"On today's assessment, she described her pain as a muscle spasm in her right lower back radiating to her right groin and right thigh. She denied any lumbar radiculopathy in the distribution of the sciatic nerve. She also denied any changes to her bowel or bladder function, fall or claudication. On the numerical rating scale, she reported an average pain score of 7/10, which can worsen to 10/10 with physical activity.

She mobilises independently unaided, and she is independent with her personal care. She reports limited walking tolerance and sitting tolerance secondary to pain. Despite this, she tries to remain active; she looks after all the domestic tasks herself, cooks, and manages shopping independently.

On examination, she walked independently unaided and did not present with an antalgic gait. Her right knee reflex was present; however, the left knee reflex was not elicitable. She had manual muscle strength of 5/5 in both her lower limbs, particularly in the right hip flexion L3 myotome). She was able to walk on her toes and heels and did not present with foot drop. There was midline tenderness to her lumbar spine. Lumbar extension was limited to 5 degrees and provoked her right lower back pain and on quadrant testing, she reported pain in the same spot of her lower back. Faber testing also caused lower back pain on both sides, suggestive of SI joint pathology. There was no significant pain in her hip joint on axial loading, and there was also no significant hip joint restriction on Faber testing on either side."[49]

1. Dr Saramast noted the Applicant was mainly troubled by right-sided lower back pain radiating down to the groin and thigh, "which might be either related to disc pathology or facet joint arthritis". She referred the Applicant for an MRI scan of her lumbar spine, hips and knees "for further assessment". She gave the Applicant advice about medications and "reinforced the importance of nonpharmacological measures such as pacing strategies...". She also encouraged the Applicant to engage in active stretching and gentle strengthening exercises. Dr Sarmast recommended the Applicant's GP refer her to an exercise physiologist for gentle reconditioning exercises and commented she would also benefit from hydrotherapy. She indicated she had organised a follow-up appointment with the Applicant in two months "when she returns from her upcoming overseas trip"[50].
2. The Applicant did not return to see Dr Sarmast or obtain the MRI scan. However, as I have already referred to, an MRI scan of her lumbar spine was undertaken in September 2015 at the request of a neurosurgeon, Dr Darwish. This showed widespread degenerative changes at multiple levels[51]. Dr Darwish commented that the most significant finding was "moderate canal stenosis at L4/5 level" and Grade 1 spondylosthesis"[52]. However, the scan also showed disc bulges at multiple levels and a "posterior annular tear and broad-based disc bulge" at L5/S1[53].
3. An MRI scan of the Applicant's neck was also undertaken on 20 December 2023. This showed fusion of the disc space at C6/7 and a disc bulge at C5/6 resulting in some compression of the right C6 nerve and the right C5 nerve, "which may be an additional site of neural irritation"[54].
4. During her oral evidence, Dr Sarmast confirmed the treatment she prescribed for the Applicant essentially consisted of a combination of medication and exercise. She indicated the main purpose of this treatment was to alleviate the Applicant's symptoms, particularly her pain, and prevent further decline in her functioning. She acknowledged that, depending on the Applicant's compliance, improved functioning was one possible outcome of the treatment. However, she reiterated that, noting the Applicant's osteoarthritis was a permanent and progressive condition, the main purpose of treatment was to maintain her functioning and prevent further decline.
5. Mr Moutsallem also indicated during his oral evidence that the purpose of any further physiotherapy appointments would be to maintain and possibly improve the Applicant's functioning and quality of life. He acknowledged that one of his reports referred to the possibility of improving her mobility and functional capacity, but clarified that on reflection, while improvement was a possibility, maintenance was a more realistic goal. He confirmed his understanding of the extent to which the Applicant had undertaken the exercises given to her was based on her report to him. However, he also confirmed that he continued to believe all treatment options had been considered, and "No other treatment modalities will reduce the impairments"[55].
6. As the Agency does not accept that any of the relevant impairments are permanent, I will address the potential permanency of each impairment in turn.

1. The Agency contends the Applicant's back pain cannot properly be regarded as permanent until she has undergone all the recommended treatments for this condition, including physiotherapy, exercises, hydrotherapy and ongoing engagement with Dr Sarmast or another rehabilitation/ chronic pain specialist.
2. I accept on the evidence that the Applicant has not fully engaged and complied with all of the recommendations made to her with respect to her chronic back pain. In particular, she has only engaged with physiotherapy to a limited extent, and it does not appear she has recently had hydrotherapy. She also does not appear to have undertaken all the exercises she has been given or obtained treatment from a specialist pain physician. However, the real issue in my view is whether any of these treatments are likely to have a significant impact on the impairment resulting from the Applicant's lumbar spine pathology and associated chronic pain.
3. In addressing this issue, I note the Applicant's degenerative disc disease is well established and documented. It is clear from the MRI scan undertaken in 2015 that there are widespread and very significant degenerative changes in her spine, particularly in the lumbar region which was operated on in Iran. The effect of the medical evidence, taken as a whole, is that her presenting symptoms are consistent with this imaging. Further the medical evidence is also to the effect that surgery is not a viable option to address her lumbar pathology and there are no other treatments available which offer the possibility of 'remedying' this impairment. The Applicant is therefore left in the position whereby the only options available to address her spinal pathology and pain are conservative measures consisting of pain medication, exercised based modalities such as physiotherapy, gentle exercise and strategies such a pacing. The evidence is also to the effect that the purpose of these treatments is primarily to relieve pain and prevent further deterioration in her functioning. There is no evidence before me to the effect that undertaking any of the further treatment which has been recommended to the Applicant is likely to significantly improve let alone "remedy" the impairment resulting from her lumbar spine osteoarthritis and other pathology.
4. The Respondent directed my attention to some inconsistencies in the evidence and submitted it was open to me to conclude the Applicant was exaggerating her symptoms. I will address the relevant inconsistencies later in my Reasons. However, I am not persuaded the Applicant has exaggerated her back pain or the impairments resulting from it. In my view there is overwhelming evidence the Applicant has very serious back pathology which causes her significant pain, including some nerve pain, and restricts her movement.
5. In these circumstances, I am not satisfied there are treatments available which are likely to "remedy" the impairment resulting from the Applicant's back pain such as to invoke rule 5.4. Equally, I am not satisfied that rule 5.6, relating to further treatment being required before permanency can be demonstrated, is satisfied. Given the pathology revealed by the medical imaging, combined with the consistency of her symptoms over many years, in my view it is clear the impairment resulting from the Applicant's back condition is likely to persist at a similar level to that which has been present for many years and is therefore permanent.

