(a) Psoriatic arthritis > > (b) Fibromyalgia; and > > (c) Chronic depression.[2]

3. Ms Migdakis advised at the commencement of the substantive hearing that she was not pressing to obtain access for her diabetes. She went on to advise that her diabetes was under control and was not causing her any issues.[3]
4. Ms Migdakis states she also suffers from:

(d) Overactive bladder > > (e) Droopy eyelid syndrome > > (f) Chronic insomnia > > (g) Back and shoulder pain > > (h) Multiple falls secondary to poor mobility > > (i) Fractures and injuries secondary to falls.[4]

5. On 8 November 2023, Ms Migdakis made an application to the NDIS for access to the Scheme in relation to impairments arising from Psoriatic Arthritis & Fibromyalgia.[5]
6. On 30 April 2024, a delegate of the CEO of the National Disability Insurance Agency (NDIA) made a decision not to grant the applicant access to the NDIS (the original decision) as she did not meet the disability requirements pursuant to s24 or the early intervention requirements pursuant to s25 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).[6]
7. On 29 July 2024, Ms Migdakis requested an internal review of the original decision pursuant to s99 of the Act.[7]
8. On 26 August 2024, a different delegate of the NDIA made a decision, pursuant to s100(6) of the Act, confirming the original decision (reviewable decision).[8] The review delegate was satisfied Ms Migdakis met the criterion in s24(1)(a) as they were satisfied her psoriatic arthritis and fibromyalgia resulted in chronic pain, which led them to be satisfied she lives with a disability attributable to a physical impairment. They were not however satisfied Ms Migdakis had met the criterion in s24(1)(b) as they were of the view the evidence did not show she had exhausted all treatment options.
9. On 16 September 2024, the applicant lodged with the Tribunal an application for review of the internal review decision,[9] which is the application for review currently before the Tribunal.
10. The Tribunal has jurisdiction to review the internal review decision under s 103(1) of the Act in combination with s 17 of the Administrative Review Tribunal Act 2024 (ART Act).
11. The Administrative Review Tribunal (ART) was established on 14 October 2024 and replaced the former Administrative Appeals Tribunal (AAT).
12. Ms Migdakis' review application was not finalised before the transition to the ART. Proceedings in the AAT that were not finalised before the transition to the ART must be continued and finalised by the ART.[10]
13. The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (the Amending Act) commenced on 3 October 2024 and made significant amendments to the Act. As the applicant's request for access to the NDIS was made before 3 October 2024, s126 of the Amending Act provides that the Act applies to this application as it existed before the commencement of the Amending Act. Likewise, the applicable Rules to be applied are those in place prior to the commencement of the Amending Act.
14. In this Statement of Reasons, the Administrative Review Tribunal will be referred to as 'the Tribunal".

1. The following is an overview of the decision-making framework that is to be applied when the Tribunal considers whether the applicant meets the access requirements to become a participant of the National Disability Insurance Scheme (the Scheme).
2. For access to be granted to the Scheme, and to become a participant, Ms Migdakis must be found to meet the access criteria; s 20(1). Section 21(1) of the NDIS Act provides that a person meets the access criteria for the purposes of becoming a participant in the NDIS if the CEO is satisfied that the person meets the age requirements (s 22), the residence requirements (s 23), and either the disability requirements (s 24) or the early intervention requirements (s 25). A person becomes a participant in the NDIS on the day that the CEO decides that the person meets the access criteria: s 28(1). For the purposes of this review, the Tribunal stands in the shoes of the CEO to undertake an independent review of Ms Migdakis' request to become a participant.
3. In this case, Ms Migdakis was 59 years old when she made her access request. Her age at that time was verifiable by reference to her Centrelink records, which the Agency did with her consent.[11] The Agency submits on this basis Ms Migdakis meets the age requirement for access to the NDIS. I am also satisfied on this basis that the Applicant meets this requirement.
4. The residence requirement for access to the NDIS is found in s 23 of the NDIS Act and Part 4 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Access Rules). Relevantly, a person will meet the residence requirement if they reside in Australia and are an Australian citizen. In this case, there is no issue Ms Migdakis lives in Australia and that she is an Australian citizen. At the time her access request was made this was verifiable by reference to her Centrelink records, which the Agency did with her consent.[12]
5. The issue for determination by the Tribunal is whether Ms Migdakis meets the disability requirements in s 24 or the early intervention requirements in s 25.
6. Section 24 (as in force before 3 October 2024) provides:

(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:

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

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

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

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

1. Section 25 (as in force prior to 3 October 2024) provides:

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

(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; or

(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

(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.

(1) 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.

(2) 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. Pursuant to ss 27 and 209 of the NDIS Act, the Minister made the Access Rules, which relevantly prescribe circumstances in which, or criteria to be applied in assessing whether, one or more impairments result in substantially reduced functional capacity to undertake one or more activities for the purposes of s 24(1)(c) of the NDIS Act. Rule 5.8 of the Access Rules provided:

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. The Federal Court, per Mortimer J (as Her Honour then was), has found that Rule 5.8 operates as a deeming provision, which "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), r 5.8(b) or r 5.8(c) are met":[13] If a person does not fall within the deeming effect of r 5.8, "[t]he statutory task remains to consider whether a person's functional capacity is substantially reduced in any of the six specified areas" set out in s 24(1)(c).[14]
2. The Agency has also adopted Operational Guidelines on "Applying to the NDIS", which set out policy guidance for assessing whether a person meets the access criteria, including the disability requirements and the early intervention requirements.
3. Operational Guidelines published on the NDIS website contain information about what the Agency considers when making decisions under the legislative framework. These are essentially policy documents. The Operational Guideline 'Applying to the NDIS' (Access Guideline) is relevant to this application. The Tribunal will take this into account unless there are cogent reasons not to.[15]

1. Ms Migdakis was self-represented at the hearing. The Agency was represented by Mr Dayne Kingsford of Counsel, instructed by Ms Emilia Howard of the law firm Sparke Helmore.
2. A joint tender bundle was filed with the Tribunal. The joint tender bundle contained documents provided by the parties during the review, including the T-documents provided by the Agency in accordance with s35 of the ART Act. The joint tender bundle was received in evidence at the hearing and marked "EB1".
3. Materials provided by Dr Clare Owens, Rheumatologist under Summons were received into evidence and marked "EB2".
4. A hearing was conducted by Microsoft Teams on 19, 20 and 21 January 2026. Oral evidence was provided by Ms Migdakis; Ms Antonietta Bua, Clinical Social Worker; Dr Pankaj Khanna, General Practitioner and Ms Sharon Leahy, Occupational Therapist.
5. When Ms Leahy commenced her evidence, she noted that there was a typographical error in her report. She had stated in her report that Ms Migdakis could walk up to 1,000 meters.[16] She sought to correct her report and state that should have read 100 meters. I accepted that correction.
6. It is noted that both Ms Bua and Dr Khanna were time limited in their evidence due to other professional commitments.
7. I have considered all the written evidence filed with the Tribunal and provided in the exhibit bundles, the oral evidence at the hearing and the parties' closing submissions. In my decision I will refer to particular aspects of the evidence. The fact that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before me into account in reaching my decision.

1. The issue for determination by the Tribunal is whether Ms Migdakis meets the disability requirements in s 24 or the early intervention requirements in s 25.

Does Ms Migdakis meet the disability requirements under s24?

1. In National Disability Insurance Agency v Davis [2022] FCA 1002, Mortimer J observed:

"What the legislative scheme focuses on is not the name of a person's disability, nor the diagnosis given to a person - but rather what are the impairments experienced by the person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the "functional capacity" of a person.".[17]

1. Consistent with s 24(1) and Mortimer J's observation of the legislative scheme as cited in paragraph ‎39, the Tribunal must focus on Ms Migdakis' impairments, not her diagnosis or condition, when considering whether she meets the disability requirements.

1. For the purposes of s 24(1)(a), the Tribunal must be satisfied that Ms Migdakis has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable.
2. The concept of 'impairment' is generally understood as involving the loss or damage to a physical, sensory or mental function.[18] The term 'disability' is used 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.[19]
3. The Access Guidelines define impairment as follows:

An impairment is a loss or significant change in at least one of:

• your body's functions
• your body structure
• how you think and learn.

