversible" or "untreatable" (at [77]). Her Honour instead held (at [85]) that the correct meaning of "permanent" in s 24(1)(b) is "enduring", noting that > > ... This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[140]

5. In Davis, in deciding that the correct meaning of 'permanent' in s 24(1)(b) is 'enduring', Mortimer J further commented about the effect of the adjectival use of 'permanent' to the noun "impairment" in section 24(1):

"The focus of the text, consistently with the purposes of the scheme, is whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme." [141]

6. As noted, Rule 5.4 of the Access Rules provides that an impairment will only be considered permanent if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. In Davis, Mortimer J considered the meaning of the word 'remedy' in Rule 5.4:

In this context, "remedy" should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word "remedy" should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase "permanent impairment", as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured.[142]

1. Kelly dealt with a challenge to the validity of Rule 5.4 of the Access Rules; McEvoy J finding that the Rule was valid.[143] The decision of the Tribunal that was appealed to the Federal Court in Kelly had found that the applicant in that matter had satisfied s.24(1)(a) of the NDIS Act, in that she had a disability attributable to a physical impairment, with the Tribunal then going on to consider section 24(1)(b) and the question of the permanence or likely permanence of that physical impairment. The Tribunal's consideration of the meaning of the word "likely" was as follows:

One key word that appears in the legislation and the rules [that] does not appear to have been addressed in the authorities is 'likely'. The Macquarie Dictionary defines likely as: 'probably or apparently going or destined (to do, be, etc.)'_. Likewise, the Oxford English Dictionary defines the word as '_probable' _in the sense of '_having a high chance of occurring'. Accordingly, where this word plays a role in helping to determine permanence, I consider it to be indicative of probability rather than possibility, and certainly not mere speculation.[144]

1. McEvoy J found that in defining 'likely' by reference to probability, in contradistinction to possibility or mere speculation, the construction adopted by the Tribunal accorded with the ordinary meaning of the word 'likely', and also appropriately reflected the beneficial and remedial nature of the NDIS.[145]
2. The Access Guidelines also help in assessing permanency (footnotes omitted):

We need evidence that you'll likely have your impairment for your whole life.

You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity. Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.

Even when your condition or diagnosis is permanent, we'll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, still being treated, or if there are remaining treatment options.

Generally, we'll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued.

Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.

Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments that are:

• known and available
• appropriate for you and your impairment
• evidence-based - that is, there's proof they are likely to be effective.

The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle. So, for example, conditions such as obesity are unlikely to be found to be permanent.

If you're still undergoing or have recently had treatment, we'll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent.

In some situations, it may be clear your impairment is likely to be permanent while you're still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it's clear you'll have a permanent impairment.

You might still have a permanent impairment, even if its effects may change over time.

For degenerative impairments, or those that get worse over time, we consider them permanent if treatment isn't likely to help or improve the impairment's effects.

1. Accordingly, the primary issue for the Tribunal to determine is, using the language of Rule 5.4 of the Access Rules, whether 'there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment'; being the impairments that HZSG has, arising from her psychosocial disabilities.
2. In this context, the 'availability' to HZSG of potential treatments, given her particular impairments and circumstances, is an important consideration, as I flagged with the Agency's representatives at an early point of the hearing.
3. Mortimer J's consideration of the term 'remedy' in Davis has been set out above. In Davis, Mortimer J also considered the proper construction of the descriptors 'known', 'available' and 'appropriate' in Rule 5.4:

The executive has chosen to use three descriptors, each of which must be given work to do. See Commonwealth v Baume [1905] HCA 11; 2 CLR 405 at 414, Griffith CJ; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71], McHugh, Gummow, Kirby and Hayne JJ; Wilkie v Commonwealth [2017] HCA 40; 263 CLR 487 at [146]; District Council of Streaky Bay v Wilson [2021] FCAFC 181; 287 FCR 538 at [63]. On the application of principles of statutory interpretation to delegated legislation, see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 398; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at [19]; ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 at [28]. See also Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417; Acts Interpretation Act 1901 (Cth) s 46(1); Legislation Act 2003 (Cth) s 13(1).

The chosen descriptors must also be construed consistently with the other language used in this section of the rules, and in r 5.4 in particular, including the requirement that the treatment "would be likely to remedy the impairment".[146]

As a general observation, in my opinion each of the adjectives must be construed as referring to circumstances in Australia. In r 5.4, the word "known" connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment. The word "appropriate" connotes a treatment which has a capacity to "remedy" the impairment and is suitable for the particular individual concerned to undergo. The capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, on their personal circumstances in terms of where they live and who they live with, and who cares for them.

The word "available" should be understood as meaning available to a particular individual. If it were to be construed as meaning "exists in Australia", then it would have little different work to do from the word "known". The Macquarie Dictionary defines "available" as meaning:

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

Assuming as I do the validity of r 5.4, and on the premise any given treatment is "known" and "appropriate" as I have explained those terms, in my opinion the adjective "available" should be understood as directed at what treatments an individual can, in reality, access. Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.

Affordability may not be the only feature of a treatment affecting whether an individual can access a treatment. For example, whether a known and appropriate treatment for an impairment for a person in a remote Aboriginal community in Australia is "available" to that person is likely to involve considerations of whether that treatment can be delivered in that community, or whether a person has to travel to a major city or regional town to receive that treatment. So too the personal circumstances of a person, and the combination of impairments they might have. If a person has severe agoraphobia, but also has an impairment for which there is a known and appropriate treatment that can only accessed at a busy public hospital, a decision-maker may need to consider whether, as a matter of fact, that treatment is "available" to that individual, even if it might be "available" to a person without agoraphobia. [147]

1. Mortimer J also observed that Rule 5.4 (and also Rule 5.6) is exclusionary in nature, and that these rules:

... prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person's impairment will be excluded from meeting the permanency criterion in s 24(1)(b).[148]