1. The situation is similar with respect to the Applicant's neck.
2. It is clear on the evidence the Applicant has significant pathology in her neck. She has undergone surgery on her neck, namely a C6/7 fusion, and has a disc bulge at C4/5, apparently resulting in some nerve impingement and "chronic cervical radiculopathy"[56]. Mr Moutsallem also found she had a reduced range of movement in her neck.
3. Dr Sarmast indicated in her oral evidence that the conditions which had the greatest impact on the Applicant were her back and neck pain. She commented with respect to the osteoarthritis affecting the Applicant's neck, back, shoulders and hands that:

"Her condition is chronic and progressive and had led to joint restrictions and chronic pain with subsequent reduction in mobility, strength, manual dexterity and fatigue."[57]

1. As with the Applicant's back, the only treatment available for the Applicant's neck consists of exercises and medication, intended to "prevent frequent pain flares and ongoing functional decline"[58]. There is no indication in the evidence of treatment which is likely to "remedy" the impairment resulting from the Applicant's neck pathology and resultant pain. Further I am also satisfied that the Applicant's presentation with respect to her neck pain and restrictions is broadly consistent with the more objective evidence, and that she suffers very significant pain and restriction, including some nerve pain, as a result of her serious neck pathology.
2. I am therefore not satisfied that rule 5.4, relating to treatment which is likely to remedy an impairment, is applicable. Equally, I am not satisfied that rule 5.6, relating to further treatment being required before permanency can be demonstrated, is satisfied. In my view is it is abundantly clear that the impairment resulting from the Applicant's neck condition is likely to persist at roughly the current level, albeit it may fluctuate and modest improvement in her functioning may be achievable.
3. It follows that I am satisfied the impairment resulting from the Applicant's neck condition is also permanent.

1. The nature of the Applicant's shoulder pathology is also relatively clear on the evidence. Mr Moutsallem reported that she had a supraspinatus tear together with sub acromial impingement and bursitis. Dr Sarmast has also indicated that the Applicant has "generalised osteoarthritis" affecting multiple joints, including "both shoulders". This is consistent with the ultrasound performed in 2021 which showed mild degenerative changes in the Applicant's acromioclavicular joints. In her report of 14 May 2021 Dr Sarmast also referred to the Applicant's "generalised degenerative disease" causing various conditions including "bilateral shoulder pain secondary to supraspinatus tendinosis"[59].
2. While a 2021 ultrasound report referred to the possibility of an ultrasound guided injection "for symptomatic improvement", there is no other evidence before me of treatment available to the Applicant which would be likely to improve, let alone "remedy" her shoulder impairments. The effect of the evidence of both Dr Sarmast and Mr Moutsallem was that the focus of their treatment was on alleviating symptoms and preventing further decline and that there was no treatment available which would be likely to "remedy" or cure the Applicant's shoulder impairments.
3. With respect to the Applicant's presentation and the possibility of exaggeration, I also consider there to be a very high degree of consistency between the way the Applicant has presented and described her shoulder impairments (including to both Occupational Therapists), the objective evidence of pathology and the opinions of both Dr Sarmast and Mr Moutsallem.
4. I have therefore concluded that neither rule 5.4 or 5.6 are satisfied with respect to the Applicant's shoulder impairments. On the evidence, I do not consider there is further treatment available which is likely to "remedy" or even significantly reduce the Applicant's shoulder impairments. Nor do I consider further medical treatment or assessment to be necessary before a confident conclusion can be reached as to the likely permanency of the Applicant's shoulder impairments.
5. It follows that in my view the Applicant's shoulder impairments are also permanent for the purposes of s 24(1)(c).

1. I note Dr Sarmast advised the Applicant to wear splints on her wrists at night, but also noted that at one stage she was only wearing a splint on the right side. During her oral evidence the Applicant also alluded to wearing a splint on one side rather than both sides.
2. During her evidence to the Tribunal, Dr Sarmast also indicated that surgical release would be an option for the Applicant's carpal tunnel syndrome if it was really troubling her or became worse.
3. In view of this evidence, as there is treatment available which may substantially reduce the impairment resulting from this condition, I am satisfied that rule 5.4 applies, and this condition cannot properly be regarded as permanent for the purpose of the Act.