1. The Access Guidelines define the types of impairments listed in 24(1)(a):
   • intellectual - such as how you speak and listen, read and write, solve problems, and process and remember information
   • cognitive - such as how you think, learn new things, use judgment to make decisions, and pay attention
   • neurological - such as how your body functions
   • sensory - such as how you see or hear
   • physical - such as the ability to move parts of your body.
2. Ms Migdakis is seeking access to the NDIS based on impairments arising from;

(a) Psoriatic arthritis; > > (b) Fibromyalgia; > > (c) Chronic depression.

1. In written and oral evidence, Ms Migdakis describes suffering from the following because of her psoriatic arthritis and fibromyalgia:

(a) Inflammation in her joints > > (b) Stiffness of her joints > > (c) Upper and lower limb weakness > > (d) Pain > > (e) Fatigue > > (f) Inability to sleep for long periods.

2. The Agency accepts Ms Migdakis has physical impairments resulting from psoriatic arthritis and fibromyalgia.[20] They contend the impairments from the psoriatic arthritis and fibromyalgia result in her having reduced function in her upper and lower limbs and rely upon the report of the independent assessment of Ms Leahy, Occupation Therapist, to support their contention.[21] Beyond reference to a reduced function in her upper and lower limbs, the Agency has not identified the impairments they contend stem from psoriatic arthritis and fibromyalgia.

(a) she has pain in her knees, ankles, toes, fingers, hips and lower back and the pain keeps her awake at night. She rarely has 5 hours of continuous sleep. She acknowledged that she uses a CPAP machine. She said that she changed the mask on the machine to make sure it was not her sleep apnoea impacting her sleep, and there was no improvement. She explained it is pain which keeps her awake. > > (b) she described her joints as throbbing even when she feels she has not exerted herself. > > (c) sitting in her recliner is possible for up to two hours and then she needs to go and lie down. > > (d) she sleeps for up to three hours in the afternoon often particularly if she has not slept well the night before. > > (e) leaving the house is difficult and she only goes for shopping or medical appointments as the effort to do so requires her to rest for several days afterwards as she describes she has a "flare up".

Dr Claire Owen, (Dr Owen) Consultant Rheumatologist at Austin Health

1. Dr Owen provided reports in support of Ms Migdakis' application dated 14 March 2023,[22] 22 August 2023[23] and 23 July 2024.[24] She did not provide oral evidence at the hearing.
2. In her report of 14 March 2023, Dr Owen stated Ms Migdakis was diagnosed with psoriatic arthritis in 2014, and further, opined:

In addition to the psoriatic arthritis, Penny also has a diagnosis of fibromyalgia. This is manifested by widespread pain in combination with other features of central sensitisation including significant fatigue. As a direct result, Penny finds that she is only able to do limited activities before she is forced to rest.[25] > > ... there is ongoing pain that is attributable to both the psoriatic arthritis and fibromyalgia.[26]

Dr Allana Bruce, (Dr Bruce) Locum Rheumatologist, Austin Hospital

1. Dr Bruce, in her report dated 28 April 2025,[27] confirmed that Ms Migdakis had been "diagnosed with psoriatic arthritis in 2015 and according to past correspondence she had synovitis in multiple joints including the small joints of the hands as well as the large joints of the upper limbs and involvement of the feet." She further explained Ms Migdakis experienced joint pain and stiffness as well as lower back pain and tenderness in her feet. Dr Bruce did not provide oral evidence during the hearing.

1. In his oral evidence Dr Khanna stated that Ms Migdakis' sleep apnoea may impact her fatigue as sleeping is the time to heal and if you don't sleep well, you will be fatigued. However, he went on to clarify that he would not be able to differentiate between the fatigue encountered due to sleep apnoea and difficulties with sleeping due to chronic pain.
2. He confirmed in his oral evidence that Ms Migdakis' source of pain would be both the psoriatic arthritis and fibromyalgia.

Ms Jazmin Cruze - Pain Physiotherapist - Pain Clinic - Austin Hospital

1. Ms Cruze wrote a report[28] in which she confirmed Ms Migdakis had attended the Austin Pain Service from August 2021 to May 2022, having been referred by her Rheumatologist for the management of her chronic widespread pain and joint pain associated with psoriatic arthritis and fibromyalgia. The program included physiotherapy, psychology and a graded exercise program. She noted Ms Migdakis experienced pain from her lower back, hips, knees and ankles as well as elbows, wrists and fingers. She also had movement restrictions in multiple joints of her body due to pain, weakness, stiffness and swelling. Ms Migdakis reported to Ms Cruze she needed the assistance of her son and was unable to complete her personal, domestic and community-based activities. She opined "Penny's pain and disability had been long-standing and likely to persist for some time."[29]

Ms Sharon Leahy, (Ms Leahy) Occupational Therapist, OT Work Solutions

(a) Psoriatic arthritis results in musculoskeletal impairments involving joint pain, swelling and reduced range of motion and can also result in fatigue.[30] > > (b) The functional impairments of fibromyalgia result in generalised pain and as such it is difficult to apportion or attribute whether the functional impact of Ms Migdakis conditions can be apportioned to the psoriatic arthritis or the fibromyalgia.[31] > > (c) Her fibromyalgia causes widespread musculoskeletal pain, fatigue, and cognitive difficulties, further limiting her ability to engage in physical and cognitive tasks.[32]

2. The evidence provided by Ms Migdakis, Dr Owen, Dr Bruce and Ms Leahy referred to above overwhelmingly establishes that Ms Migdakis has significant levels of pain, stiffness of joints and fatigue arising from psoriatic arthritis and fibromyalgia.
3. On this basis, the Tribunal is satisfied that Ms Migdakis has one or more impairments to which a physical disability is attributable. Those impairments include inflammation in her joints, stiffness of her joints and fatigue (physical impairments).
4. The Agency did not make any submissions that particularly addressed Ms Migdakis' experience of pain.
5. In the matter of Burrows[33], SM French found pain to be a sensory impairment at [40]:

... Pain constitutes a loss or variation to typical body function (typical body function does not involve persistent experience of pain). Pain is a sensory experience produced by the nervous system usually in response to damage to body structure. Within the framework of the ICF pain is categorised with other sensory functions, including sight and hearing. I adopt that categorisation here even though the Agency's operational policy appears to limit sensory impairment to sight and hearing impairment. The alternative would be to find, at least in this case, that the Applicant's experience of pain is a neurological impairment because it is produced by her nervous system. In either case it is an impairment for the purposes of s 24(1)(a).

1. On the evidence provided by Ms Migdakis, Dr Owen, Dr Bruce and Ms Leahy which address the level of pain Ms Migdakis has experienced in addition to the evidence in relation to her attendance at a pain clinic, the Tribunal is satisfied that Ms Migdakis has one or more impairments to which a sensory disability is attributable. That impairment is generalised pain (sensory impairment).

1. The NDIA does not however, accept Ms Migdakis has impairments resulting from her long-standing diagnosis of chronic depression.[34] They further contend that although Ms Leahy opines the Applicant's fibromyalgia has caused cognitive impairments, there is no other direct evidence attesting to this from an appropriate treating professional. They contend the evidence from the Applicant's rheumatologist and clinical social worker do not detail any cognitive impairment and how such an impairment arises from fibromyalgia.[35]
2. During her evidence, Ms Migdakis explained she suffers from the following impairments as a result of her chronic depression:

(a) Low mood; > > (b) Lack of motivation; > > (c) loss of short-term recall.

(a) Confirmed she was diagnosed with depression in 2012 when her husband passed away. > > (b) She had seen a physiatrist however they told her there was nothing more they could do for her, and she was referred to her GP and a psychologist, who she engaged with. She explained she had access to a psychologist through DPV Health, around six or seven sessions and through the pain clinic. She has not been able to see one since even through Medicare as she not been able to find one who bulk bills and she cannot afford the gap payment. She said she has spoken to her GP, Ms Bua, Dr Owen and all her treaters but cannot find anyone she can afford. > > (c) Explained if she does not have an appointment that she needs to attend she is often not motivated to get out of bed or to shower. She also explained that she is estranged from her children other than her youngest who lives at home with her. > > (d) Said the depression impacts her daily life as her moods are very low and she doesn't want to speak to anyone or go out. She said she doesn't want to meet people or catch up with people, not even with her family. This is because she doesn't want people to say she looks fine and there is nothing wrong with her. She feels she looks ok on the outside, but she is in pain within her joints and she is struggling. She feels hurt by people's comments. > > (e) She is granted 3 hours per week of support worker assistance through the local council; however, she does not use it to leave the house. She said she only shops every two weeks and has had the support worker sessions reduced to 2 hours. She is often not motivated to go out. She went on to explain she often is not motivated to get dressed and will stay in her night dress all day. > > (f) She has been to craft retreats once or twice a year. She said she is never going again as ladies at the retreat complained about her to the organiser saying she complained too much about her pain and was crying. She said she hasn't been to one since May 2025 and she feels like she was rejected.