1. The Agency contends, in reliance primarily upon the evidence of A/Professor Wijeratne, that the combination of medication and psychological therapy treatments recommended by the A/Professor amount to known, available and appropriate treatment for HZSG, that would be likely to remedy her psychosocial impairments.
2. The medical and allied health evidence set out above reflects that HZSG has been taking an antidepressant medication for some time, and more recently, as prescribed by Dr Nataraj, an antipsychotic medication. A/Professor Wijeratne has expressed his view that HZSG's medication regime is sub-optimal, in terms of the dosage prescribed, which partly explains the lack of efficacy of this form of treatment. The evidence also reflects some difficulty on the part of HZSG in complying with her medication regime, with some degree of reliance being placed on her current support worker providing daily reminders, by text or calls, for HZSG to take her medication. It is clear however that the weight of the medical evidence supports the view expressed by A/Professor Wijeratne, that an appropriate pharmacological regime, 'namely the combination of an antidepressant medication, with possible augmentation by an antipsychotic medication',[149] is an integral component of a treatment program for HZSG.
3. The other arm of the treatment program recommended by A/Professor Wijeratne is psychological therapy, in the form of both trauma-focussed therapy and cognitive behavioural therapy. The evidence noted above reflects the limited engagement that HZSG has had with treating professionals to date to address her psychosocial impairments, beyond her regular consultations with her general practitioner. I note that Dr Matter had sought over an extended period to refer HZSG for psychological support, to which she was apparently resistant, although she did eventually attend upon Dr Younan (a psychiatrist) on three occasions in 2020.
4. A/Professor Wijeratne considered that given the severity and chronicity of HZSG's psychosocial impairments, intensive and long-term care from both a psychiatrist and a clinical psychologist was required.[150]
5. The treatment program recommended by A/Professor Wijeratne is consistent with past and recommended treatments provided to HZSG, as reflected in the evidence noted above; for example, the report of Dr de Robillard. It was also accepted by Dr Alkhalayleh (on behalf of HZSG) throughout the review that these forms of treatment are needed by HZSG to address her psychosocial impairments.
6. As such, I am satisfied that the medication and psychological therapy treatments recommended by A/Professor Wijeratne are clearly evidence-based clinical or medical treatments that are 'known', and also potentially 'appropriate' treatments for HZSG's impairments, in the sense that they are suitable treatments for HZSG to undergo for her psychosocial impairments.
7. I am also satisfied that these treatment options have not been undertaken effectively by HZSG to date.
8. I turn now to consider whether these treatments are 'available' for HZSG, given her psychosocial impairments and her particular circumstances.
9. As can be seen from the above passages from Davis, Mortimer J considered that the adjective 'available' should be understood as directed at what treatments an individual can, in reality, access. Further, that the personal circumstances of a person, and the combination of impairments they may have, are relevant considerations in deciding whether a treatment is in fact 'available' for that person. Indeed, Mortimer J's example of the person with severe agoraphobia having an impairment for which treatment can only be accessed at a busy public hospital is in some respects closely reflective of the situation of HZSG and the considerations I need to address here.
10. I have concluded, having regard to the relevant evidence about HZSG's personal circumstances and her combination of psychosocial impairments, that the treatment recommended by A/Professor Wijeratne is not in fact treatment that is 'available' to HZSG. I am so satisfied having regard to the following considerations.
11. First, while there have been differing diagnoses arrived at over the years for HZSG's underling psychosocial conditions, I accept A/Professor Wijeratne's evidence that HZSG's current diagnoses are major depressive disorder, OCD, panic disorder with agoraphobia and PTSD. Further, there is no dispute on the available medical evidence that HZSG's presentation is complex in nature, and that her psychosocial impairments are severe and chronic, and do not fluctuate significantly on a day-to-day basis. While HZSG has some understanding that she has mental health issues, I accept A/Professor Wijeratne's view that it is unlikely that she has a full understanding of the causes of her symptoms and how these interact with each other.
12. HZSG's specific impairments to which her psychosocial disability is attributable have been listed above. They include heightened levels of anxiety and panic; depressed mood; severe social withdrawal and social isolation; distrust of others; compulsive behaviours (driven by her fear of germs and contamination); avoidance behaviours; paranoid delusions and auditory hallucinations; irritability; poor sleep and resulting fatigue and tiredness; and low levels of motivation and ability to achieve objectives. Much of the evidence noted above reflects how these impairments have impacted upon HZSG's receipt of treatment, over a period of years.
13. Treatment to date for HZSG has not been effective in addressing her psychosocial impairments, to the point of producing any significant improvements for her. It is acknowledged that this result is placed in the context of the evidence as to HZSG's participation in and compliance with prescribed and recommended treatments being scant in some regards, such as her attendance to receive treatment from psychologists and/or psychiatrists, and/or uncertain in others, such as her compliance with prescribed medication regimes.
14. I note also A/Professor Wijeratne's view that HZSG's medication regime has been sub-optimal. While the evidence reflects that a number of medications have been trialled for HZSG over the years, the results of these trials are unclear, leaving HZSG in a position where her medication has not been prescribed at a therapeutic dose, according to A/Professor Wijeratne. The overall picture one is left with from the current state of the evidence is that HZSG's medication treatment has not been co-ordinated and monitored in a particularly effective way to date; and her compliance in taking prescribed medication cannot be established. I accept A/Professor Wijeratne's conclusion that this aspect of her treatment has been 'sub-optimal.'
15. I am satisfied that HZSG's capacity to participate in the treatments that have previously been recommended for her has been significantly and adversely impacted by the psychosocial impairments noted above and also her particular circumstances, and that these factors have been major operative causes as to why her past treatment has not been effective. In this regard, in addition to what I have said above about HZSG's medication treatment, I note the following evidence as relevant to her receiving psychological therapy treatment:
    • While HZSG has regularly attended upon her general practitioners, to do so she has been accompanied by a support worker. I accept A/Professor Wijeratne's view, supported by other evidence, that HZSG is unable to travel independently to appointments because of her agoraphobia. I do not accept the Agency's submissions that HZSG is self-limiting in her behaviours in this context. I do accept that there is some motivation on the part of HZSG to attend appointments seen as 'important' for her, such as the cited examples of attending upon her general practitioners and attending parts of this hearing. However, the evidence as to the steps taken by others to facilitate and support such attendances by HZSG cannot be disregarded. That evidence reflects that HZSG has only so attended when specific support is provided to assist in arranging her attendance and accompanying her to ensure that attendance.
    • Further, I note that the evidence reflects that outside the support currently been provided on what seems to be a pro bono basis by Dr Alkhalayleh's service, HZSG currently leads a life of isolation and has no network whatsoever of informal supports, such as family or friends, to assist her in undertaking the tasks involved in arranging and accessing treatment. The evidence about that assistance also establishes that at the present time, accompaniment of HZSG to access the community is limited to outings for shopping for groceries and personal items, and not to attend medical appointments.
    • HZSG has been resistant to date to follow repeated recommendations from her general practitioner, Dr Matter, to refer her to a psychologist. She saw Dr Di Silva in 2019, but it is unclear as to her attendances upon Dr Di Silva after her NDIS application was made. Her attendances upon Dr Younan in 2020 were limited. Dr Alkhalayleh confirmed that she has not attended upon Dr Nataraj beyond the initial 2024 consultation.
    • The barriers arising from HZSG's limited command of English and need for an Arabic-speaking practitioner, or the attendance of an interpreter, and the impacts of her PTSD in terms of her needing to build trust to engage effectively with any practitioner. While the Agency's Counsel made some submissions in her closing address about HZSG's ability to understand English, I am not satisfied, having observed HZSG give her evidence and having regard to the evidence set out already about the situations where she requires an interpreter, that HZSG's English is at a level where she would be able to engage effectively with medical practitioners and particularly to understand complex medical issues and instructions relating to her impairments, without interpretation in Arabic.
16. I am satisfied that all of these factors will also operate to adversely impact HZSG's capacity to receive future treatment of the types recommended, in the context of the 'availability' of those treatments to HZSG.
17. A/Professor Wijeratne has outlined, in his treatment recommendations, two methods through which a person might access the combination of treatments he has suggested.
18. The first, or the ideal option, is through a multidisciplinary mental health team. It was not suggested at any point in the review that HZSG has the means to access these services outside of the public health system. A/Professor Wijeratne has outlined that in reality, it is unlikely that HZSG, with her presentation, would be able to access this support through the public health system. Added to this outcome are the above factors that will impact on HZSG's ability to navigate supports that are provided through the public health system, particularly the recognition, as noted in the evidence of both A/Professor Wijeratne and Ms Sale, that because of her psychosocial impairments HZSG cannot leave her home to attend appointments without being supported.
19. The second modality outlined by A/Professor Wijeratne through which HZSG might receive the combination of treatment that she needs for her psychosocial impairments is through a coordinated referral model. A/Professor Wijeratne saw this model as 'more pragmatic' although he expressed reservations that HZSG again might not be able to receive it through the public health system, given resourcing constraints and the likely precedence that would be given to more acute presentations.
20. In light of those reservations, A/Professor Wijeratne suggested that ideally services under this model would be coordinated by a psychiatrist, although HZSG's General Practitioner could make referrals to relevant practitioners, subject to the two qualifications noted above. A/Professor Wijeratne also noted that services under this model, using multiple private providers, would be more fragmented.
21. As explained above, previous attempts to refer HZSG to providers of psychiatric and psychological services have not resulted in HZSG engaging with such providers on a sustained basis, such as might produce improvements in her psychosocial impairments.
22. As noted, A/Professor Wijeratne agreed that under either model of service delivery, HZSG would require assistance from a support worker to attend appointments and navigate either system. Implicit in that conclusion is a view that without such assistance, these services are not available ones for HZSG. I also note Ms Sale's evidence that HZSG is dependent on support worker assistance to leave her unit; that she cannot do this independently and has not attempted to do so since 2018, and is 'totally dependent' on her support workers to transport and accompany her to GP reviews and any specialist appointments.[151]
23. I am not satisfied that the SASH program is a means through which the treatment recommended by A/Professor Wijeratne might become 'available' to HZSG. While a SASH package may include transport and support worker assistance to attend medical and therapy appointments, the evidence of Ms Sale was the availability of SASH packages was limited to six weeks, although packages can be repeated. Given the long-term nature of the treatment recommended by A/Professor Wijeratne; the complex nature of HZSG's psychosocial impairments (including her paranoia, distrust of others and fear of contamination and germs) and the other barriers identified above to her previously accessing treatment, I am not persuaded that this program could operate as a means through which the relevant treatment could be accessed by HZSG, on the sustained basis that is needed. In this regard, I am mindful of Ms Sale's evidence at the hearing that while she considered that a SASH package was suitable for HZSG (subject to the undertaking of an individualised assessment), she was concerned, given A/Professor Wijeratne's recommendations, that HZSG requires long-term and intensive treatment, and she was unsure 'if the typical short duration of the SASH program would be able to accommodate that.'[152]
24. For these reasons, I am satisfied that the treatment recommended by A/Professor Wijeratne is not 'available' treatment for HZSG, given her psychosocial impairments and her particular circumstances. That treatment may be 'available' to other persons. That is not the test. The treatment recommended, whether sought through either model of delivery as outlined by A/Professor Wijeratne, cannot be accessed by HZSG as a matter of practical reality, because of her psychosocial impairments and her personal circumstances.
25. Accordingly, I find that Rule 5.4 is not of application so as to exclude HZSG's impairments from meeting the permanency criterion in section 24(1)(b).
26. Finally, as noted above, in response to a specific question posed by the Agency, A/Professor Wijeratne opined that no further investigations were necessary to properly assess the permanence of any of HZSG's diagnoses. While A/Professor Wijeratne concluded that HZSG's psychosocial impairments (as opposed to her diagnoses) were not permanent, this was on the basis of the past and current absence of a coordinated program of specialist treatment aimed at treating those impairments. It was not suggested that such treatment was needed as a form of investigation and review, to determine the permanence of those impairments, and the Agency did not contend during the review that Rule 5.6 of the Access Rules was of application in determining whether HZSG met the requirements of section 24(1)(b) of the NDIS Act.
27. For these reasons, I find that HZSG satisfies the requirements of section 24(1)(b) of the NDIS Act regarding the permanence of her psychosocial impairments.

Section 24(1)(c) - substantially reduced functional capacity

1. Next, it is necessary to consider if HZSG's impairments result in substantially reduced functional capacity to undertake one or more of the activities listed in subparagraphs (i) to (vi) of section 24(1)(c) of the NDIS Act; namely (i) communication; (ii) social interaction; (iii) learning; (iv) mobility; (v) self-care; and (vi) self-management.
2. Those activities (also referred to as 'domains') are not defined in the NDIS Act, nor in Rule 5.8 of the Access Rules (as set out above). However, the Access Guidelines provide some assistance in determining when an impairment results in substantially reduced functional capacity (footnotes omitted):[153]

Does your impairment substantially reduce your functional capacity?

Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:

• Communicating - how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.

• Socialising - how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.

• Learning - how you learn, understand and remember new things, and practise and use new skills.

• Mobility, or moving around - how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.

• Self-care - personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.

• Self-management (if older than 6) - how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.