1. On 8 June 2022, Dr Mourad, an Orthopaedic Surgeon, reported to the Applicant's GP on her finger conditions. He noted that her right thumb and left ring finger were "triggering" and that her right index finger had a "suspected inclusion cyst or foreign body granuloma"[60]. Dr Mourad mentioned that he had offered ultrasound-guided steroid injections, but the Applicant declined this option. He recommended "surgical management" of the conditions, pending an MRI of the right index finger. There is no evidence before me indicating the Applicant has explored the treatment recommended by Dr Mourad.
2. In view of this evidence, there appears to be treatment available which may substantially alleviate the impairment resulting from these conditions, but which has not yet been undertaken. Accordingly, I also consider that rule 5.4 applies to these impairments and they therefore cannot currently be regarded as permanent.

1. It is clear from the evidence the Applicant also has osteoarthritis in her knees. However, this does not appear to have been investigated as fully as some of her other conditions, and it is unclear whether treatment, potentially including surgical intervention, may be available for her knees.
2. I note the Applicant saw an orthopaedic surgeon, Dr George Kirsh, for right knee pain and swelling in 2010. He diagnosed a "meniscal tear" and recommended a right knee arthroscopy, however there is no evidence the Applicant underwent this procedure.
3. I note imaging of the Applicant's left knee was undertaken in 2012. This showed "early degenerative change"[61] and a "regional bone scan and Spect" done in April 2012 showed "degenerative arthritis" in the right knee joint[62]. The Applicant was also referred for physiotherapy for both knees in September 2022[63].
4. In my view, further medical treatment and review of the Applicant's knee conditions is required before a determination can be made as to the permanency of these impairments. It follows that rule 5.6 applies and the Applicant's knee impairments are not currently permanent for the purposes of the Act.

1. For the reasons I have explained, I have ultimately concluded the only impairments suffered by the Applicant which can properly be considered permanent for the purposes of the Act are the impairments arising from her back, neck and shoulder conditions.
2. I will therefore proceed to consider whether these impairments result in substantially reduced functional capacity for the purposes of s 24(1)(c).

DO THE APPLICANT'S PERMANENT IMPAIRMENTS RESULT IN SUBSTANTIALLY REDUCED FUNCTIONAL CAPACITY? (S24(1)(C))

1. This issue of the correct interpretation of s 24(1)(c) was recently addressed by the Federal Court in National Disability Insurance Scheme v Sutherland [2026] FCA 3. In that decision, Justice Horan referred to the Tribunal's approach to s 24(1)(c) with approval, as follows (at [42]):

"The Agency did not take issue with the Tribunal's summary of the applicable principles derived from cases such Mulligan and Foster. It is clear that the Tribunal was cognisant of the questions to be addressed in determining whether an impairment results in substantially reduced functional capacity to undertake one or more of the activities specified in s 24(1)(c) of the NDIS Act. The Tribunal acknowledged that the inquiry was focused on a practical examination or assessment of what the person can and cannot do (T [81]), and that an inability to undertake one task forming part of an activity (e.g. the task of toileting as part of the activity of self-care) cannot be treated as a substantially reduced functional capacity to undertake that activity (T [82]). The Tribunal accepted that it was necessary to assess the person's capacity to undertake the various tasks and actions comprising the specified activity as a whole, and referred (without demur) to the Agency's submission that "a person does not necessarily have a substantially reduced functional capacity in relation to an activity because they have difficulty with one task related to that activity": T [83]."

1. One of the complaints made by the appellant in this case (the Agency) was that the Tribunal had placed particular emphasis on one single task within the activity of self-care, namely Ms Sutherland's capacity to bathe or shower. Given the Tribunal had found that Ms Sutherland was able to "feed herself, brush her teeth, wash her body, groom her hair, get dressed, transfer in and out of the bath or shower, use the toilet, manage her medications, and drive herself to local medical and dental appointments", the Agency contended it was not properly open to the Tribunal to conclude Ms Sutherland had substantially reduced functional capacity in the area of self-care.
2. However, Justice Horan ultimately rejected that contention, observing (at [57]-[58]):

"Nor do I consider that the Tribunal erred by conflating difficulties in completing certain tasks that form part of the activity of self-care, such as showering or bathing, with an inability or incapacity to undertake the activity of self-care. The decision in Foster does not stand for the proposition that s 24(1)(c) can only be met if the person has a substantially reduced functional capacity to undertake multiple tasks or actions forming part of the activity of self-care. While it is necessary to assess the person's functional capacity with respect to "the bundle of tasks and actions forming the concept of 'self-care'" (Foster at [65]), the fact that the person remains capable of carrying out some tasks and actions does not itself prevent him or her from meeting s 24(1)(c).