4. She further stated, "Despite prioritising and pacing what I need to do, and having regular rests through the day, I often do not meet my basic daily needs. Which leaves me feeling completely inadequate and hopeless exacerbating my depression."[36] She stated in oral evidence that she is socially isolated as she is unable to have people come to her house to visit as they are judgemental about the state of her house.
5. In her Statement of Lived Experience, Ms Migdakis outlined "Social interaction with friends has declined severely since my disabilities have worsened, and my pain and depression has increased exponentially. This leaves me feeling socially isolated and worsens my depression and anxiety."[37]

1. Ms Bua provided oral evidence at the hearing, and a report dated 2 October 2025[38] in which she detailed she first saw Ms Migdakis in 2010 for counselling after she was referred by Dr Kadom for depression. She also confirmed Ms Migdakis started on anti-depressants which led to her seeing Dr Channarayapatna Prasanna, a psychiatrist, to support her with her depression and to monitor the medication.[39]
2. She is of the opinion;

(a) "The psoriatic arthritis has impacted every part of Penny's life, especially her mental health. Penny worked as a beautician since 1990 but has been unable to continue that work because of the physical pain she experiences in her joints and the restrictions the psoriatic arthritis places on her body. Penny cannot undertake the daily household tasks she has normally done, including cleaning her house."[40] > > (b) "The constant pain and impact that the psoriatic arthritis has had on her life has caused Penny to become depressed and socially isolated. She has struggled to leave her house due to the pain, which has compounded the depression and consequently prevented her from remaining connected to her family and friends. Penny has also not been able to attend her counselling sessions in person due to the pain and depression. She said she feels so withdrawn and depressed that she cannot leave her house."[41] > > (c) "Penny's physical and mental health have deteriorated over the last 13 years whereby she now requires substantial support to function on a daily basis.[42]

3. Ms Bua did not alter her written evidence in oral evidence. During oral evidence Ms Bua confirmed:

(a) Her professional qualifications are in social work and family therapy which allows her to work with people presenting with emotional and psychological conditions such as anxiety depression, borderline personality disorder, schizophrenia. Anyone who she sees who has been diagnosed with a mental health condition has been diagnosed by a GP, psychiatrist or psychologist. Ms Migdakis has been working with her rheumatologist in relation to her pain and with Ms Bua in relation to the impact upon her mental health. > > (b) that she had been assisting Ms Migdakis since November 2010 and particularly in relation to depression after Ms Migdakis' husband died. > > (c) Ms Migdakis developed psoriatic arthritis and had associated debilitating pain. The pain impacted her mental health to the point she was unable to get out of bed. > > (d) The counselling sessions they have had have been by telephone as Ms Migdakis has been unable to physically leave her bed or the house due to depression. > > (e) Over the years she has been working with Ms Migdakis it is a lot harder for Ms Migdakis to come out of her chronic depressive states, and it was easier to find strategies to improve depressive symptoms. > > (f) One of the symptoms of fibromyalgia is depression. When a person is living with a condition where they cannot see there is an end to their condition it can be debilitating.

1. In his response to Ms Migdakis Access Request Form dated August 2016, Dr Khanna listed chronic depression as a disability suffered by Ms Migdakis.[43] He also noted in response to the question about whether Ms Migdakis required assistance from another person with the statement "long standing depression, on medication, under psychiatrist care, ongoing CBT through psychologist."[44]
2. When asked in oral evidence if a symptom of fibromyalgia was depression, he responded the treatment for fibromyalgia was almost always some kind of antidepressant.
3. When asked about Ms Migdakis' cognitive ability in oral evidence Dr Khanna stated they had not tested Ms Migdakis for any memory issues. He said that her mental health had not been good for many years and any memory loss or impairment would be due to her mental health.

1. Ms Leahy notes of Ms Migdakis "...fibromyalgia causes widespread musculoskeletal pain, fatigue and cognitive difficulties, further limiting her ability to engage in physical and cognitive tasks."[45]
2. Noting the Agency's concerns about Ms Leahy's clinical qualification to comment upon Ms Migdakis' cognitive impairments, I accept the evidence of Ms Migdakis, Ms Bua and Dr Khanna that Ms Migdakis has impairments arising from depression.
3. The Tribunal accepts the evidence of Ms Bua and Dr Khanna that they have treated Ms Migdakis for more than 10 years for depression, in addition to the evidence of Ms Migdakis about how her low mood and reduced motivation impact her. On this basis, the Tribunal is satisfied that Ms Migdakis has one or more impairments to which a psychosocial disability is attributable. Those impairments include depressed mood, and reduced motivation (psychosocial impairments).

Are Ms Migdakis impairments permanent - Section 24(1)(b)

1. For the purposes of s 24(1)(b), the Tribunal must be satisfied that Ms Migdakis' impairment or impairments are, or are likely to be, permanent. Within the context of s 24(1)(b), a permanent impairment is an impairment which is of an enduring nature.[46]
2. In addition to the Act, the Access Rules are also to be considered when determining the question of access to the Scheme. Rules 5.4 to 5.7 deal with the question of when an impairment is permanent or likely to be permanent for the disability requirement. Those Rules provide:

When is an impairment permanent or likely to be permanent for the disability requirements? > > 5.4 An impairment is, or is likely to be, permanent ... only if there are no known available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. > > 5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve. > > 5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated. > > 5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

3. In Davis, Mortimer J confirmed that within the context of Rule 5.4, the word 'known' means a treatment which can be identified by an Australian medical professional as suitable for a person's particular impairment; the word 'appropriate' means a treatment which has a capacity to 'remedy' the impairment and is suitable for the particular individual to undergo; and the word 'available' means available to a particular individual.[47] The word 'remedy' in Rule 5.4 means something approaching a removal or cure.[48]
4. Mortimer J went on to explain further in Davis, [86] The critical point is that "permanent" is used as an adjective in s 24(1) to the noun "impairment" (or in the plural, "impairments"). The focus of the text, consistently with the purposes of the scheme, is on whether the "impairment" 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.

Physical Impairment - Psoriatic arthritis and fibromyalgia and Sensory Impairment - Pain

1. The Agency accepts that s24(1)(b) of the NDIS Act is met with respect to Ms Migdakis' physical impairments arising out of her psoriatic arthritis and fibromyalgia, based on the long-standing nature of the Applicant's physical impairments arising from psoriatic arthritis and fibromyalgia and the evidence relating to her history of treatment.[49]

(a) she undertook the pain clinic program during covid and that was held via video. This clinic included physiotherapy and psychological support. > > (b) she was seeing a physiotherapist through DVP Health however she was discharged from that service and is on a waiting list waiting to access further physiotherapy through the public system. > > (c) she sees a myotherapist every three weeks which she pays from her own pocket. She finds that gives her some relief, but she cannot afford to go more often. > > (d) she has seen a podiatrist in the past, but she is not currently seeing one. She is on the waiting list to be linked with a new one through the public system. > > (e) she takes medication for her pain and remains under the care of a Rheumatologist through the Austin Hospital. She sees Dr Owen when she has "flare ups" or needs her prescription for Humira injections renewed.