Your impairment substantially reduces your functional capacity if you usually need disability specific supports to participate in or complete the above tasks.

• a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
• assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.

To help us decide if you're eligible, we need to know your capacity and where you need more help. We get this information from you when you apply to the NDIS.

If you have more than one permanent impairment, we will consider them together, to see if they substantially reduce your functional capacity.

We consider how you're involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day-to-day life.

Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.

1. Evidence about HZSG's functional capacity was provided in the various reports compiled by the occupational therapy witnesses, being Ms Beary, Mr Berger and Ms Sale. HZSG and also Dr Alkhalayleh also gave evidence, and some of the medical witnesses, such as A/Professor Wijeratne, expressed views about how HZSG's psychosocial impairments impact upon her functioning. Some of this evidence has been noted above.
2. Of the occupational therapy reports provided in evidence, I note that Ms Beary's report was prepared in 2019. The report discloses that it was prepared for HZSG's NDIS access request and the conclusions expressed by Ms Beary advocate for significant funding and supports; for example, 60 hours of support per week for activities of daily living.
3. Mr Berger's reports and evidence were the subject of specific and critical submissions by Counsel for the Agency in her closing address. Essentially, Counsel submitted that the Tribunal should attach no weight to his evidence. Mr Berger, in cross-examination, advised that he was 'not exactly' familiar with the Tribunal's Practice Direction about expert evidence,[154] and the obligation contained therein as to the overriding duty of expert witnesses to provide impartial assistance to the Tribunal.[155] In fairness I note in this context Mr Berger's evidence that this review was the first occasion on which he had given evidence in a Tribunal or similar setting.
4. Additionally, Counsel for the Agency submitted that Mr Berger's reports did not address the information available to him upon which he based his conclusions, and that he did not address this deficiency during his oral evidence, despite being afforded opportunities to do so. Further, that his reports contained assertions that were not supported by adequate reasoning or reference to the underlying facts.
5. These submissions have substance. Much of the tone of Mr Berger's reports was in the nature of advocacy for HZSG and articulation of the types and levels of supports she should receive. I accept the submission of the Agency that he struggled to adequately explain the basis for some of his conclusions about the extent of HZSG's support needs, such as his conclusion that HZSG requires 125 hours of support each week.[156]
6. However, in determining whether HZSG meets the requirements regarding substantially reduced functional capacity in one or more of the six relevant domains, I have not found it necessary to rely on the specific opinions of either Ms Beary or Mr Berger, beyond noting the historical information contained within their reports about HZSG's functional capacity as being broadly consistent with that recorded by Ms Sale. Rather, my views are principally informed by the evidence of Ms Sale, who provided her report and oral evidence on an independent basis.
7. Additionally, I note that the Access Request forms completed by Dr Di Silva and Dr Matter contained information about their respective assessments of the assistance required by HZSG in the relevant domains. Given the brief and dated nature of that information, I have not placed any particular reliance on it in reaching my views about HZSG's functional capacity.

1. Some aspects of Ms Sale's report and her evidence at the hearing have been set out earlier in this decision, and I will not repeat all of those aspects here. In undertaking her functional assessment of HZSG, Ms Sale reached the following conclusions.
2. Communication: Ms Sale acknowledged HZSG's limited understanding of English and some challenges experienced in communicating with HZSG during her assessment, and the references in the medical material briefed to her about how HZSG's irritability and anxiety can impact her communication. Ms Sale concluded that:

HZSJ is 'independent with her basic day to day communication needs. She does not require formal support worker assistance in this domain.

Ms Sale made some recommendations to improve and maximise HZSG's functional capacity in this domain, being input from a psychologist to provide support and education to improve her communication skills and address barriers.[157]

1. Social interaction: Ms Sale noted that HZSG has no friends and is not in a relationship; is significantly socially isolated, rarely leaving her unit and when she does it is with the accompaniment of a support worker; is highly distrusting of others; and is completely withdrawn from the Arabic community. Ms Sale reported that HZSG communicated by phone 'every few weeks' with her mother. This report can be contrasted with other reports noted above for example, by A/Professor Wijeratne, as to HZSG's estrangement from all members of her family. However, I accept that it would not be surprising for the extent of such relationships to fluctuate over time. The conclusion that can be drawn from the evidence is that, at the least, HZSG is estranged from her children and most members of her own family, and what contact she may have with her mother is limited. In any event, as explained below, engagement with family members is not a key issue in considering a prospective participant's functional capacity in regard to the tasks comprising this domain.

To improve and maximise HZSJ's functional capacity in this domain, Ms Sale recommended HZSG be provided with supports, in the form of transport and accompaniment support to meaningful and well-suited activities within her community, and professional supports (such as an occupational therapist or social worker) to help HZSG engage with local community based social groups and activities. It is noted that HZSG expressed interest in engaging with a particular support group for Muslim women in her community.[158]

Ms Sale concluded that HZSG 'has significant restrictions in this domain,' noting HZSG has 'significant difficulties leaving her unit, accessing her community and engaging in social activities due to her psychiatric impairments ... '[159] Ms Sale also noted that the support services recommended by her 'are critical in increasing HZSG's level of socialisation, face-to-face interaction and exposure to the community'.[160]

1. Learning: It was noted by Ms Sale that due to her psychosocial impairments and the associated restrictions HZSG has diminished interest in new learning activities, not being engaged in any study, and having no interests and hobbies (beyond watching some shows on YouTube). Her exposure to new learning tasks was reduced due to her limited engagement in societal activities and daily routines. Ms Sale noted the opinions of A/Professor Wijeratne and Dr de Robillard about the impact of HZSG's psychosocial impairments upon a formal assessment of her learning functionality. Given HZSG's lack of current engagement or desire to engage in any formal learning activities, Ms Sale did not recommend any formal support in this domain.[161]
2. Mobility: HZSG was observed by Ms Sale to mobilise without aids, and to access all areas of her unit. While Ms Sale considered HZSG to have no physical restrictions in this domain, limitations upon HZSG's mobility arising from her anxiety and other psychosocial impairments were noted, such as her need for accompaniment to leave her unit, and her inability to use public transport. Ms Sale noted that aside from shopping each week, HZSG 'is otherwise confined to her small 2-bedroom unit due to significant fear, paranoia and anxieties leaving her unit.'[162]

Ms Sale recommended supports in the form of transport and accompaniment of HZSG for all medical reviews and essential services; psychological intervention and occupational therapy engagement, to help improve and maximise HZSG's functional mobility in the context of her difficulties in leaving her home and accessing the community.[163] As noted above, Ms Sale considered the support services recommended by her to be critical in ensuring HZSG can access all of her medical appointments and essential services.[164]

1. Self-care: Ms Sale assessed that while HZSG was able to independently undertake some of the activities in this domain, such as toileting and dressing, she required support, including physical assistance, to undertake several activities. Ms Sale noted HZSG's obsessive handwashing. She also noted that while HZSG was able to transfer in and out of the shower, she reported showering infrequently, every two weeks and even longer in winter, due to impaired motivation and disinterest. HZSG also reported that she brushes her teeth excessively, spending up to two hours some days doing this, and causing her gums and teeth to bleed frequently.

Ms Sale commented that HZSG experienced 'considerable difficulties' with meal preparation and access to a nutritious diet, noting that HZSG reported that she:

• Eats very little due to reduced appetite, low energy, impaired motivation and persistent low and depressed mood.
• Is disinterested in food and cooking, last preparing a home cooked meal in 2018.
• Is heavily dependent on her support worker to take her shopping, and when time allows, to prepare food for her. If her support worker is not around (6 days each week) HZSG will mostly eat packaged food.

Ms Sale observed that there were very limited food items in HZSG's fridge or kitchen at the time she conducted her assessment (some boxes of tea, one avocado, a pack of six eggs and a packet of Jatz biscuits) noting '[H]er cupboards were either completely empty or filled with cleaning products. The pantry was empty.'

In addressing domestic activities, Ms Sale observed that HZSG does little cleaning of her unit, beyond her obsessive use of single-use wipes on benchtops and touched items. Ms Sale observed there were piles of wipes and tissues scattered throughout the unit (her report contained photographs reflecting this), and several bags of rubbish outside the door (apparently awaiting the support worker to take these to the unit bins area). Ms Sale also noted that HZSG depends on her support worker to wash her clothes. Again, this is because of lack of motivation and fatigue.

HZSG said that bed sheets are changed by her support workers, every few weeks. She said she uses a plastic mat over her mattress as she is fearful of mould developing on the mattress and sheets. She sleeps on top of her quilt and blankets (rather than underneath) for fear of contaminating the bed sheets. She places tissues around her head to avoid touching the blanket. She worries about germs (from her scalp) on the blankets.

• Formal support with routine cleaning, laundry and bed linen changes.;
• Assistance from a support worker to help with the planning, preparation and cooking of meals in bulk that could be frozen and re-heated, to ensure HZSG has regular access to nutritious meals.
• Assistance from a support worker with in-person shopping.
• Prompting to manage and oversee attendance to personal care tasks (showering, changing of clothes, teeth brushing etc.).
• Referral to a psychiatrist or clinical psychologist for the management of her psychosocial impairments.
• Engagement from an occupational therapist specialising in mental health to improve HZSG's living skills.
• The provision of some aids and equipment - these items were identified later in Ms Sale's report[165] as a digital alarm clock (to be used to set alarms to take medication); a robotic vacuum for cleaning; and a hair washing device.[166]

Ms Sale was of the opinion that HZSG has 'considerable difficulties' with attending to 'nearly all her self-care tasks', with her limitations arising from her psychosocial impairments. Further, Ms Sale stated in her report that:

HZSG frequently neglects, avoids or attends to self-care activities at an inappropriate level (i.e. handwashing and teeth brushing) due to her psychiatric impairments and resulting restrictions.