The Tribunal considered a wide range of tasks and actions forming part of the activity of "self-care". It did not limit its inquiry to a single task (such as showering or bathing, or toileting), nor did it equate Ms Sutherland's impairment with any such task and deem that to be the relevant activity for which functional capacity was to be assessed: cf. Foster at [65]. The Tribunal's reasons reveal that it carried out a "functional, practical assessment" of what Ms Sutherland could and could not do in relation to various tasks and actions within the concept of self-care. The issues arising from Ms Sutherland 's involuntary falls and incontinence were regarded by the Tribunal as "extreme": T [118]. Taken together with the difficulties faced by Ms Sutherland in bathing or showering regularly without someone present to assist her, and the inadequacy of the interim methods used by Ms Sutherland to clean herself, the Tribunal found that this amounted to substantially reduced functional capacity to undertake the activity of self-care."

1. It is clear therefore that the question of whether someone has substantially reduced functional capacity is to a large extent a question of judgement for the decision-maker. Even where a prospective participant is able to carry out most of the tasks within the activity of self-care, it may be open to conclude that, by reason of the particular impacts of their impairment and their inability to perform certain tasks within the activity, the prospective participant nevertheless has substantially reduced capacity within the meaning of s 24(1)(c).
2. Against this background, I will next proceed to discuss the evidence before me relevant to this issue.

1. As I have already alluded to, I have the benefit of 2 occupational therapy assessments of the Applicant, one by Ms Tina Du in September 2023 and one by Ms Trudie Warner on 27 September 2024. Both occupational therapists also gave evidence at the hearing.
2. In her report of 10 October 2023[64], Ms Du noted the Applicant was using a four-wheeled walker to mobilise around her home. Ms Du also reported that "she can walk for approximately 10-15 minutes before experiencing lumbar and knee pain and requiring a rest break". Ms Du also reported that the Applicant could not manage a flight of stairs, though she could manage 1-2 steps with assistance. Ms Du reported that the Applicant required assistance from her daughter with chair transfers "due to reduced lower limb strength and pain symptoms", and assistance with toilet transfers due to a low toilet seat height and the absence of grab rails. Ms Du also considered that she required assistance with transfers in and out of the car due to "reduced strength and mobility".
3. With respect to showering, Ms Du also reported the Applicant required assistance from her daughter during "personal care tasks" due to pain in her neck, shoulder, arms and hands. Ms Du noted she also required assistance with dressing due to pain in her hands, shoulders and back, together with "set up assistance" with eating due to pain in her wrists, neck, shoulders and arms. She also faced difficulties with meal preparation due to her carpal tunnel syndrome. Ms Du also noted the Applicant faced challenges with transportation and community access "as she is unable to drive".
4. The results of Ms Warner's assessment were similar. In her report of 14 October 2024, she indicated the Applicant required assistance with showering due to various factors including pain in her neck and back[65]. She also required assistance with toileting for various reasons, including pain in her back as well as mobility and balance issues[66].
5. Ms Warner also reported that the Applicant's walking tolerance was severely limited due to "chronic pain, fatigue and joint stiffness". She reported the Applicant "experiences feet, knee, hip and back pain that worsens with exertion, reducing her ability to walk for extended periods or distances"[67]. Ms Warner noted that at the time of the assessment the Applicant relied on a single point walking stick for support when walking. Ms Warner reported the Applicant could walk using the walking stick on even terrain for 5 to 10 minutes before needing to stop and rest. On flat surfaces she could manage up to 100 metres but "must stop frequently to recover from pain and fatigue". On uneven terrain her tolerance was less.
6. Ms Warner found the Applicant's standing tolerance was also reduced, again due to "chronic pain, joint stiffness and muscle fatigue"[68], including pain in her back. She reported that while holding on to furniture or her stick, the Applicant could stand for 5-7 minutes before "experiencing discomfort and fatigue" and that "Pain in her knees and lower back intensifies with prolonged standing, limiting her ability to remain upright for extended periods"[69]. She also reported the Applicant could not stand on one leg and "tasks that require weight-bearing on one leg, such as putting on pants or shoes, are impossible without support".
7. With respect to transfers, Ms Warner reported the Applicant's capacity was limited due to pain and stiffness including in her back. Similarly, her capacity to walk up and down stairs and use public transport was limited due to various factors including back pain.
8. In relation to self-management, Ms Warner reported the Applicant could not prepare full meals independently for a combination of reasons including her reduced mobility. Similarly, she could not independently complete cleaning tasks or undertake grocery shopping.
9. Ms Warner noted the Applicant's self-report was consistent with her presentation during the assessment[70] and confirmed this during her oral evidence.

1. It is clear from this evidence the Applicant has reduced functional capacity in a number or areas. However, the critical issue for me is the extent to which those reductions in functional capacity are attributable to the impairments I have found to be permanent.
2. Noting my conclusion that it is only the impairments caused by the Applicant's back, neck and shoulder conditions which are permanent, I have also concluded it is only the domains of mobility and self-care which are relevant in determining whether the Applicant's functional capacity is substantially reduced. I do not consider that, by reason of her relevant impairments, the Applicant has substantially reduced functional capacity in the areas of communication, social interaction, learning or self-management.

Does the Applicant have substantially reduced functional capacity in the area of mobility?