(a) "...was seen by the Chronic Pain Service at the Austin Hospital for more than 12 months from 2021 to 2022. She has now been discharged as she was deemed to have stable, permanent disability after trialing(sic) multiple modes of treatment including medical management, psychology, and physiotherapy. Penny actively and willingly engaged in all these treatments. From their perspective, all treatment options were exhausted."[50] > > (b) Surgery is not an appropriate treatment option for either psoriatic arthritis nor fibromyalgia as it would not resolve her pain and disability. The comorbidities of Ms Migdakis also made her an unsuitable candidate for surgery.[51] > > (c) Ms Migdakis had participated in a physiotherapy program via DVP Health, "...Unfortunately, due to Penny's chronic pain in the setting of psoriatic arthritis and fibromyalgia, her level of function has continued to deteriorate despite these programs."[52] > > (d) "Since her diagnosis of psoriatic arthritis in 2014, she has been unable to continue her usual employment as a beauty therapist. Penny's fibromyalgia and psoriatic arthritis are both permanent conditions, and there is not expected to be a significant improvement in Penny's function."[53]

(a) The history of medications that Ms Migdakis has been prescribed over a long period of time to try to manage her psoriatic arthritis. > > (b) Ms Migdakis may benefit from weight loss medication. She also noted Ms Migdakis had lost 15kg in the previous year.[54] Ms Migdakis stated she is currently taking Ozempic medication, and that there are medications she is currently taking which impact her ability to lose weight. The Tribunal notes Ms Migdakis has attempted to lose weight in the past and has connected with the Austin Hospital weight control clinic in 2020.[55]

2. I note the Agency did not put any contrary evidence to any witness or Ms Migdakis.
3. The evidence before the Tribunal connotes many years of clinical treatment by a multi-disciplinary team including a rheumatologist, general practitioner and allied health professionals to treat her impairments. The depth of information contained in the evidence of Ms Migdakis' treating practitioner's reports summarised lead me to find they have not identified treatments that appear to be known, available and appropriate to treat her physical nor sensory impairments.
4. Having regard to the evidence of Ms Migdakis, Dr Owen, Dr Bruce and Ms Leahy above, I am satisfied that Ms Migdakis' physical disability attributable to her physical impairments are, or are likely to be, permanent.
5. Further, based on the evidence before me, I find Ms Migdakis' sensory disability attributable to her sensory impairments are or are likely to be, permanent.

1. The Agency contends there is a lack of evidence before the Tribunal to support Ms Migdakis' assertion her depression satisfies the criteria for permanence.
2. Having regard to s 24(1)(b) of the Act, and Rule 5.4 of the Becoming a Participant Rules, the questions that the Tribunal must pose and answer to determine if the Applicant's impairments are, or likely to be, permanent, are:

(a) Are there any known, available and appropriate evidence-based medical or other treatments that would be likely to remedy the impairments? and

(b) Do any of the Applicant's impairments require medical treatment or review before a determination can be made about whether the impairments are permanent or likely to be permanent?

1. Assistance with the interpretation of "known", "appropriate" and "available" can be found in Davis [139] "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."

1. What the Agency has failed to identify is any known, available and appropriate evidence-based medical or other treatments that would be likely to remedy the impairments. As SM French set out in Burrows [51]: "s 56(1) of the ART Act, relevantly, imposes an obligation on the CEO to use her best endeavours to assist the Tribunal to make the correct decision. Therefore, where she puts a statutory criterion to be satisfied in issue, she bears a practical onus of establishing reasonable grounds for doing so. The Tribunal is not assisted by the mere assertion that the statutory criterion is not satisfied. It needs to know why that is said to be the case, relevantly, by reference to the specific treatment or treatments the CEO contends should have been attempted by the Applicant but have not been. Without knowing what these treatments are, the Tribunal is unable to consider, as it is required to do, whether these treatments are 'known, appropriate and available' or if further assessment is required before an impairment could be considered permanent. The Applicant is, moreover, left in the procedurally unfair position of not knowing what, specifically, is the case she must answer."

1. Ms Migdakis states she does not currently see a psychologist as she cannot afford one as she has not been able to locate one who will bulk bill.[56] She states that she is not currently taking antidepressants as she was advised by Dr Buchanan, her rheumatologist at the time, they were not able to be taken in conjunction with amitriptyline.[57]
2. During her oral evidence Ms Migdakis said she was on a waiting list to see a psychologist through the public system and she had found it helpful in the past and seeing a psychiatrist is beyond her financial capacity.[58]

1. Ms Bua provided a letter of support[59] in which she detailed the history of Ms Migdakis' experiences of depression as reported to her by Ms Migdakis. She further stated Ms Migdakis is unable to perform daily household tasks such as cleaning her house. She opined "the pain and impact of psoriatic arthritis has had on her life has caused Penny to become depressed and socially isolated."[60] She went on to state the pain and depression has impacted Ms Migdakis' ability to attend counselling in person and she feels so withdrawn and depressed she cannot leave the house.[61]
2. As part of her written evidence, Ms Bua explained Ms Migdakis' physical and mental health have deteriorated over the last 13 years whereby she now requires substantial support to function on a daily basis in view of the numerous debilitating physiological issues, as well as mental illness.[62]

1. In his response to Ms Migdakis' Access Request Form dated August 2016, Dr Khanna listed chronic depression as a disability suffered by Ms Migdakis.[63] He also noted in response to the question about whether Ms Migdakis required assistance from other person "long standing depression, on medication, under psychiatrist care, ongoing CBT through psychologist."[64]
2. In his oral evidence, Dr Khanna confirmed he had been Ms Migdakis' general practitioner for approximately 17 years. He confirmed:

(c) he has been treating her for long term depression; > > (d) she had been taking medication for the depression for a long period of time, however her rheumatologist had required her to stop taking it as it was counter to the medication amitriptyline which she also required; > > (e) Ms Migdakis had been seeing Ms Bua for counselling also for a long period of time and was continuing to do so; and > > (f) Ms Migdakis has been attempting to gain access to a psychiatrist through public services but has been unable to do so.

1. The material from the Austin Hospital detail Ms Migdakis' treatment with a multidisciplinary team including the pain clinic service. The clinical notes detail her ongoing low mood, feeling anxious and depressed. Dr Bruce's clinical notes in EB2 notate Ms Migdakis had been discharged from the pain clinic.[65]
2. There is evidence before the Tribunal that Ms Migdakis has been engaged with psychological support through a psychiatrist in the past after the death of her husband,[66] a psychologist, Dr Gurr through the pain clinic in 2021 and the ongoing care of Ms Bua, a clinical social worker every 6 weeks.
3. There is again evidence of many years of clinical treatment by a multi-disciplinary team including a psychiatrist, psychologist, clinical social worker, general practitioner and engagement with a pain clinic who were all working to treat her psychosocial impairments. The depth of information contained in the evidence of Ms Migdakis' treating practitioner's evidence led me to find they have not identified treatments known, available and appropriate to treat her psychosocial impairments.
4. I accept that Ms Migdakis may be treated by a psychologist, however I do not find it is available to her given she is limited in her income as a disability support pensioner. I accept her evidence that she cannot afford to pay the gap cost for services provided under the Medicare system. I also accept her evidence that she is on a waiting list for a bulk billing psychiatrist. This was supported by the evidence provided by Dr Khanna.
5. In addition, I accept the oral evidence of Ms Migdakis, confirmed by Dr Khanna, that Ms Migdakis is not currently able to take antidepressant medication under medical advice from her Rheumatologist that the medication she was taken was contra-indicated.
6. I am satisfied there are no known available and appropriate treatments likely to remedy the psychosocial impairments and, on that basis, I am satisfied Ms Migdakis' psychosocial disability arising from her psychosocial impairments is permanent.

Section 24(1)(c) - Substantially Reduced Functional Capacity

1. Unlike the overall structure of s 24(1), the internal structure of s 24(1)(c) is not conjunctive. That is, it is only necessary for a prospective applicant to establish that they experience substantially reduced functional capacity in one of the six designated life activity areas to satisfy this criterion. It is not necessary that they establish substantially reduced functional capacity in every, or more than one, life activity area.[67] The Tribunal need only be satisfied that Ms Migdakis has substantially reduced functional capacity in one of the designated life activity areas;[68] communication, social interaction, learning, mobility, self-care and/or self-management. In making this finding, Rule 5.8 of the Access Rules provides that:

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. The Tribunal must first consider whether Ms Migdakis' circumstances are within those set out in r 5.8 of the Access Rules. If they are, she will be deemed to have a substantially reduced functional capacity.[69] If they are not, the Tribunal must consider whether Ms Migdakis functional capacity is nevertheless substantially reduced in any of the prescribed activities.[70]
2. The Access Guideline provides non-exclusive content to the range of tasks and actions that comprise each of the activities prescribed in s 24(1)(c).
3. When considering whether the requirement in s 24(1)(c) is met, the Tribunal must make a functional, practical assessment of what Ms Migdakis can and cannot do.[71] That assessment involves consideration of the full range of tasks or actions that comprise each of the prescribed activities.[72]
4. The Full Federal Court in Lampard[73] considered 'capacity' in s 24(1)(c) and the distinction between a person's capacity to do something as opposed to a person's willingness to do something.[74] The court found a focus on the latter led the Tribunal into error. The court also highlighted the different context in which the word 'capacity' is used in s 24(1)(c) as contrasted with s 24(1)(d):[75]

"It is also important to note the different way in which "capacity" is referred to in s 24(1)(c) and s 24(1)(d):

(a) In paragraph (c), it is a direct reference to capacity itself:

substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: ... .