She requires professional support and services to ensure consistent and appropriate attendance to her self-care tasks.[167]

In responding to a specific question posed by the Agency in briefing her, Ms Sale advised that HZSG could not, in Ms Sale's opinion, increase her functional capacity for self-care with the use of commonly used items, strategies, modifications to the way that she undertakes tasks, pacing and/or planning of her day/week, because the restrictions arising from her psychosocial disability are too great.[168]

1. Self-management: Ms Sale noted that HZSG 'seems capable' of solving basic problems, such as a need to contact her housing provider to repair the hot-water system in her home. For more complex tasks, Ms Sale assessed that HZSG has difficulties in planning, organising and managing her routines, due to her impairments. This is evidenced through HZSG having trouble paying her bills on time, leading to outstanding debts. A support worker has assisted her to set up some payment plans; for example, with her electricity provider. Further, as noted above, HZSG forgets to take her medication and, in Ms Sale's view, requires help to do this. Ms Sale considered that HZSG would benefit from formal support to assist, manage and co-ordinate her self-management activities, and provision of some equipment, as already noted:

[HZSG] requires input and assistance with any decision-making and problem-solving tasks beyond that of a basic level of complexity.[169]

Further, Ms Sale commented that 'in the absence of this support tasks are left unattended and appointments mismanaged.'[170] Ms Sale considered that HZSG's 'insight into making appropriate decisions is compromised and impaired due to her psychiatric restrictions.' [171]

1. Ms Sale made some recommendations for the quantum of support worker and domestic assistance required by HZSG. Additionally, she stated that she observed no major inconsistencies between HZSG's self-reported functional capacity and the views Ms Sale herself formed about HZSG's functional capacity in each of the six domains addressed above.[172]

1. On behalf of HZSG it was contended that her functional capacity was such that it was substantially reduced in at least a number of activities. This was primarily evident through submissions as to the types of supports required by HZSG for her 'daily functioning, safeguarding her physical and mental health, and enabling her to participate meaningfully in the community.'[173]
2. It is to be noted that the determination of the types of supports a person should receive through the NDIS is guided by an entirely separate aspect of the NDIS legislative scheme, and is only relevant after a person has been found to be a participant; to focus on supports at this time may distract from the task of assessing whether an applicant meets the access requirements for the NDIS.[174]
3. In view of the submissions made on behalf of HZSG and the evidence given by HZSG and also Dr Alkhalayleh, I have proceeded on the basis that HZSG's case is that her functional capacity is substantially reduced in each of the six domains.

1. In framing its written contentions in its SFIC, the Agency relied on Ms Sale's report. The Agency contended that HZSG did not have a substantially reduced functional capacity in any of the six domains. I will deal with the Agency's submissions about those domains in the same order as set out above.
2. Noting Ms Sale's evidence that HZSG was independent in her basic communication and does not require formal support worker assistance, the Agency contended that the psychological support recommended by Ms Sale was best met through mainstream (i.e. health system) services, and that HZSG does not have a substantially reduced functional capacity in this domain.[175]
3. Turning to social interaction, the Agency noted Ms Sale's assessment of HZSG's inability to leave her unit without support, and the great impact of this upon her capacity to meet people and form new friendships. Ms Sale's evidence about HZSG demonstrating a level of irritability, but being able to independently communicate her basic needs was also noted, with the Agency submitting that HZSG does not have a substantially reduced functional capacity in this domain.[176]
4. For learning, the Agency noted Ms Sale's observations regarding HZSG not engaging in formal study, nor having any interest to do so, and Ms Sale's conclusion that while there is a reduction in this domain, no formal support was recommended, contending that HZSG does not have a substantially reduced functional capacity in this domain.[177]
5. On the issue of HZSG's mobility, the Agency submitted:

The threshold requirements to achieve functional capacity in relation to activities of mobility are "relatively modest"; a person has functional capacity if they can, for example, move about their home, get in and out of beds and chairs, leave home, and mobilise in the community.[178]

1. Noting Ms Sale's evidence about how HZSG was able to mobilise about her home, the Agency submitted that HZSG did not have a substantially reduced functional capacity in this domain.[179]
2. Turning to self-care, the Agency noted Ms Sale's evidence about HZSG's dependence upon support workers for cooked meals and cleaning of her home, and Ms Sale's conclusion that HZSG has considerable difficulties managing her self-care activities. Further, the Agency noted that there does not appear to have been follow-up by HZSG's general practitioner in respect of referrals for psychological assistance, and that it was unclear what support services HZSG has received aside form grocery shopping, cleaning and some prompting with certain aspects of self-care.
3. It was contended that HZSG does not have a substantially reduced functional capacity in this domain.[180]
4. When taken specifically by the Tribunal during closing addresses to Ms Sale's evidence about the 'considerable difficulties' experienced by HZSG in managing her self-care activities, Counsel for the Agency submitted that Ms Sale's report was 'just one part of the factual matrix' and that having heard HZSG's evidence, the Tribunal could draw conclusions about her self-limiting behaviour.[181]
5. In the domain of self-management, Ms Sale's evidence about the troubles HZSG experiences in paying bills was noted by the Agency. It was submitted that while HZSG has some limitations in this domain, there are treatments available to her which she has declined to engage with. Further, HZSG's behaviour in calling Dr Alkhalayleh up to twenty times per day to express her needs 'indicates the Applicant has planning abilities and is able to operate a phone without assistance.'[182] The Agency contended that HZSG does not have a substantially reduced functional capacity in this domain.[183]
6. Finally, by way of general submissions going to this requirement, in its SFIC the Agency contrasted the assessments of Mr Berger and Ms Sale as to HZSG's functional capacity and the levels of support recommended. Further, the Agency submitted:

While the Applicant's level of functioning, particularly with respect to accessing the community, suggests a reduction in functional capacity, the Applicant appears otherwise capable of functioning across each of the domains. While aspects of her self-care and attending to household tasks are obsessive, these are matters which might be addressed by the combination of psychological therapy and pharmacology recommended by A/Professor Wijeratne to be provided by the mainstream medical system. The Respondent's view is that the high threshold of substantially reduced functional capacity is not met in any of the domains.

Noting that the Applicant's impairments as a result of her diagnosed medical condition cannot be said to be permanent, the Respondent is of the view that a finding of substantially reduced functional capacity (s24(1)(c)) is not open on the evidence. This is due to fact that all available and appropriate treatments have not been trialled by the Applicant, therefore it is impossible to determine the severity of the reduction in the Applicant's functional capacity.[184]

1. As noted above, I have found HZSG's psychosocial impairments to be permanent, and hence will consider those impairments in determining HZSG's resulting functional capacity.

1. Rule 5.8 of the Access Rules has been set out above. In Mulligan, Mortimer J explained the operation of Rule 5.8:

Rule 5.8 of the Rules defines the circumstances in which a person must be taken to have "substantially reduced functional capacity" for the purposes of s 24(1)(c) of the Act.

Rule 5.8 operates expressly by reference to each of the activities in s 24(1)(c)(i) to (vi). It requires the decision-maker to look, as a matter of factual assessment, at the outcome or effect of a person's impairment on the performance of each, and any, of those six activities. If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates_.[185]_

1. Further, Mortimer J noted in relation to the Tribunal's statutory task of considering whether a person's functional capacity is substantially reduced in any of the relevant six activities, that Rule 5.8 does not exhaustively define the concept of "substantially reduced functional capacity":

I note that the Tribunal appears to have approached the concept of "substantially reduced functional capacity" in s.24(1)(c) as if it is exhaustively defined by r 5.8. That is not necessarily the case. As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the meaning of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person's functional capacity is substantially reduced in any of the six specified areas.[186]

1. As such, my task in assessing HZSG's functional capacity is effectively two-fold. The first is to consider whether her circumstances are included within the deeming effect of Rule 5.8. Should Rule 5.8 not be enlivened, I must still proceed to determine whether HZSG's functional capacity in any of the six activities is substantially reduced.
2. There are three subparagraphs in Rule 5.8. They operate as alternatives. Subparagraph (a) of Rule 5.8(a) requires an assessment as to whether HZSG is unable to participate 'effectively or completely', or to perform tasks or actions required to undertake or participate effectively or completely in one or more of the relevant activities, without assistive technology, equipment (other than commonly used items), or home modifications.
3. Alternatively, Rule 5.8(b) addresses whether HZSG usually requires assistance from other people to participate in the activity, or to perform tasks or actions required to undertake or participate in the activity. Finally, Rule 5.8(c) addresses whether HZSG 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.
4. In Foster, the Full Court of the Federal Court considered the proper construction of the words 'effectively or completely' in Rule 5.8(a), concluding that a person will not necessarily be deemed to have a substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.[187]
5. Further, in Mulligan, Mortimer J said the following about the operation of section 24(1)(c) of the Act:

[55] Using the concept of impairment enables assessment of the severity and permanency of a person's condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted. > > [56] That being the case, no arbitrary limits are placed on access to the NDIS. No decision-maker need be satisfied a person's impairment is "serious", or more serious than another person's. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.[188]

6. In the context of how section 24(1)(c) is to operate, a subjective comparison between what a person could do before the onset of their disability and their function currently is 'not the appropriate yardstick'.[189] The Tribunal must also distinguish between what the person does not do, as opposed to what they cannot do.[190]
7. I will deal first with the deeming provisions of Rule 5.8 and whether they are of application to HZSG's circumstances.
8. Turning first to Rule 5.8(a), the terms 'assistive technology' and 'equipment' are not defined in the NDIS Rules. However, the NDIS has issued an 'Assistive Technology' Operational Guideline, which provides:

The World Health Organisation has a universal definition of assistive technology.