1. Having regard to the evidence of both occupational therapists, I am satisfied the Applicant does have reduced functional capacity in the domain of mobility. This emerges most clearly from Ms Warner's report, though the relevant aspects of her report are consistent with Ms Du's report. The more complex and difficult issue is the extent to which the reduction in the Applicant's mobility is attributable to her permanent impairments.
2. Ms Warner identified that the Applicant's walking tolerance was severely reduced, and at the time of the assessment, the Applicant was reliant on a walking stick. However, she attributed this to pain in the Applicant's feet, knee, and hip as well as her back, and fatigue. Similarly, Ms Warner found the Applicant's standing tolerance to be limited, but this was attributed to pain in her feet, knees, hips and shoulders as well as her back and fatigue[71]. Again, Ms Warner found the Applicant faced significant challenges with transfers, but this was due to pain and stiffness in her feet, knees and hips as well as her back. With respect to getting in and out of a motor vehicle, she found the Applicant needed to "sit down slowly and adjust her position to minimise discomfort in her back and hips"[72].
3. When it came to the Applicant's ability to use stairs, again Ms Warner found this was extremely limited "due to chronic feet, knee, hip, and back pain, lower limb weakness, fatigue, poor balance and fear of falling"[73]. The Applicant's ability to use public transport independently was also very limited due to her chronic pain, poor balance and fatigue.
4. Ms Warner also considered the Applicant required various forms of assistance with mobility, potentially satisfying the requirements of Rule 5.8.
5. However, it is clear from Ms Warner's report that in her view the limitations on the Applicant's mobility were attributable in large part to pain from body parts other than her back or neck. In particular, she considered the Applicant's feet, knees and hips were having a large impact on various aspects of her mobility. The problem this causes for the Applicant's case is that it is difficult for me to be satisfied that the impairments resulting from her neck, back pain and shoulder pain are in fact responsible for her the substantial reduction in her mobility.
6. Having carefully considered this question, I have ultimately concluded I am not satisfied the Applicant has substantially reduced functional capacity in the domain of mobility by reason of the impairments attributable to her neck, back and shoulder pain. I do accept these are contributing to her reduced mobility, however the current extent of her reduced mobility is also attributable to other impairments, such as that resulting from her knee pain, which are not necessarily permanent. On the evidence there is a possibility that if her other impairments, such as that resulting from her knee pain, were to improve with treatment, her mobility would also improve, potentially to the extent that it would no longer be substantially reduced.
7. In these circumstances, I am not satisfied that the impairments arising from the Applicant's back, neck pain and shoulder pain are responsible for her substantially reduced functional capacity in the domain of mobility.

Does the Applicant have substantially reduced functional capacity in the domain of self-care?

1. Again, I consider Ms Warner's report the most relevant and helpful evidence on this issue. I note Ms Warner's report is relevantly consistent with Ms Du's report, but Ms Warner's report is more detailed.
2. As with the domain of mobility, it is clear from Ms Warner's report that the Applicant has substantially reduced functional capacity with respect to self-care. She relies heavily on her daughter for assistance with many aspects of self-care including showering, dressing, grooming, eating and drinking, toileting and medication management[74]. However, the main issue is the extent to which her permanent back, neck and shoulder impairments are responsible for this reduced functional capacity.
3. With respect to showering, Ms Warner has reported the Applicant uses a shower chair and needs physical assistance getting in and out of the shower and washing her hair and body, particularly for areas above shoulder height. Ms Warner has identified the reasons the Applicant needs this assistance as "Pain in her neck, shoulders, back, hips, knees and wrists/hands"[75] as well as fatigue, anxiety and emotional distress.
4. As with the Applicant's mobility, it appears that other issues apart from her neck, back pain and shoulder pain are making a significant contribution to her reduced capacity for showering. However, having regard to the impact of her shoulder impairments on the Applicant's difficulties with washing herself and her hair, as well as the impact of her neck and back pain on her movement and pain levels with activity, I am satisfied that even without her other impairments, the Applicant would require assistance with showering.
5. When it comes to grooming, Ms Warner has reported the Applicant is very reliant on her daughter for hair care as she "struggles to reach overhead due to her shoulder pain and joint stiffness"[76]. She also relies on her daughter for shaving and nail care due to difficulty manoeuvring herself as well as dexterity issues. Ms Warner identified the physical reasons for the Applicant's reduced capacity in this area as including shoulder and hand pain, and I am satisfied the Applicant requires assistance with aspects of grooming partly due to her shoulder impairments. However, I also note that when she was asked about this at the hearing, the Applicant identified her inability to grip with her right hand as the reason she was unable to brush her hair.
6. Ms Warner also reported the Applicant was very reliant on her daughter for dressing, especially donning more complex garments such as bras, socks and shoes. Ms Warner identified the physical factors affecting the Applicant's performance in this area as "Chronic pain in her shoulders, elbows, hands, and knees"[77]. When she was asked about dressing during her evidence, the Applicant identified not being able to use her right hand as one of her main difficulties with dressing, together with her "surgeries" and pain in her body generally. She did not specifically refer to her shoulders. I nevertheless consider the Applicant requires assistance with some aspects of dressing due to her shoulder impairments, particularly those aspects of dressing which require lifting her hands above shoulder height.
7. In relation to eating and drinking, Ms Warner reported the Applicant needs assistance from her daughter to cut tougher foods, such as steak, and cannot carry a drink, such as tea or coffee, from the kitchen to the lounge "due to limited grip strength and reliance on a walking stick"[78]. Ms Warner identified the Applicant's physical limitations in this area as being hand pain, weakness and numbness as well as fatigue.
8. Ms Warner also found the Applicant faced some physical challenges with toileting. Ms Warner commented that her mobility issues made it difficult for her to get on and off the toilet, and she required support from bathroom fixtures. The Applicant also required assistance with post-toileting hygiene when her pain or stiffness is severe, "particularly in her shoulders and hands"[79]. Ms Warner identified the factors affecting the Applicant's capacity in this area as including "pain in her knees, back and shoulders". Again, while her other impairments are contributing to the Applicant's difficulties with toileting, even without those additional difficulties, I consider the Applicant would require some assistance with toileting because of her permanent impairments.
9. I should acknowledge the oral evidence to the effect that the Applicant takes herself to the toilet while her daughter is at work. However, I accept on the evidence that although she does this out of necessity, there is significant difficulty and risk associated with the Applicant taking herself to the toilet, and she needs to lean on bathroom fixtures which are not designed for that purpose.
10. In summarising the impairments which directly impacted the Applicant's ability to effectively undertake self-care activities, Ms Warner referred to _"_Chronic Pain: Severe pain in the neck, shoulders, back, hips, knees and hands" as well as stiffness in her joints "especially shoulders and hands" and "hand weakness"[80]. She also referred to mobility and balance limitations as well as cognitive and memory issues, fatigue, emotional and psychological challenges and lack of stamina.
11. As with mobility, one of the issues which arises from this evidence is the extent to which the Applicant's reduced functional capacity and need for assistance is related to her permanent back, neck and shoulder impairments.
12. This question is a finely balanced one and I have found it difficult to resolve. I accept the Applicant's other impairments are making a significant contribution to her reduced functional capacity for self-care. For example, the Applicant's hand issues are the biggest contributor to her limitations with activities involving dexterity, such as movements involved in eating and drinking. Issues with her right hand were also identified by her as a main reason why she could not brush her hair, and they appear to contribute to her difficulties with dressing. The Applicant's mental health issues also make a big contribution to her fatigue and lack of motivation and increase her dependence on her daughter for assistance with tasks such as medication management and attending appointments. There are also other factors which contribute to this dependence, including the fact the Applicant has never driven and cannot read or write. Pain in the Applicant's knees and hips is also making a significant contribution to her difficulties with activities such as showering and toileting, and chronic pain in multiple sites in the Applicant's body (including her neck, back and shoulders) is dramatically affecting her mood, sleep and fatigue, in turn affecting her capacity for many activities.
13. Having regard to the terms of rule 5.8, I note the precise question which relevantly arises under the Rules in this context is whether, by reason of her permanent impairments, the Applicant:

"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."

1. However, while the Rules may operate to deem that the requirements of s 24(1)(c) are met, they are not exhaustive. The ultimate question for me is whether the requirements of s 24(1)(c) are met, namely whether the Applicant has substantially reduced functional capacity in the domain of self-care by reason of her permanent impairments.
2. On my assessment of the evidence, I consider the Applicant's permanent impairments are contributing approximately 50% overall to her need for assistance with various activities involved in self-care. While the issue is finely balanced, I have ultimately concluded that even if this does not satisfy rule 5.8, it is sufficient to satisfy s 24(1)(c).
3. Approaching the issue in a different way, even without her other impairments I consider the Applicant would still require assistance with showering, dressing and toileting as well as some aspects of grooming. With several of the relevant activities, pain and stiffness cause significant or even severe limitations, and while this is not limited to pain and stiffness in her back, neck and shoulders, they appear to be the areas which are causing the greatest pain and limitation. In other words, doing the best I can to isolate the impacts of the Applicant's neck, back and shoulder pain, I am persuaded that these impairments in combination are resulting in substantially reduced functional capacity for self-care. I am also persuaded that even without the other impairments, the Applicant would still have substantially reduced functional capacity for self-care.
4. My confidence in the correctness of this conclusion is bolstered by the recent decision of his Honour Justice Horan in National Disability Insurance Agency v Sutherland [2026] FCA 3. Although that matter concerned a very different factual scenario, it is clear from his Honour's reasoning that, even where a minority of tasks are affected by a person's impairment, it may be open to conclude their functional capacity is substantially reduced. It would seem consistent with this reasoning that it may also be open to find substantially reduced functional capacity where most tasks in a particular domain are heavily affected by the relevant impairments, but there are also other contributing impairments.
5. In Sutherland the Tribunal was satisfied the Applicant's functional capacity was substantially reduced by reason of a dramatic impact on one or two tasks. Here, I am satisfied the Applicant's functional capacity is substantially reduced by reason of her permanent impairments having a major impact on almost all the tasks within the activity of self-care, notwithstanding the presence of other contributing impairments.
6. As the Applicant therefore satisfies the requirements of s 24(1)(c), the next issue which arises is whether she satisfies the requirements of s 24(1)(d).

DO THE APPLICANT'S PERMANENT IMPAIRMENTS AFFECT HER CAPACITY FOR SOCIAL OR ECONOMIC PARTICIPATION? (S 24(1)(D))

1. I note the Respondent concedes the Applicant's impairments affect her capacity for social and economic participation[81], and I am also satisfied that is the case. It follows that s 24(1)(d) is met and the only remaining issue arising under s 24 is whether the Applicant satisfies s 24(1)(e).