(b) By contrast, paragraph (d) is concerned with aspects of an applicant's impairment(s) that impact on their capacity:

the impairment or impairments affect the person's capacity for social or economic participation.

Thus, paragraph (d) can be seen to permit opportunity reasoning, while the paragraph (c) is concerned with what an access applicant can actually do, as recognised in Mulligan at [55]."

1. The Agency contends that s24(1)(c) of the NDIS Act is not met by Ms Migdakis. They contend that the Applicant does not satisfy the deeming provisions in r5.8 of the Access Rules. They accept Ms Migdakis has some reduced functional capacities, in one or more of the activities listed in s24(1)(c), from the physical impairments that flow from her psoriatic arthritis and fibromyalgia. However, they contend Ms Migdakis does not meet the threshold for substantially reduced functional capacity in s24(1)(c) in respect of any of the six domains.
2. It is here the Tribunal and the Agency differ. The Tribunal has found Ms Migdakis has physical, sensory and psychosocial impairments. The Tribunal will now consider all three forms of impairments and whether they result in Ms Migdakis having a reduced functional capacity within the meaning of r 5.8 and s 24(1)(c).

1. The Guidelines describe 'communicating' as 'how you speak, write, or use sign language and gestures, to express yourself compared to other people your age ... how well you understand people, and how others understand you.'[76]
2. The Agency contends Ms Migdakis does not meet this domain as she has not identified any issues with respect to communication. Further, they contend there is no evidence to suggest her impairments have influenced her capacity to communicate.[77] The seek to rely on the evidence of Ms Leahy to support their contention.[78]

1. In her written evidence, Ms Migdakis stated, "the way I communicate with people has been impacted. When the pain is peaking it is hard to focus and concentrate in a conversation - and I easily lose the thread the conversation."[79]
2. When asked during oral evidence, Ms Migdakis stated the depression, fibromyalgia and psoriatic arthritis do not always impact her ability to communicate.

1. During cross examination, when asked how he found Ms Migdakis' ability to communicate with him in relation to her medical conditions and more generally, Dr Khanna said he did not have any concerns about her ability to communicate her health concerns with him. Any concerns in relation to memory loss or impairment would be related to her mental health but he had not found it necessary to undertake any formal testing for her memory.
2. He confirmed that Ms Migdakis does use notes to remind her of what she wanted to raise at the appointments with him and that was common with many of his patients. He considered that was a method to make efficient use of their appointments.

1. Ms Leahy found, in her report, Ms Migdakis does not have reduced capacity in the domain of communication. She can communicate effectively and clearly.[80] This evidence was supported in her oral evidence where she described being able to obtain a clear personal and medical history from Ms Migdakis and given appropriate responses to the interactions with her.
2. The Tribunal found the oral and written evidence of Ms Migdakis to be clear and able to be followed. She did not exhibit any signs of having difficulty following the discussions during the hearing, nor have any difficulty understanding the questions posed to her. When Ms Migdakis was given an opportunity to ask questions of the witnesses during the hearing she was able to ask questions and appeared to engage in the hearing process without communication concerns.
3. I am satisfied on the evidence before me Ms Migdakis does not have any difficulties in communicating. Ms Migdakis' presentation during the hearing which was clear and comprehensible, and she presented as being able to comprehend those communicating with her.
4. The Tribunal finds Mrs Migdakis' circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied Ms Migdakis' permanent impairments result in substantially reduced functional capacity to undertake the activities of communication.

1. The Guidelines describe 'socialising' as 'how you make and keep friends, or interact with the community ... your behaviour, and how you cope with feelings and emotions in social situations'.[81]
2. The Agency contends the description reflects a 'focus on interpersonal skills, far more than the location or frequency of opportunities to practice such interpersonal skills'[82] and hence, 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.'[83] Socialising does not mean interacting with the whole community, but with elements of the community.[84] In their closing submissions, the Agency contended "Ms Migdakis did not state she experiences any impairment as it relates to behaviours when engaging with social situations."
3. The Agency contends Ms Migdakis does not have a substantially reduced functional capacity to engage in social interaction. In particular, they rely upon the evidence of Ms Leahy's opinion that Ms Migdakis was able to form and maintain relationships with her family and friends and communicate in a socially appropriate manner.[85] They further contend Ms Leahy's evidence referred to inconsistencies in this domain in that Ms Migdakis is able to attend crafting events in unfamiliar environments but is unable to attend social events in more familiar environments with family and friends.[86]
4. I am guided by the Federal Court's decision in Lampard which approved the Tribunal's reasoning at [49]-[64] in Foster as it related to capacity for social interaction. At [64] the Tribunal described the tasks associated with social interaction as:
5. For reasons I have explained in Burrows [57] the bundle of tasks that constitute the social interaction and self-care life activity areas should be designated as follows:

Social interaction (or "socialising" as it is referred to in the policy)

- tasks associated with making and keeping friends,

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

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

1. A summary of Ms Migdakis evidence in her statement[87] relevant to social interaction includes:

(a) her relationships with her friends and family have been impacted as she is unable to see them very often. She explained this is because she feels planning ahead is impossible, as she doesn't know how bad the pain will be. She will still try and make plans but most times she can't follow through. She stated he has missed lots of social gatherings and birthday parties.

(b) She often feels very lonely and would love to be social but finds it too difficult. She stated her friends had drifted away.

(c) She feels her condition has impacted her ability as a parent, particularly due to her moods. She feels her low mood has impacted her son who is her carer and he too has developed depressive symptoms.

(d) She states her condition has made her socially withdrawn.

1. In her discussion with Ms Leahy during the functional capacity assessment Ms Migdakis recalled:

(a) that she maintains contact with her mother and has periodic contact with her daughter, granddaughter and her second son (in addition, she lives with her younger son).[88] > > (b) she does not interact with her friends very often because she finds it difficult with her mobility to go out for lunch and coffee.[89] > > (c) her friends rarely visit her and that she keeps in contact with them via her mobile phone.[90] > > (d) she used to love attending Australian Rules football games and follow the Richmond Tigers. She said she is no longer able to drive to the train station to attend the games nor access buses due to the height of the stairs.[91]

(a) she only leaves to the house to go grocery shopping and to attend medical appointments. > > (b) she spoke of her mother coming to visit her and of her visiting her mother. > > (c) she does not attend other people's homes as their furniture is too difficult to sit on, most couches are too low. She then feels she needs to take days to get over visiting others. > > (d) other people are put off talking with her as she is always talking about her pain and that is uncomfortable for people. This is why she is not going to attend any crafting retreat again. > > (e) she does not have people come to her house as she feels she is unable to keep her house as organised and clean as she would like and she feels people will judge her if they come into her come. > > (f) she attends crafting events where she drives to a location within approximately 1 and a half hour's drive and spends more than a weekend at the event engaging in crafting with other participants. > > (g) she finds it very difficult to be around people who do not understand the challenges she faces with pain and mobility and it leaves her more depressed. > > (h) she did go to some family events over Christmas and the new year period but she was in sever pain for a long time after attending the events. > > Mr Andrew Fraser (Mr Fraser) - OT DPV Health

2. Mr Fraser engaged with Ms Migdakis through Occupational Therapy services provided by DPV Health services, a public health service. He wrote a report dated 2 September 2022 where he highlighted Ms Migdakis had been receiving services for approximately 2 years.[92]
3. In his report he noted Ms Migdakis:

(a) Fatigue, joint pain and psoriatic symptoms make it difficult for Ms Migdakis to maintain social connectedness. This makes her feel isolated and frequent 'flare-ups' exacerbate her depression and anxiety. > > (b) Is receiving the input from a pain psychologist and a counsellor. She doesn't open up easily to workers until she becomes comfortable with them and so struggles with dealing with ever changing services involved. > > (c) Finds it difficult to manage all her medical appointments due to memory issues.