Assistive technology is equipment or devices that help you do things you can't do because of your disability. Assistive technology may also help you do something more easily or safely. Assistive technology will reduce your need for other supports over time.

This could be small things like non-slip mats, or special knives and forks. It could be big things like wheelchairs and powered adjustable beds. It also could be technology like an app to help you speak to other people if you have a speech impairment.

Not all equipment or technology you use is assistive technology. Many people use some equipment as part of their lives, for example, a radio to listen to music, or a standard microwave oven to cook food.

Assistive technology is only the equipment you need because it helps you do things that you normally can't do because of your disability.[191]

1. The evidence is that HZSG does not currently use any assistive technology or equipment to undertake or participate in any relevant activities. As noted, Ms Sale has made a recommendation about the use of some items of assistive equipment that, in her opinion, will maximise HZSG's safety and independence in performing daily living activities. Three such items were suggested, being a large digital clock that could be used to set alarms for tasks (such as taking medication); a robotic vacuum, to boost engagement in routine cleaning duties; and a hair washer, to boost independence. It is to be noted that the last item is recommended on the basis of Ms Sale's assessment that HZSG's difficulties in undertaking the washing of her own hair arise from left upper limb pain, rather than her psychosocial impairments. Ms Sale assessed that the clock and hair washing aid were 'needed' by HZSG, and the vacuum would be of 'benefit.'[192]
2. Further, Ms Sale advised that all three items were easily accessible (that is, could be sourced from local providers such as a chemist, rather than requiring formal assessment and provision through a specialist provider), and did not require 'complex set-up and instruction' (such as a demonstration by a professional). Ms Sale also provided costings, which ranged from $45 to $850 across the three items recommended.[193]
3. The term 'commonly used items' as it is used in Rule 5.8(a) was considered by the Tribunal in Rooney and National Disability Insurance Agency,__[194] where the Tribunal identified the following indicators as to whether items of assistive technology should be considered to be 'commonly used items'; being where they were generally accessible; can be used without the need for complex or specialised customisation or installation; are relatively simple to use; and are relatively inexpensive.[195] All of the assistive items recommended by Ms Sale have these indicators and I am satisfied they can properly be described as 'commonly used items.'
4. Ms Sale did not find any present requirement for major home modifications to be undertaken, based on HZSG's demonstrated functional capacity during her assessment.[196]
5. For these reasons, I am satisfied that Rule 5.8(a) is not of application to HZSG's circumstances.
6. The second paragraph of Rule 5.8 is of more potential relevance to HZSG. HZSG will be deemed to meet this requirement if I am satisfied that she usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in one of the six activities specified in section 24(1)(c), or to perform tasks or actions required to undertake or participate in the activity. In this context, the Access Guidelines provide that a person's impairment will substantially reduce their functional capacity if they usually need 'disability-specific supports' to participate in or complete tasks in the six domains. These 'disability-specific supports' are expressed to include, in addition to assistive technology and home modifications (as dealt with above), a 'high level of support from other people.'
7. The evidence noted above about HZSG's functional capacity and the reductions arising due to her psychosocial impairments details the assistance that she requires in relation to her participation in, or completion of, tasks and activities in all domains, with the exception of the domain of learning.
8. In that regard, I accept the evidence of A/Professor Wijeratne that HZSG is likely to experience cognitive impairment because of her psychosocial disability, which may include difficulties with learning.[197] However, given the limited state of the evidence about HZSG's functional capacity, due to her currently not been engaged in any study or other learning activities, I am not satisfied that there is sufficient evidence to support any finding that HZSG experiences substantially reduced functional capacity in the domain of learning.
9. I also note that Ms Sale has assessed that HZSG is independent in the domain of communication.
10. For these reasons, I do not consider that there is evidence to enliven the deeming effect of Rule 5.8(b) in relation to the domains of communication and learning.
11. In each of the remaining domains of social interaction, mobility, self-care and self-management, the evidence reflects that while HZSG's functional capacity is reduced, and significantly so for some domains, there are some tasks and activities that HZSG can participate in or complete herself, without the high level of assistance contemplated by the Access Guidelines.
12. In the domain of social interaction, I am mindful of the evidence noted above, which reflects HZSG's current social isolation and her difficulties, because of her psychosocial impairments, in engaging in social interaction without support. I do note that reference was made to the person K as being her friend in the profile sections of her NDIS plans, and Ms Beary noted a close family friend Z at the time of her assessment several years ago.[198] While there is no evidence that these persons remain in HZSG's life (as noted, HZSG gave evidence that she 'has no one'), nor why those friendships might have ended (if that is the situation), this evidence does reflect some capacity of HZSG in this domain to participate in social interaction with a small circle of trusted other people, without the high level of 'disability-specific support' contemplated by the Guidelines.
13. Turning to HZSG's capacity to mobilise, while the evidence reflects an inability of HZSG to mobilise outside of her home without support, due to her psychosocial impairments, she is able to physically mobilise within her home.
14. For self-care, while Ms Sale assessed that HZSG has 'considerable difficulties' in managing her self-care activities, there are some activities in that domain, such as dressing and toileting, that HZSG regularly completes independently.
15. In the domain of self-management, Ms Sale considered that HZSG had capacity to solve problems of a basic level, although she experienced difficulty with any complex decision-making and problem-solving tasks.
16. In considering the possible operation of Rule 5.8(b) the Tribunal is required to make an assessment based upon the bundle of tasks and actions that form an activity,[199] and the degree to which HZSG can participate in the activity.[200]
17. Having regard to the evidence about the assistance required by HZSG, particularly that provided by Ms Sale, I am not satisfied that the evidence supports a finding that HZSG usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the four domains of social interaction, mobility, self-care and self-management, or to perform tasks or actions required to undertake or participate in those domains, such as to enliven the deeming effect of Rule 5.8(b).
18. I also find that the evidence I have noted above does not support a view, in terms of the possible application of paragraph (c) of Rule 5.8, that HZSG is 'unable' to participate in any of those domains or to perform tasks or actions required to undertake or participate in the domains, even with assistance from another person. Hence, paragraph (c) of Rule 5.8 does not assist HZSG.
19. As HZSG does not fall within the deeming operation of Rule 5.8 to satisfy the requirement of substantially reduced functional capacity for any of the activities set out in section 24(1)(c) of the NDIS Act, in accordance with Mulligan, I must still undertake the statutory task of considering whether HZSG's functional capacity is substantially reduced in any one of the six activities.[201]
20. The Agency has submitted, and I accept, that the use of the word 'substantially' in section 24(1)(c) imports a 'significant threshold for an applicant to satisfy',[202] and that '[a] mere reduction in functional capacity is insufficient; the reduction must be 'substantial'.[203]
21. I have dealt with the domain of learning above; I am not satisfied that there is sufficient evidence to support a finding that HZSG experiences substantially reduced functional capacity in the domain of learning.
22. Communication: The Access Guidelines require a consideration of how an applicant speaks, writes or uses sign language or gestures to express themselves, compared to others of the same age, and how well the applicant understands people, and how others understand them. Ms Sale's assessment and evidence was that HZSG is independent in her basic communication and does not require formal support, although she would benefit from some input from a psychologist to maximise the effectiveness of her communication.
23. Additionally, I had the opportunity to observe HZSG giving evidence during the hearing. While it was clear that at times her communication was impacted by her psychosocial impairments (such as fatigue, lapses in concentration and occasional displays of frustration, when answering questions), I formed the view that with the assistance of an interpreter, and her advocate, she was able to generally understand and respond to the questions asked of her.
24. In the case of Madelaine, the Tribunal found that an applicant who ' ... is able to speak, be understood, write messages by hand and send and receive electronic communications, albeit, in the latter category, slowly and with difficulty' possessed, and even exceeded, the communication skills threshold envisaged in the Access Guidelines.[204]
25. Having considered all of the evidence, I am satisfied that HZSG's impairments do not result in her having substantially reduced functional capacity in the domain of communication.
26. Social interaction: The Tribunal has noted previously that this domain is principally about personal skills needed for social interaction, and only marginally about opportunities to exercise those skills, such as location or frequency.[205] Additionally, in the case of Kilgallin and the National Disability Insurance Agency [2017] AATA 186, the Tribunal stated that:

Social interaction as referred to in in 24(1)(c)(ii) doesn't, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community.[206]

27. In that case, the Tribunal also said that the Applicant's interaction on a more-or-less regular basis with people that he felt comfortable with amounted, in its view, to social interaction.[207]
28. In the recent decision of Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607 (Burrows), Senior Member French of the Tribunal proposed that the bundle of tasks within the domain of social interaction:

... is limited to tasks associated with making and keeping friends, interacting with other people in the community, and maintaining behavioural and emotional regulation in a social context.