DOES THE APPLICANT REQUIRE LIFETIME SUPPORT UNDER THE NDIS? (S 24(1)(E))

1. The Agency contends that, even if she meets the other criteria, the Applicant does not meet the requirements of s 24(1)(e). The Agency submitted that, to the extent the Applicant required medical treatment and/or treatment from allied health professionals, this was available outside the NDIS and in particular pursuant to Medicare. In addition, to the extent the Applicant required in home care and/or support, the Applicant could access this via a My Aged Care package, as she was now over 65. Accordingly, in the Agency's contention, the Applicant could meet her needs elsewhere and did not require lifetime support under the NDIS.
2. However, after the hearing, on 14 January 2026, the Federal Court handed down the decision in Sutherland I have already referred to, in which it also addressed the proper construction of s 24(1)(e).
3. In the Tribunal decision under challenge in that matter, Senior Member Parker stated with respect to s 24(1)(e) as follows:

"In relation to the NDIA's contention as set out in paragraph [117] above and the section of the Access Guidelines underlined in paragraph [116] above, the Tribunal notes that the NDIA appears to have imported into this criterion a further requirement that the supports required by Ms Sutherland are not more appropriately sourced, funded or provided under some other service system. The Tribunal considers that the wording of s 24(1)(e) of the NDIS Act does not support the interpretation contended for by the NDIA. The Tribunal is not bound to apply this section (as underlined in paragraph [116]) of the Access Guidelines, as it considers it to be inconsistent the s 24(1)(e) of the NDIS Act. The Tribunal does not consider that it would be a proper interpretation of s 24(1)(e) to undertake an assessment of whether the supports required by Ms Sutherland could be provided by other service systems in order to decide whether this criterion is met. Rather, the wording of s 24(1)(e) simply requires the Tribunal to satisfy itself as to whether Ms Sutherland will require support under the NDIS for her lifetime, as per the wording of this provision. The Tribunal interprets this to mean that the Tribunal must focus on whether Ms Sutherland will need those supports under the NDIS for her lifetime and that this does not depend upon whether she can acquire the supports themselves elsewhere."[82]

1. In his consideration of this issue, His Honor Justice Horan essentially concluded that these observations were correct. Commenting on the Federal Court's reasoning in Foster, he observed (at [123]):

"The error made by the Tribunal in Foster was in finding that s 24(1)(e) was met on the basis that, because the full cost of Mr Foster's catheters was not covered outside the NDIS, the support was not comparable to what would be available under the NDIS: Foster at [95]. The Tribunal's reasoning was also premised on its "erroneous conflation" of the specific task or action of toileting with the activity of self-care, and infected by a flawed approach of asking whether Mr Foster required catheters "for the purpose of improving functioning relating to his self-care": Foster at [97]. The Court implicitly accepted that ss 24(1)(c) and (e) impose separate and cumulative requirements and that, if it is determined that the person has a substantially reduced functional capacity to undertake self-care, it remains necessary to determine whether the person is likely to require support under the NDIS for their lifetime. However, that does not dictate that s 24(1)(e) must be construed as imposing an additional requirement that the person must be likely to require support under the NDIS, in the sense that the person's lifetime support needs are not likely to be met under any other service systems outside the NDIS."

"Accordingly, I do not accept the Agency's submission that s 24(1)(e) "requires the further step of considering whether the support is one which ought to be provided under the NDIS or whether it [is] more appropriately sourced or funded through another system".

It follows that there was no error in the approach that was taken by the Tribunal at T [118]-[120] in applying the requirement under s 24(1)(e) of the NDIS Act. The degenerative nature of Ms Sutherland**'**s impairment was not in dispute and, as the Tribunal noted, there was no evidence to suggest that her medical conditions were likely to improve or that there was a chance that they may resolve: T [118]. The Tribunal accepted that Ms Sutherland's impairment from "spinal injury - severe stenosis" was "degenerative and likely to be lifelong with the symptoms worsening over time": ibid. Having already found that Ms Sutherland had substantially reduced functional capacity to undertake the activity of self-care as a result of that permanent impairment, the Tribunal correctly proceeded on the basis that it was unnecessary to inquire into whether the supports required by Ms Sutherland could be provided by other service systems for the purpose of determining whether she was likely to require support under the NDIS for her lifetime within the meaning of s 24(1)(e): T [119]."

1. Adopting the interpretation of s 24(1)(e) arrived at by Justice Horan, it is clear the Applicant also meets the requirements of this provision. Like Ms Sutherland, her impairments are clearly permanent and "likely to be lifelong with the symptoms worsening over time"[83]. There is little doubt therefore that she is likely to require support under the NDIS for her lifetime.
2. I should add that I considered giving the Respondent an opportunity to address the Court's decision in Sutherland before making my decision. However, as the reasoning of the Court on this point is clear and I see no point of distinction between that case and this, I ultimately concluded that further submissions from the Respondent would be likely to concur with the approach I have arrived at, and would be very unlikely to change my reasoning or conclusion on this issue.

DOES THE APPLICANT MEET THE EARLY INTERVENTION REQUIREMENTS?

1. Having concluded the Applicant meets the requirements of s 24, it is unnecessary for me to consider whether she also meets the requirements of s 25.