1. When addressing specific activities within this domain, Ms Leahy opined in her report:
   • Ms Migdakis has the physical capacity to access the community to attend lunch with friends using assistive technology.[93]
   • Ms Migdakis is able to interact with others in social situations, including telephone, face-to-face, and potentially through social media or in community environments.[94]
   • Her limitations in socialising are as a result of her pain, fatigue and in accessible environments.[95]
   • Ms Migdakis can access her health services and attend overnight stays with her crafting group provided she self-paces, pre plans and utilises a trolley to load and unload her car. She is able to seek the assistance of another person should she require assistance to access the facility.[96]
2. Her overall summary of Ms Migdakis' functional capacity in relation to her social interaction was:

Ms Migdakis does experience reduced functional capacity in the domain of social interaction. She is able to form and maintain relationships with family and friends and communicate in a socially appropriate manner. Her limitations in social interaction relate to her reduced physical capacity due to her impairments from psoriatic arthritis and fibromyalgia. These challenges make it difficult for her to maintain social connections and engage in local community activities. Her reduced physical capacity impact her ability to socialise in environments that are inaccessible.[97] > > Her limitations are related to her reduced physical capacity due to her impairments from psoriatic arthritis and fibromyalgia. These challenges make it difficult to maintain social connections and engage in local community activities and to attend environments which are inaccessible.

3. Ms Leahy recommended in her report, Ms Migdakis explore opportunities for maintaining friendships in accessible environments and engagement in social clubs in the local area.[98]
4. In oral evidence Ms Leahy stated Ms Migdakis' capacity would fluctuate based on her levels of pain and level of motivation associated with her depression.
5. I accept the evidence of Ms Migdakis, Mr Fraser and Ms Leahy that Ms Migdakis is impacted in the domain of social interaction. I accept Ms Migdakis would like to attend more social activities such as attending the football. I acknowledge Ms Migdakis does not leave the house for social events regularly and has limited contact with friends and family. I also accept Ms Migdakis is reluctant to engage socially due to her low mood. The inability to attend these events is due to her sensory, physical and psychosocial impairments.
6. Balanced against what she is unable to do, Ms Migdakis can interact with friends and family through other means such as the telephone and video calls, she does attend crafting events with some restriction and she has attended special family events such as Christmas gatherings, again with some degree of pain and impact for attending.
7. Overall, I find Ms Migdakis has a reduced capacity to undertake tasks associated with making and keeping friends due to her sensory, physical and psychosocial impairments. However, she does not meet the high threshold of substantially reduced functional capacity. I find this as there is much she is still able to do. She is still able to do so by engaging over the telephone and if she chose to, to have them come to her home. She attends crafting events, only once a year, but demonstrates she is able to spend several days, although part of those days resting, with others. The reason she explained she does not wish to attend those in future was she felt judged by others. The evidence before me does not demonstrate any difficulties in Ms Migdakis' ability to manage her behavioural and emotional regulation in a social context and Ms Leahy noted she is able to socialise in an a socially appropriate manner.
8. The Tribunal finds Mrs Migdakis' circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied Ms Migdakis' permanent impairments result in substantially reduced functional capacity to undertake the activities of social interaction.

1. The Guidelines describe 'learning' as 'how you learn, understand and remember new things, and practise and use new skills.'[99] This pertains to 'having the cognitive capacity to absorb and apply new skills. The phrase practising and using new skills should not be interpreted as meaning that any inability to utilise a skill connotes an inability to learn.[100]
2. The Agency contends Ms Migdakis does not meet the criteria of substantially reduced functional capacity in this domain as any reduction in her capacity in this domain is not substantial, nor is it associated with her permanent impairments. In support of this contention, they state Ms Migdakis' impairment are physical, rather than cognitive and whilst they concede Ms Migdakis has some deficits, they do not meet the requisite standard.[101]

1. Ms Migdakis detailed her concerns with her ability to learn in her written evidence[102] including:

(a) she finds learning new difficult as her focus, concentration and memory have been impacted stating "It is hard for me to understand instructions and do two things at once." > > (b) her memory is poor; "I forget things all the time. I forget family birth dates and appointments. I used to be very good at these things. I often miss appointments as I double book myself as I find it too confusing to keep track of dates. I also can't remember key addresses or where medical offices any more."

2. Ms Migdakis reported to Ms Leahy when conducting the functional capacity assessment:[103]

(a) She does not retain information like she used to. She provided examples of difficulty remembering information on television that she wanted to pass on to her son. On a recent trip to Bendigo, she was arranging accommodation and was unable to recall the distance from the event to her accommodation. > > (b) She has advised her doctor that she has noticed her reduced short-term memory for a while. Her GP reportedly stated that it was part of her conditions and the aging process.

3. As part of her oral evidence Ms Migdakis stated she cannot read books anymore as she is unable to remember what she reads. She did however explain how she makes cards for family members' birthdays, although she is no longer able make whole books through scrapbooking due to her physical restrictions. She also described that she crochets using a modified hook process. Ms Migdakis also showed the Tribunal during the hearing that she keeps written reminders near her chair.
4. Ms Migdakis stated that she has raised her issues with her memory with her doctors in the past including Dr Khanna and her psychiatrist. She said the psychiatrist stated it was as if her brain was a computer with a "lag" which was caused by her fibromyalgia and depression.
5. During the substantive hearing Ms Migdakis was able to use the Microsoft Teams platform on a computer to engage in the hearing and used her mobile phone for extended periods at the same time when her audio on the video was not working. During the hearing I did not observe any particular difficulties in her doing so.

1. In oral evidence Dr Khanna stated that he had not felt there was need to formally test Ms Migdakis' memory. He acknowledged she brings notes to the appointments to remember to raise all of her concerns in the appointment, however that was common with his patients. He stated any memory impairment could be as a result of impacts on Ms Migdakis' mental health.

Ms Migdakis as being able to learn new material and tasks by using her phone to access search engines such as Google. If she is unsure, she benefits from additional support from her son, this assists her to process and understand new information and minimises her becoming overwhelmed. Ms Migdakis would benefit from adopting memory strategies (using a calendar or phone for appointments) to accommodate a reduction in her short term memory.[104]

2. During oral evidence, Ms Leahy clarified she is of the opinion Ms Migdakis does have a reduced functional capacity for learning, however she does have the capacity to learn with assistive technology such as structured memory strategies.
3. Whilst I accept that Ms Migdakis reports she has some difficulties with her memory, there is no clinical evidence before me to connect them to the domain of learning. Her explanation of her craft tasks demonstrates to me that she is still able to learn and practice new skills.
4. Although Ms Migdakis reports she has a reduced short-term memory, there is insufficient evidence before me, particularly any clinical evidence, to support that the short-term memory loss impacts her ability to learn, understand and remember new things, and practise and use new skills. Ms Migdakis spoke at length during the hearing of her crafting, including card making and crochet, which although modified and limited in the time she can withstand sitting to enjoy the crafts, she is still able to conduct those tasks, which demonstrates that Ms Migdakis is able to learn and practice new skills. Ms Leahy assessed Ms Migdakis as having reduced functional capacity in relation to learning as she relies upon aides and support to learn. I am of the view that the aides and supports such as google, calendars or her phone are "commonly used items".
5. The Tribunal finds Mrs Migdakis' circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied Ms Migdakis' permanent impairments result in substantially reduced functional capacity to undertake the activities of learning.

1. The Guidelines describe 'mobility' as '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.'
2. The Tribunal's decision in Madelaine provides the threshold requirement for achieving functional capacity in relation to mobility is _'relatively modest. A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the communit_y'.[105]
3. Further, the Tribunal held that 'the use of the phrase move around ... to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities ... getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short ... it seems reasonable to suggest that a person who can travel 50m by herself has the capacity to do the things referred to in the Guideline.'[106]
4. The Agency submits that Ms Migdakis does not have a substantially reduced functional capacity in relation to mobility as she is able to mobilise indoors and outdoors both without and with the assistance of commonly used items, and so does not satisfy the requirements of r5.8(a).