I note that this bundle of tasks, as identified, does not incorporate any reference to social interaction with immediate family, which is often referred to as evidence of functional capacity for social interaction in access cases ... It is to be noted that represents a departure from the ICF/WHODAS[208] assessment framework. However, upon reflection, it appears to me that this is a deliberate departure that is consistent with the objects of the NDIS Act, with its emphasis on the independence and social and economic participation of persons with disability, beyond their immediate family.[209]

1. Ms Sale assessed HZSG as having 'significant restrictions' in this domain.' All of the relevant evidence as set out above reflects that HZSG currently does not leave her home unless accompanied by support. Her outings, when so accompanied, are limited to weekly shopping trips to buy groceries and personal items. As noted above, she has had friendships in the past, but appears to have no current friendship group. Ms Sale observed that HZSG's main level of social contact was with her support workers and Dr Alkhalayleh; noting Dr Alkhalayleh's commentary about HZSG frequently texting ('bombarding') her supports.
2. Ms Sale's evidence also reflects that HZSG's capacity to make new friends and engage in the community is significantly restricted due to the operative impact of her various psychosocial impairments, including her PTSD and distrust of people; her agoraphobia and her inability to leave her home without support; her phobia about germs and contamination; her tendency to irritability; and her pervading lack of motivation to engage in the tasks that comprise this domain.
3. A/Professor Wijeratne expressed the view that that HZSG's distrust of others, arising from her experience of domestic and family violence, and her tendency to irritability, reduce her ability to socialise, and her ongoing social isolation further reduces her social skills.
4. The overall picture arising from this evidence is that HZSG lives in extreme social isolation, because of her psychosocial impairments. Considering this evidence and the tasks within this domain as set out above, I am satisfied that HZSG has substantially reduced functional capacity in this domain, resulting from her psychosocial impairments.
5. Mobility: There is no real dispute in the evidence that HZSG does not experience a substantial reduction in relation to her physical functional capacity for mobility. HZSG is able to mobilise within her home by walking around, independently transferring to her bed, to the shower, and so on.
6. The live issue relates to the evidence, as set out above, that because of her psychiatric impairments HZSG is unable to leave her home to enter the community, unless accompanied by a support person, and has not done so without support for many years.
7. As noted, the Agency submitted that the Tribunal should adopt the approach to this Activity that was set out in the case of Madelaine. The Agency's written submissions dealt primarily with HZSG's physical functioning, although it was submitted at the hearing that the evidence does not support a finding that HZSG has substantially reduced functional capacity in any respect.
8. A/Professor Wijeratne and Ms Sale expressed consistent views about HZSG's inability to leave her home and to access the community without support, because of her psychosocial impairments. I do not accept the submissions made by the Agency, advanced principally in relation to the availability to HZSG of treatment options, that HZSG is able to mobilise in the community to attend appointments or other engagements that are important to her (such as attending upon her general practitioner), and/or that self-limiting behaviours by HZSG impact in this context.
9. As noted, Ms Sale observed self-limiting behaviours by HZSG only in relation to her use of her left upper limb. Ms Sale also attributed HZSG's restrictions in the domain of mobility to her 'psychiatric impairments.' I am satisfied that the evidence reflects that the difficulties HZSG experiences in mobilising to leave her home and to enter the community arise because of her psychosocial impairments, including some of those specific impairments noted above in the context of HZSG's functional capacity for social interaction, namely her PTSD and distrust of people; her agoraphobia and her inability to leave her home without support; her phobia about germs and contamination; and her pervading lack of motivation to engage in the tasks.
10. Additionally, as was noted by Senior Member French in Burrows:

... consistent with the ICF, the assessment of a prospective participant's functional capacity is based upon the 'naked' person; that is, it seeks to determine the person's capacity without personal assistance or use of assistive devices. That is the case, except to the extent that this principle is modified by Rule 5.8(a) to require commonly used item of equipment, such as glasses, to be discounted. In my opinion, given that Rule 5.8(a) should be taken to evince a legislative intention, the same approach should be taken in relation to the assessment of functional capacity for the purposes of s 24(1)(c) other than when Rule 5.8 is applicable.[210]

1. I have previously noted the evidence about the support provided to assist HZSG to attend important appointments, and to attend this hearing.
2. For these reasons, I disagree with the submission that HZSG's attendance at appointments, such as those with her general practitioner, means that her functional capacity in this domain is not substantially reduced.
3. I accept that HZSG's functional capacity to physically mobilise is not substantially reduced because of her psychosocial impairments. However, the evidence as noted is clear that because of her psychosocial impairments HZSG is unable, in the language of Madelaine, to 'mobilise in the community',[211] or, in the language of the Access Guideline, to 'get out and about' without support, even to undertake a relatively brief outing such as taking her rubbish to the bin area in her housing complex. This amounts, in my view, to a substantial reduction of her functional capacity to mobilise.
4. On the basis of this evidence, I am satisfied that HZSG has substantially reduced functional capacity in the domain of mobility.
5. Self-care: For HZSG to have a substantially reduced functional capacity in the domain of self-care, she must establish that there are 'significant gaps' in her capacity to maintain her personal health, safety and well-being.[212]
6. I am satisfied that HZSG has significant gaps in her capacity to complete tasks relating to her personal care, eating and drinking, and health care, and this situation arises because of her psychosocial impairments.
7. As noted, Ms Sale assessed that HZSG has considerable difficulties in managing her self-care activities. While HZSG can undertake some tasks relating to her personal care, such as toileting and dressing, Ms Sale's evidence is that HZSG 'frequently neglects, avoids or attends to self-care activities at an inappropriate level (i.e. hand washing and teeth brushing),' and requires support to ensure consistent and appropriate attendance to her self-care tasks.
8. The evidence of HZSG and the medical practitioners is that HZSG experiences ongoing difficulties in complying with her prescribed medication usage. Without support, she is unable to arrange and attend appointments necessary for her proper health care. Her present circumstances demonstrably speak as to the impact of this upon her well-being.
9. Ms Sale's observations as to the sparse number of food items and the nature of the items that were present in HZSG's unit at the time of her assessment, corroborate HZSG's evidence about her limited food intake and her disinterest in cooking or preparing meals. Again, Ms Sale considered that HZSG needs ongoing assistance with these tasks.
10. Further, Ms Sale's evidence as to the state of HZSG's home at the time of her assessment, and particularly the prevalence of used wipes and tissues as unremoved rubbish at multiple sites in the unit, sadly suggests that HZSG ordinarily lives in a degree of squalor.
11. It was noted in Burrows that the bundle of tasks to be considered within the domain of self-care is limited to tasks associated with personal care (including hygiene and grooming), eating and drinking, and health care, and that domestic cleaning and shopping for food do not fall within the bundle of tasks that make up the domain.[213] That formulation of the relevant bundle of tasks is consistent with the tasks description contained for this domain in the Access Guidelines and, for the reasons set out in the Burrows decision,[214] I am content to proceed on this construction of the scope of the tasks falling within this domain, subject to one qualification about HZSG's functional capacity regarding cleaning and food shopping tasks, as explained below.
12. In Burrows, Senior Member French added that there may be an exception regarding the tasks he found to fall within the bundle for this domain, relating to tasks such as domestic cleaning and food shopping, where:

... a prospective participant's inability to perform these tasks results in squalor or malnutrition, for example. In such circumstances these tasks may be considered as related to 'health care' in the self-care activity area.[215]

1. I respectfully agree with that approach. The evidence I have noted, such as A/Professor Wijeratne observing that HZSG was relatively malnourished and Ms Sale's evidence about the state of HZSG's home, raise issues of this nature and palpable risks to HZSG's health.
2. In applying the approach taken in Madelaine, I am satisfied that the gaps that exist in HZSG's capacity to attend to her self-care needs are such that they significantly compromise the maintenance of her health, safety and well-being.[216]
3. For these reasons, I am satisfied that HZSG has substantially reduced functional capacity in the domain of self-care.
4. Self-management: In Burrows, Senior Member French concluded that the bundle of tasks within the self-management domain:

... are limited to cognitive tasks associated with personal organisation, planning, decision-making, self-care, problem-solving and financial management.[217]

1. The Access Guidelines note the consideration of a prospective participant's 'mental or cognitive ability to manage your life, not your physical ability to do these tasks.'
2. Ms Sale concluded that HZSG requires input and assistance with any decision-making and problem-solving tasks beyond that of a basic level of complexity.' [218] A/Professor Wijeratne was of the view that the evidence he considered demonstrates that HZSG has 'a significant level of disorganisation and apathy with regard to managing her life' and 'she would seem to have difficulty managing even simple tasks.[219] He also noted the association of major depressive disorder and PTSD with executive dysfunction.
3. It is unsurprising, given the evidence about the long-term and impactful nature of HZSG's various psychosocial impairments, that those impairments operate to reduce her functional capacity to perform the tasks relevant to this domain. In its written submissions the Agency accepted that the evidence demonstrates that HZSG has 'some limitations in this domain'.[220]
4. However, the Agency further contended that HZSG's behaviour, in using her phone to make up to twenty calls a day to Dr Alkhalayleh, and also to contact her support worker, demonstrate her planning abilities and how she can operate a phone without assistance.
5. I do not agree with that submission, beyond acknowledging that obviously the evidence reflects that HZSG can use her phone to contact people known to and trusted by her. Rather, I am of the view that HZSG's behaviour regarding this pattern of contact with Dr Alkhalayleh speaks more of her inability to appreciate the unnecessary and inappropriate nature of such repeated contact, and her inability to plan and organise her day-to-day affairs and to solve problems in a functional manner. This is consistent with Ms Sale's assessment that HZSG's 'insight into making appropriate decisions is compromised and impaired due to her psychiatric restrictions.'[221] This evidence also, to my mind, reflects HZSG's consistent desperation and, as already noted, her extreme level of social isolation.
6. I am satisfied that HZSG has substantially reduced functional capacity in the domain of self-management.

1. I have found that HZSG has substantially reduced functional capacity in the domains of social interaction, mobility, self-care and self-management, resulting from her psychosocial impairments.
2. Accordingly, I find that HZSG meets the requirements of section 24(1)(c) of the NDIS Act.