1. Before parting with the matter, I should also address two additional matters relied upon by the Respondent.
2. First, in her closing submissions, counsel for the Agency, Ms Douglas-Baker, relied heavily on a significant inconsistency in the evidence. That inconsistency arose from the content of Dr Sarmast's report of 29 June 2023, where she stated as follows:

"She mobilises independently unaided, and she is independent with her personal care. She reports limited walking tolerance and sitting tolerance secondary to pain. Despite this, she tries to remain active; she looks after all the domestic tasks herself, cooks, and manages shopping independently."[84]

1. As Ms Douglas-Baker pointed out, this part of Dr Sarmast's report is inconsistent with other evidence, particularly the Applicant's evidence and that of her daughter. There is no mention in this report of the Applicant being reliant on a walker or walking stick, as she was when Ms Du assessed her in September 2023. In this report Dr Sarmast also describes the Applicant as having much greater independence and functional capacity than she appeared to have when Ms Du assessed her.
2. Ms Douglas-Baker also pointed to the fact that Ms Du's attention had not been drawn to the fact the Applicant apparently was not reliant on a four-wheeled walker when she saw Dr Sarmast in June 2023. Further when Ms Warner assessed the Applicant, she was only using a walking stick rather than a walker, giving rise to a further inconsistency.
3. Ms Douglas-Baker submitted that these inconsistencies potentially called into question the Applicant's veracity or reliability and raised questions about how much of the information relied upon by those assessing the Applicant came from her, and how much came from her daughter.
4. I have taken into account these apparent inconsistencies, and the Agency's submissions about them. I acknowledge it is difficult to reconcile aspects of Dr Sarmast's report of June 2023 with the other evidence. However, I also consider it is difficult to reconcile parts of this report with Dr Sarmast's own previous reports. In her previous reports Dr Sarmast had consistently indicated that the Applicant "struggles with performing basic daily tasks such as cooking, cleaning and shopping"[85] and required assistance with domestic tasks.
5. I note that when she saw the Applicant in June 2023, Dr Sarmast had not seen her for almost 18 months and was seeing in her in a different location and as part of a different practice. It is not clear that she had access to her notes of previous consultations, which were not held at this practice[86]. One possibility is that she mistakenly overstated the Applicant's functional capacity in this report. I acknowledge this was not explored with her during her oral evidence. However, it is unlikely this would have assisted as it became apparent during Dr Sarmast's evidence she had almost no independent recollection of her consultations with the Applicant and was reliant on her notes.
6. In any event, I found the Applicant to be an honest witness with respect to the factual issues bearing on my conclusions in relation to permanence and functional capacity for self-care. I also consider there is a high degree of consistency between the objective medical evidence, the evidence of the Applicant and her daughter and the reports and evidence of the occupational therapists, Ms Du and Ms Waner. I note the Applicant and her daughter did indicate there was a period during which the Applicant did not have access to a walker, and this make explain some of the apparent inconsistencies.
7. While I acknowledge the inconsistencies I have referred to, I remain confident my conclusions on the key factual issues are well-founded in the evidence, taken as a whole.
8. Ms Douglas-Baker also asked me to pay significant regard to an issue which emerged at the hearing relating to the credibility of the Applicant's daughter. Under questioning by Ms Douglas-Baker, the Applicant's daughter acknowledged she had a relatively recent conviction for an offence in the nature of insurance fraud. Ms Douglas-Baker contended this raised significant issues as to the reliability of the evidence presented in support of the Applicant's case.
9. Again, while I acknowledge the need for caution with respect to the evidence of the Applicant's daughter, I am not persuaded this conviction calls into question the evidence of the Applicant herself, or the other evidence I have relied upon in reaching my conclusions with respect to the key issues. Again, I remain confident my conclusions on the key issues are well founded in the evidence, taken as a whole.

1. For the reasons I have given, I am satisfied the Applicant meets each of the disability requirements specified in s 24 of the Act. With respect to s 24(1)(c), I consider she satisfies that provision only with respect to impairments resulting from her back, neck and shoulder conditions.
2. I therefore propose to set aside the decision under review and substitute a decision that the Applicant satisfies the access criteria on the basis of her back, neck and shoulder impairments.

1. The decision under review is set aside and in substitution it is decided that the Applicant satisfies the access criteria specified in s 21 of the Act in respect of impairments attributable to her chronic back, neck and shoulder conditions.

Dates of hearing: 20, 21, 22 October and 3 December 2025

Representative for the applicant: Represented by her daughter

Representative for the respondent: Ms A. Douglas-Baker, Counsel and Ms S Miller, Sparke Helmore Lawyers

[4] The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024, Schedule 1, s 126.

[5] I note s 126 of Schedule 1 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track) Act 2024 provides that the Rules made pursuant to s 27 remain in force.

[6] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].

[7] National Disability Insurance Agency, Our Guidelines - Becoming a participant - Applying to the NDIS, (14 October 2024).

[8] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).

[9] Respondent's Statement of Facts, Issues and Contentions (SOFIC), at [32].

[10] [2022] FCA 1002.

[11] See Davis at [75] and [131]. See also [158].

[39] T14. In her oral evidence Dr Sarmast indicated this letter was prepared later and should have been dated 15 May 2021.

[82] Sutherland and National Disability Insurance Agency [2024] AATA 411, at [119].