1. In her personal statement dated 20 October 2023[107] Ms Migdakis explained:

(a) "it is a significant struggle for me to get out of bed due to the pain I experience, as well as being a struggle for me to get on and off a recliner chair and on and off the toilet. It is hard for me to move around due to the pain...and she had "fallen out of bed numerous times and have then struggled to get myself up from the floor, even with the help of my son (who is my carer)"; > > (b) the steps coming into her house made her feel unsafe navigating them. She said this makes it hard for her to leave the house and participate in community activities; > > (c) she can drive for a car for short distances and has difficulty getting in and out of the car. If her medical appointments are more than 15 minutes away, she struggles to get there; > > (d) shopping is difficult for her to walk and to stand in queues. Walking from a car park to a destination such as the chemist can be very tiring, and waiting in a queue for more than 5 minutes usually leads to increased inflammation that makes her joints very stiff and increases the pain; > > (e) public transport has become too difficult for her. The steps on trams are too high, and she is not able to stand on the train when it is crowded, or on the platform when waiting for a train.

(a) On the day Ms Leahy performed the functional capacity assessment she was having an usually good day and that is it not how she would ordinarily present. When this was put to Ms Leahy in her oral evidence, she stated it is common for participants to "do their best" during assessment and would often not be indicative of how they would present over a week. Ms Leahy also said she had considered the cumulative effect of tasks, ie Ms Migdakis would perhaps not shower on the same day as needing to go to an appointment due to the cumulative effort required. > > (b) What her routine is on a "usual day". This included making herself some coffee and heating ready meals from ALDI as she explained she don't have to worry about using baking dishes, saucepans, frying pans or any utensils. > > (c) She purchased her walker from ALDI when they were on sale one day. She purchased her walking stick from a retail shop attached to the Austin Hospital. She had her electric recliner ordered through an occupational therapist in 2022. She also had a bed pole prescribed through an occupational therapist. The bed pole would give her something to help her pull herself out of her bed, but she explained it does not fit under her mattress as it is designed to do due to her bed frame. She was also prescribed a shower chair, but she cannot use that as it is too big for her shower. She stated she cannot stand for a long time in the shower. She also has a frame over her toilet to assist her to get on and off from her toilet. > > (d) Ms Migdakis explained she can get out of her bed however she needs to lie on her back for a while and find the strength to manoeuvre to the side of the bed and put her legs over onto the floor. She is assisted in doing this by wearing slippery clothing. She then leans on her right elbow to support herself to get out of bed. If she is having really bad day, she will have the walker next to her to help her to get up. She said she has had falls from her bed in the past. Although her son lives with her, he is not always able to hear her when she falls or seeks his help. > > (e) When making her food, Ms Migdakis explained she will put a timer on and go from the kitchen to her recliner to wait for the food to cook and then go back and check it or stir it. She said that standing in the kitchen for more than about 5 minutes is too much for her. She can only spend about 10 minutes standing in the kitchen cleaning up after making and eating her meal. She also said she needs 2 hands to carry thing including a cup of coffee due to the strength of the grip in her hands. She explained things fall from her hands and there are times when she has split food or coffee and she has had to wait for the cleaners to come. > > (f) She is unable to use her walking stick as she has shoulder bursitis. She said she has difficulty using her wheeled walker as moving it around is hard as it is too heavy for her. She also stated that it does not help much as walking is still walking and she finds that impacts her lower back, hips, knees, toes and ankles. The only benefit she finds her walker provides is somewhere to sit and rest when she it out of the house and must wait in a line such as at the post office. She also stated that there is a lot of vibration through her upper body and hands when she uses it. When she gets home from being at the supermarket, pharmacy or medical appointments she must go straight to bed and lay down. > > (g) She acknowledged she has a support worker through the local council to assist her to attend appointments and shopping. She explained she used to have an allocation of 3 hours but now has been reduced to 2 hours. She finds that means she has to push herself to get her shopping done. She explained she needs to go on separate trips for the chemist and the post office and cannot do both in the one journey.[108] > > (h) When she goes to the supermarket with the council worker the council worker parks the car as close to the shops as possible and Ms Migdakis uses the car door to help get out of the car. She then will walk approximately 200 to 300 meters to the shops. She said then feels pain in her back, knees and lower limbs. While shopping Ms Migdakis said she "I use my forearms to push it and I'll lean it against my chest and that helps me support my whole body on the trolley." She said she finds that better than using her walker. > > (i) She explained if the weather is nice she will go into her back yard and water her plants for around half an hour. She has difficulty accessing her back yard as there is one deep step down from her deck to the ground level and her wheeled walker is too heavy to take down the stair to her garden. She showed the Tribunal the step and that she had placed loose wooden planks at the bottom of the stair to make it less of a deep step, however acknowledged this was dangerous given the loose wood. She said she holds the wall to get down the stair. She confirmed she had fallen in her backyard before and had been unable to get up. She called out for help and her neighbours had to come to assist her but could not access the yard. She said she had to lay there for an hour until she had the strength to get up. > > (j) She does attend a crafting retreat once or twice a year. She will not go to them unless they are more than 2 days. She explained her son assists to load her car and then she drives, with breaks after 45 minutes of driving, and is assisted to unload her car when she arrives at the retreat. She stated she usually needs to go and lie down and has limited interaction with the program until the second day. Even then she does some crafting for around an hour and will go and lay down. The meals are all prepared for her and participants will let her know when it is time to come to eat with them. When she returns from a crafting retreat she needs weeks to recover.

(a) Ms Migdakis mobility will vary from one day to the next. > > (b) Mornings are difficult due to swollen joints and pain, making it difficult to function. > > (c) She has reduced static and dynamic balance due to a 'shooting pain' in her left buttock, posterior leg pain and numbness extending down to her left foot. > > (d) She was using a 4-point stick in her right hand however this was contributing to shoulder pain. > > (e) She is quite deconditioned with her walking tolerance limited to 100-200m due to pain and fatigue. She reported that both knees and ankles are painful and can 'give way' from under her, which has contributed to many falls in the backyard where there is uneven ground. > > (f) She struggles with negotiating steps, particularly descending. She justifiably has a fear of falling. A recent MRI showed extensive degenerative changes in both knees - surgery is not an option due to comorbidities. > > (g) She has limited capacity to exercise due to damage to her joints and chronic fatigue levels. Her ability to mobilise can be aggravated by activities such as standing for extended periods (eg waiting in line) or over-exerting herself. > > (h) Her body 'pays the price' for days afterwards and she has to spend several days in bed due to the pain and swelling. She needs to frequently elevate her legs in her recliner or bed to manage the swelling. > > (i) She struggles with sit-to-stand transfers, particularly off low height surfaces, and she requires side arms or rails for support. > > (j) Lower back pain further exacerbates the difficulty she experiences with transfers. > > (k) She leans heavily on the car door when transferring. She also pulled a towel rail out of the wall in the past when performing a toilet transfer. > > (l) OT organised through SWEP an electric lift recliner chair for the lounge room and an over-toilet frame. > > (m) Ms Migdakis only drives locally due to her fatigue and discomfort when seated in the car. > > (n) Her ability to engage in valued activities (such as socialising, attending frequent medical appointments and light shopping) is now very much dependent on the availability of assistance (from her son or Whittlesea Council support workers) and the distance she is required to mobilise. > > (o) If Ms Migdakis stays out in the community too long, she struggles to drive home due to pain and swelling. She finds lifting her walker into the car difficult and she tends to make use of shopping trolleys for support.

1. In his oral evidence he advised that Ms Migdakis' mobility had been impacted by her widespread pain and her diabetic foot conditions (warts and corns). When asked if they could impact her mobility Dr Khanna confirmed they could as they are painful. He also advised that she suffers from recurrent ingrown toenails which she is seeing a podiatrist in relation to.
2. He went on to explain that Ms Migdakis weight also impacts her mobility which is influenced by her long-standing use of oral steroid medication. When questioned he confirmed however, that Ms Migdakis' pain is the main impact on her mobility.
3. Dr Khanna was asked if he could state what was the cause of the pain impacting the mobility, the prostatic arthritis and fibromyalgia or the foot conditions. He stated he could not clarify this due to the multiple pain causes.
4. He also stated when asked by Ms Migdakis if she sees him in person, that her GP appointments with him are by telehealth and she does not come to see him in person often due to her mobility issues.