Section 24(1)(d) - social and economic participation

1. Section 24(1)(d) requires that the prospective participant's impairments affect the person's capacity for social and economic participation.
2. I am satisfied that the evidence clearly establishes that HZSG's psychosocial impairments have affected her capacity for social and economic participation. As noted, the evidence reflects that she does not work and receives a pension because of her disability. Outside of her engagement with her support workers, HZSG lives a life of social isolation because of the impacts of her psychosocial impairments.
3. The Agency conceded that if I were to reach the view that HZSG's impairments are permanent, then HZSG otherwise satisfies the requirements of section 24(1)(d).[222]
4. I am satisfied that HZSG meets the requirements of section 24(1)(d).

Section 24(1)(e) - likely need for lifetime NDIS support

1. In the Foster decision, the Full Court of the Federal Court said the following about the requirement contained within section 24(1)(e) of the NDIS Act:

The focus of s 24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems ... The answer to that question depends on whether the support is required in respect of substantially reduced functional capacity to participate in an "activity", as assessed in accordance with s 24(1)(c). In the present case, there is another system that provides support to Mr Foster, albeit that it does not cover the full costs of his catheters.

Mr Foster submitted that question was not to be approached by asking what supports he was presently requiring but also what supports he might need to be funded through the NDIS once he was a participant in the scheme. That submission cannot be accepted. Section 24 is the gateway provision. The "likely" support referred to in s 24(1)(e) can only be referable to the result of the impairment the subject of the application to gain access to the NDIS.[223]

There is no scope for support to be partially funded under the NDIS. Once the CEO has formed a state of satisfaction about whether a support is "reasonable and necessary", and not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body" (s 34(1)(f)), it must be fully funded: McGarrigle v National Disability Insurance Agency [2017 FCA 308; 252 FCR 121 at [94] per Mortimer J.[224]

1. The Access Guidelines provide (footnotes omitted:

You must be likely to need support under the NDIS for your whole life.

NDIS supports are investments that help you build or maintain your functional capacity and independence, and help you work, study or take part in social life.

Even if your needs go up and down over time, or happen episodically, we may still consider it's likely you'll need lifetime support under the NDIS.

We consider your overall situation to answer this question.

When we decide if you'll likely need support under the NDIS for your whole life, we consider:

• whether your needs could be best met by the NDIS, or by other government and community services.

For example, you may have an impairment which is caused by a chronic health condition. Many chronic health conditions are most effectively managed or remedied through medical management through the health system. If this is the case, we may decide that you don't have a lifetime need for support under the NDIS.

1. The Agency contended that the supports required by HZSG are more appropriately provided through mainstream health services. Further, that HZSG:

... would benefit from engaging with mentorship programs for adult learners to increase her independence and support her choice and control of wanting to boost her practical life skills which is best met through mainstream supports.[225]

1. Additionally, the Agency contended that as HZSG did not (in the Agency's submission) meet section 24(1)(c) of the NDIS Act, HZSG does not meet the threshold requirement for access to the NDIS and is therefore unlikely to require NDIS support for her lifetime. I have however found that HZSG has substantially reduced functional capacity, because of her psychosocial impairments, in four domains.
2. Turning to a consideration of the likely supports required by HZSG to address her substantially reduced functional capacity in those four domains, I acknowledge that some of HZSG's needs, for example, in the form of the treatment recommended by A/Professor Wijeratne, should be met by appropriate clinical treatment through the health system. However, the evidence that I have already noted in relation to the permanence and impact of HZSG's psychosocial impairments reflects that her support needs relating to her functional capacity and her participation in the four domains where that is substantially reduced, goes well beyond what can be provided through the health system and through the other community-based options noted by Ms Sale, such as a SASH package, or the mentorship program noted by the Agency.
3. In this respect, I have had particular regard to the recommendations made by Ms Sale, in her report, about HZSG's support needs. These include regular weekly or fortnightly supports to address HZSG's identified functional incapacities, which I have found to be at the level of a substantial reduction, in the domains of social interaction, mobility, self-care and self-management. The types of supports identified by Ms Sale include assistance for HZSG to access the community and participate in social and community engagement; transport and accompaniment to attend medical and other essential appointments; assistance with her food shopping and meal preparation; assistance with household cleaning; and assistance with self-management activities, including prompting and oversight of personal care tasks. Ms Sale recommended that such supports be provided by support workers and, for the cleaning assistance, a domestic assistance provider.[226]
4. As noted, Ms Sale additionally made recommendations regarding HZSG's current needs and the provision of:
   • Support from an occupational therapist or social worker to source, find and locate local community-based groups.
   • Psychology and occupational therapy support, to address HZSG's current inability to leave her home and access the community unless accompanied.[227]
5. While I accept the Agency's submission that HZSG may benefit from engaging with adult learning mentorship programs, the evidence does not support a view that she could do presently do that without assistance. Further, such engagement would not, in my view, supplant HZSG's likely needs for the supports recommended by Ms Sale. I am also satisfied that those supports, which focus on HZSG's functional capacities, are all NDIS supports.[228]
6. There is a degree of prediction attaching to the requirement in section 24(1)(e) as to the lifetime need of a prospective participant for NDIS supports. I am satisfied, on the basis of the medical evidence noted above, that HZSG's needs are likely to be long-term.[229] She is now 42 years of age. The medical evidence establishes that HZSG has endured a range of debilitating psychosocial impairments, arising from multiple underlying diagnosed mental health conditions, for at least all of her adult life. A/Professor Wijeratne has noted the chronic and unremitting nature of her impairments and her need for long-term and intensive treatment. It is to be hoped that with appropriate clinical treatment and the provision of other supports as recommended, that improvements will be achieved in HZSG's functional capacity, which may in turn impact upon her need for supports through the NDIS. However, as was noted in the Tribunal decision of RZLV and National Disability Insurance Agency [2024] ARTA 294:

Such change in support needs occur not infrequently for participants of the NDIS and is anticipated by the legislative provisions for plan variations and reassessments.[230]

1. In that context, I also note the provisions of subsections (2) and (3) of section 24 of the NDIS Act, as set out above, regarding the variation in intensity and/or the episodic or fluctuating nature of impairments as being recognised factors that do not in themselves mean that such impairments are not permanent or that the person is not likely to require NDIS supports under the NDIS for their lifetime.
2. Having regard to the medical evidence about the nature of HZSG's psychosocial impairments and Ms Sale's evidence about HZSG's current functional capacities and support needs, I am satisfied that HZSG is likely to require NDIS supports under the NDIS for her lifetime.

1. It follows that I am satisfied that HZSG meets the disability requirements as per section 24 of the NDIS Act.
2. This means that HZSG meets the access requirements for the NDIS, as per section 21 of the NDIS Act, as it read before the amendments made and effective from 3 October 2024. As such, I will not proceed to address the early intervention requirements of the NDIS Act.

1. The Tribunal sets aside the decision under review and in substitution decides that the Applicant meets the access requirements in section 21 of the National Disability Insurance Act 2013.

[1] Hearing Bundle, Document H1, Agency's Statement of Facts, Issues and Contentions, 6 January 2025, (the Agency's SFIC), pages 1-21, [5].

[2] Hearing Bundle, Document T13, NDIS Plan 18 December 2020 - 18 December 2021, pages 144-158.

[3] Hearing Bundle, Document T14, NDIS Plan 4 August 2021 - 4 August 2023, pages 159-174.

[4] Hearing Bundle, Document T15, NDIS Plan 13 April 2022 - 12 April 2024, pages 175 - 190.

[5] Hearing Bundle, Document T8, First Eligibility Check Letter from Agency to HZSG, 17 November 2022, pages 118-123.

[6] These reports were in the Hearing Bundle; Document T6, Report of Waren Berger, Occupational Therapist, 2 May 2021 (relating to an assessment conducted on 8 April 2021), pages 84-99; and Document T7, Report of Waren Berger, Occupational Therapist, 2 February 2022 (relating to an assessment conducted on 28 January 2022), pages 100-117.

[7] Hearing Bundle, Document T5, Report of Bernadette Beary, Occupational Therapist, 10 December 2019, pages 71-83.

[8] Hearing Bundle, Document T3, NDIS Access Request Form, Dr Joseph Di Silva, dated 15 August 2019, pages 55-62.

[9] Hearing Bundle, Second Eligibility Check Letter from Agency to HZSG, 9 February 2023, pages 124-130.

[10] Hearing Bundle, Document T10, Revocation of Access Letter, 15 May 2023, pages 11- 136.

[11] Dr Alkhalayleh is a Director of a Sydney based support service. He appeared as an advocate for HZSG at the hearing of this review.

[12] Hearing Bundle, Document T12, Extract of NDIA interaction record - Request for Review, dated 29 May 2023, page 143.

[13] Hearing Bundle, Document T1A, Internal Review Decision, 31 May 2023, pages 29-40.

[14] Hearing Bundle, Document T11, Report of Dr Alfred de Robillard (Psychologist), dated 19 May 2023, pages 137-142.

[15] Hearing Bundle, Document T1, Application for Review of Decision, 6 June 2023, pages 25-42.

[16] Hearing Bundle, Document R3, Agency's Targeted Questions for HZSG's treating practitioners, 22 November 2023, pages 403-405 (relevant to Dr Younan).

[17] Hearing Bundle, the Agency's SFIC, pages 1-21); Document H2, Applicant's Statement of Facts, Issues and Contentions, 22 January 2025, pages 22-24 (the Applicant's SFIC).

[18] Hearing Bundle, Document A2, Occupational Therapy Independent Living Options Assessment report of Waren Berger (Occupational Therapist), 13 July 2023, pages 294-313 (Mr Berger's third report)

[19] Hearing Bundle, Document R1, Report of Associate Professor Chanaka Wijeratne, Consultant Psychiatrist, 8 April 2024, pages 333-347 (A/Professor Wijeratne's report); Document R2, Functional Capacity Assessment Report of Ms Melissa Sale, Occupational Therapist, dated 26 July 2024, pages 348-400 (Ms Sale's report).

[20] Administrative Review Tribunal (Common Procedures) Practice Direction 2024, Part 6.

[21] This and some following sections of this decision dealing with the applicable law have been adapted from prior NDIS access decisions of this Tribunal Member.

[23] Shi v Migration Agents' Registration Authority [2008] HCA 31; (2008) 235 CLR 286 (Shi), 324-325, 327 (Kiefel J).

[24] Administrative Review Tribunal Act 2024 (Cth), s 54.

[25] Shi 300-301 (Kirby J); 314-315 (Hayne and Heydon JJ); 327-328 (Kiefel J).

[26] Beezley v Repatriation Commission [2015] FCAFC 165 [68], as applied in Sutherland v National Disability Insurance Scheme [2024] AATA 411 [53].

[27] National Disability Insurance Agency v Lampard [2025] FCAFC 139, per Bromwich, Neskovcin and Vandongen JJ, [31].

[28] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth), s. 2.

[29] The following excerpts reflect how these provisions read prior to 3 October 2024.

[32] Again, these excerpts relate to the Rules as they were before 3 October 2024.

[33] See https://www.ndis.gov.au/about-us/operational-guidelines

[34] G v Minister for Home Affairs [2019] FCAFC 79, [18].

[35] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 (President Brennan J).

[36] Hearing Bundle, Document T4, NDIS Access Request Form, page 56.

[37] Mulligan v National Disability Insurance Agency [2015] FCA 544, [51] (Mulligan)

[38] Hearing Bundle, Document H1, Agency's SFIC, [42].

[39] As listed in Ms Sale's report, page 396.

[42] Hearing Bundle, Document A9, HZSG's statement of lived experience, 23 February 2024, pages 331-332.

[43] A/Professor Wijeratne's report, page 335.

[45] It is noted that Ms Sale reported HZSG speaks on the telephone to her mother 'every few weeks'; Ms Sale's report, page 358.

[46] Hearing Bundle, Document T3, Access Request Form, Dr Di Silva, 15 August 2019, pages 55-62.

[47] Hearing Bundle, Document T4, Access Request Form, Dr Aladdin Matter, 23 August 2019, pages 63-70.

[48] Hearing Bundle, Document T3, Access Request Form, Dr Di Silva, 15 August 2019, page 59.

[49] Hearing Bundle, Document T4, Access Request Form, Dr Aladdin Matter, 23 August 2019, page 67.

[50] Hearing Bundle, Document T5, Report of Ms Bernadette Beary (Occupational Therapist), 10 December 2019, pages 71-83.

[57] Hearing Bundle, Document T6, Report of assessment conducted on 8 April 2021, pages 84-99; Document T7, Report of assessment conducted on 28 January 2022, pages 100-117; and Mr Berger's third report, pages 294-313.

[60] Mr Berger's third report, page 298.

[61] A reference to Department of Housing.

[62] Mr Berger's third report, pages 298-299.

[64] A/Professor Wijeratne's report, page 337.

[65] Hearing Bundle, Document T11, Report of Dr Alfred de Robillard (Psychologist) dated 19 May 2023, pages 137-142 (Dr de Robillard's report).

[66] Hearing Bundle, Document R3, Agency's Targeted Questions for the Applicant's Treating Practitioners, pages 401-403 (relevant to Dr de Robillard).

[67] Hearing Bundle, Document A4, Responses of Dr de Robillard to the Agency's Targeted Questions, dated 28 January 2024, pages 320-323.

[68] Dr de Robillard's report, page 288.

[69] Hearing Bundle, Document A4, Responses of Dr de Robillard to the Agency's Targeted Questions, page 320.

[70] Dr de Robillard's report, page 289.

[74] Hearing Bundle, Document A4, Responses of Dr de Robillard to the Agency's Targeted Questions, page 322.

[75] Hearing Bundle, Document A5, Report of Dr Naveen Nataraj (Consultant Psychiatrist), dated 29 October 2024, pages 324-326 (Dr Nataraj's report).

[76] For clarity, it is noted that this worker was identified in Dr Nataraj's report; it was not Dr Alkhalayleh.

[78] The Macquarie Dictionary defines this term as meaning 'abnormal redness of the skin due to local congestion, such as in inflammation'. Home - Macquarie

[83] Hearing Bundle, Document R3, Agency's Targeted Questions for HZSG's treating practitioners, 22 November 2023, pages 403-405 (relevant to Dr Younan).

[85] Hearing Bundle, Document S1, Summonsed material, Hospital (Mental Health Clinic), pages 883-945.

[88] Hearing Bundle, Document S2, Summonsed material, Dr Matter, pages 946-1035.

[89] Dr Matter's records reflect that his first consultation with HZSG, for an unrelated matter, was in that same month.

[90] Hearing Bundle, Document S2, Summonsed material, Dr Matter, pages 1027-1028.

[91] Seroquel is an antipsychotic medication.

[92] Hearing Bundle, Document S2, Summonsed material, Dr Matter, page 1029.

[94] Hearing Bundle, Document S4, Summonsed material (Physiotherapy practice), pages 1048-1057.

[95] Evidence of Dr Alkhalayleh, 28 April 2025.

[96] This is a reference to the support worker providing unpaid regular assistance to HZSG, as of the date she gave her evidence.

[98] A/Professor Wijeratne's report, page 334.

[99] A/Professor Wijeratne's report, page 335.

[102] Evidence of A/Professor Wijeratne, 29 April 2025.

[103] A/Professor Wijeratne's report, page 339.

[108] Evidence of A/Professor Wijeratne, 29 April 2025.

[109] A/Professor Wijeratne's report, page 341.

[115] Evidence of A/Professor Wijeratne, 29 April 2025.

[116] In her evidence at the hearing on 29 April 2025 Ms Sale confirmed that this was a reference to psychological and psychiatric therapies, and physiotherapy.

[128] Ibid, page 380, and evidence of Ms Sale, 29 April 2025.

[129] Applicant's SFIC, pages 22 and 24.

[130], Agency's SFIC, [43]; opening submissions of Counsel for the Agency, 28 April 2025; and closing submissions of Counsel for the Agency, 21 July 2025.

[134] Closing submissions of Counsel for the Agency, 21 July 2025.

[135] Agency's SFIC, [53]-[55] and closing submissions of Counsel for the Agency, 21 July 2025.

[136] Closing submissions, 21 July 2025.

[139] Lampard, [20]-[21], [23].

[140] Kelly v National Disability Insurance Scheme [2024] FCA 1462 (Kelly), [15].

[146] Mortimer J's explanation of the meaning of the word 'remedy', as already noted above, has been omitted here.

[149] A/Professor Wijeratne's report, page 339.

[152] Evidence of Ms Sale, 29 April 2025.

[153] Noting that the descriptions contained within the Operational Guidelines should be considered as providing 'non-exclusive content to the range of tasks and action' (as referred to in Rule 5.8) that comprise the activities the NDIA is required to consider, consistent with the legislative history, context and purpose.' National Disability Insurance Agency v Foster (2023) FCAFC 11 (Foster), [62].

[154] The current Practice Direction is the Administrative Review Tribunal (Expert Evidence) Practice Direction 2024.

[155] Ibid, Part 2.

[156] Mr Berger's third report, pages 306-307.

[175] The Agency's SFIC, [71]-[73].

[178] Ibid, [64], citing MRLK and National Disability Insurance Agency [2021] AATA 3896 at [150]- [154]; Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [104]- [106]; see also Holmes and National Disability Insurance Agency [2017] AATA 2750 and MHZQ and National Disability Insurance Agency [2019] AATA 810.

[179] The Agency's SFIC, [63]-[66].

[180] The Agency's SFIC, [68]-[70].

[181] Closing submissions, 21 July 2025.

[190] Timofticiuc and National Disability Insurance Agency [2021] AATA 3015, [96].

[191] NDIS Operational Guideline, Assistive Technology (equipment, technology and devices), 20 December 2023, page 2.

[192] Ms Sale's report, pages 378-379.

[194] [2021] AATA 3523.

[197] A/Professor Wijeratne's report, page 345.

[202] Agency's SFIC, [61], citing Rooney and National Disability Insurance Agency [2021] AATA 3532 at [22].

[205] Ghezzaoui and National Disability Insurance Agency [2023] AATA 2835, [79]; noting Madelaine and National Disability Insurance Agency [2020] AATA 4025, [87] and Nika and National Disability Insurance Agency [2021] AATA 2127, [241].

[206] Kilgallin and the National Disability Insurance Agency [2017] AATA 186, [19].

[208] International Classification of Functioning Disability and Health.

[209] Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607, (Burrows)at [108]-[109].

[210] Burrows, [71] (footnotes omitted).

[219] A/Professor Wijeratne's report, page 345.

[226] Ms Sale's report, pages 377-378.

[228] As to what is an 'NDIS support', see section 10 of the NDIS Act and the National Disability Insurance Scheme (Getting the NDIS back on Track No.1) (NDIS Supports) Transitional Rules 2024.

[229] Noting the observations made earlier in this decision in Kelly as to the proper interpretation of the term 'likely'.