1. In her written report, Ms Leahy made the summarised conclusion:

She has reduced capacity for long distance outdoor mobility due to her fatigue and pain and ascending and descending stairs due to fatigue, pain and reduced balance. Her standing tolerances are reduced when accessing the community and she accesses the seat on her walker for outdoor mobility for rest periods.[110]

2. She recommended access to physiotherapy to assist with the maintenance of her physical capacity, noting there are community services Ms Migdakis may access the physiotherapy through.[111] In oral evidence Ms Leahy suggested the community physiotherapy program would give Ms Migdakis an opportunity to engage in activities outside of her home.
3. Further, she recommended an occupational therapy home assessment to consider safer options for entering and leaving her home.[112]
4. In her oral evidence, Ms Leahy explained the functional capacity assessment she undertook to write her report was undertaken in person in Ms Migdakis' home which included observing her walking around inside and outside of her home; a manual muscle assessment and testing her range of motion.[113]
5. Stating further in her oral evidence, Ms Leahy gave her overview of her assessment in which she highlighted Ms Migdakis had limitations in upper limbs and shoulders, in her cervical, thoracic and lumbar spine. She noted Ms Migdakis reported pain upon movement during the assessment. Resulting in a reduced range of motion in her joints. Reduced dynamic balance was demonstrated as she needed to hold furniture to move around the house and her use of the wheeled walker out of the home. She was unable to stand on one leg to balance. Strength in her upper and lower muscle groups was a 4 out of 5. Five would be "normal" strength.
6. In her oral evidence Ms Leahy noted:

(a) In relation to sitting, she observed Ms Migdakis sit for approximately 1 hour in her reclining chair while Ms Leahy completed the initial component of her assessment where she was taking a history from Ms Migdakis. > > (b) Ms Migdakis is able to shower independently although she cannot stand in the shower due to concerns she will slip. > > (c) Ms Migdakis demonstrated she was capable of standing for 15 to 20 minutes. Ms Leahy based this on her observations of Ms Migdakis standing from her seat and prepare a meal. Ms Migdakis disputes this assessment and states that she is only able to stand for 5 minutes at a time. > > (d) Ms Migdakis chose not to use her four-pronged walking stick on the day of the assessment to move around her home, noting that she uses it on days when she feels more unsteady and that using the walker or stick impacts her shoulder. She saw Ms Migdakis move through the house but her gait was slow and cautious. Her assessment was that her ability to move around inside her home fluctuates with pain levels. > > (e) She observed Ms Migdakis outside of her home, leaving her home and walking on to her veranda and descending and ascending the two steps outside her home. She noted that Ms Migdakis needed the assistance of a rail when using a ramp. When going up and down stairs Ms Leahy described her as "unsteady and unsafe" and needing to hold onto the wall. In addition she stated Ms Migdakis' ability to go up or down more than 2 stairs would be significantly reduced due to her pain, reduced balance and reduced strength. She summarised Ms Migdakis ability to move around outside her home has reduced as she has poor physical endurance and her fatigue and pain levels. > > (f) Ms Migdakis was independent in transfer from her car, shower and bed, noting that she has an over toilet frame to raise the height of the toilet and use the arms to raise herself from the toilet. > > (g) Ms Migdakis was independent in driving and was able to drive for 1 - 2 hours based on her report of attending crafting events and where she was told they were. During Ms Migdakis' oral evidence she advised she can drive for about 45 minutes before she needs to stop and stretch her legs. > > These observations were consistent with her written assessment in her report.

7. Assistive technology as she referred to it in her report referred to items to assist a person which have been prescribed by an allied health professional. When it was explained that Ms Migdakis purchased the stick she uses for walking and the wheeled walker from retail outlets rather than through a prescription of an allied health provider, she noted that she would not recommend they be used.
8. Considering this domain, as with the others, requires my consideration of Ms Migdakis' mobility activities as a whole and not each individual activity. I acknowledge she currently has assistance with attending appointments and grocery shopping from a council worker. I also acknowledge it takes her a long time to undertake tasks such as cooking her meals as she needs to sit down in her recliner in between cooking steps. It is also difficult for her to move from sitting to standing and she is assisted by some items of assistive technology such as a raised toilet seat and a four wheeled walker. Moving in and out of her home is challenging for Ms Migdakis as she is unsteady on her feet and needs to hold onto the walls to negotiate stairs onto the ground. Ms Leahy noted she would not be able to ascend or descend more than a couple of stairs without great difficulty and it being a safety risk. Ms Leahy did note Ms Migdakis to be independent in her transfers from the car and from the shower to her bed.
9. In relation to her ability to mobilise in the community, I note her written evidence that she can drive for a car for short distances and has difficulty getting in and out of the car. If her medical appointments are more than 15 minutes away, she struggles to get there. This is inconsistent with her oral evidence about being able to drive for approximately 45 minutes before needing a break at a "truck stop" when driving to regional Victoria to attend a crafting retreat. I do note however, the crafting retreats are only one or two times a year, however the period of time Mrs Migdakis reports she can tolerate driving stated by her is significantly inconsistent.
10. Overall, Ms Migdakis appears to be able to mobilise with the assistance of "commonly used items".
11. The term "commonly used items" as referred to in Rule 5.8(a) is relevant in determining whether a prospective participant has a substantially reduced functional capacity for the purposes of section 24(1)(c) of the Act because such a person is unable to participate effectively or completely in a relevant activity as described in that Rule. Within that Rule, it is considered an exception to the prospective applicant's use of assistive technology where it is a commonly used item (such as glasses).
12. In addition, the Guidelines[114] note disability-specific supports include...assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
13. I am in agreement with the Agency's contention that in assessing whether a person can participate effectively or completely in a relevant activity, Rule 5.8(a) requires the decision-maker to undertake that assessment on the basis that such person is unaided by assistive technology, equipment or home modifications other than "commonly used items". Commonly used items is not defined in the Rules, however, Senior Member Cameron considered the application of "commonly used items" in the context of R5.8(a) in Rooney and National Disability Insurance Agency [2021] AATA 3523[115] as follows:

...if a person can mobilise with a commonly used item, they will not satisfy the requirements of Rule 5.8(a). In the alternative, the language used in Rule 5.8(a) requires the decision-maker to reach a conclusion as to whether a person aided by commonly used items can participate effectively or completely in one of the relevant activities.

There are also other indicia of commonly used items which include whether the item:

(b) can be used without the need for complex or specialised customisation or installation;

1. They are considered to be items which are able to be purchased.
2. I acknowledge that Ms Migdakis does require assistance from a council worker to engage in shopping and attending appointments. 5.8(b) requires consideration of whether Ms Migdakis 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. I find that her assistance from a council worker is confined to a particular aspect of the activity of mobility. When considered over the activity as a whole, I am satisfied Ms Migdakis is able to mobilise to the point that she does not usually require assistance of other people to participate in the majority of the other considered tasks within the activity of mobility, such as moving around her home and driving her car.
3. I find Ms Migdakis is limited in her mobility. She does have restrictions on her ability to go up and down stairs, stand for extended periods of time and walk long distances. I find the limitations in her mobility can be assisted with the use of commonly used items. Ms Migdakis explained she purchased the four wheeled walker from Aldi supermarket when it was on sale and the walking stick from a retail shop attached to the Austin Hospital. She explained she needs to sit on her walker when required to stand for a long period of time and needs to lean on a supermarket trolley for stability when doing her groceries. All of these aids she engages to mobilise are all commonly used items as she has not required a prescription to purchase them, although they may have been recommended by an allied health professional, and are capable of being replaced with relative ease and are inexpensive. I note that she does have an electric recliner chair which was purchased through a health program. Although Ms Migdakis does often engage aids to assist with her mobility, I find she is able to mobilise around her home with no aid, stand for broken periods sufficiently to make herself a meal, transfer on and off her bed in a modified manner and move into and out of her shower and toilet. Her actions are slower than someone without her impairments and many actions are assisted by commonly used items, however, her reduced functional capacity is not sufficient to satisfy the standard of substantially reduced functional capacity.
4. The Tribunal finds Ms Migdakis' circumstances are not captured by those described in r5.8 of the Access Rules. Nor is the Tribunal satisfied Ms Migdakis' permanent impairments results in substantially reduced functional capacity to undertake the activities of mobility.

1. The Guidelines describe 'self-care' as 'personal care, hygiene, grooming, eating and drinking, and health ... how you get dressed, shower or bathe, eat or go to the toilet.' Further the Guidelines note that 'undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity'.[116]
2. The Agency contends this criterion is not met because:

(h) Ms Migdakis does have some deficits in this domain, however they are not sufficient to demonstrate significant gaps in her capacity to maintain her personal health, safety and wellbeing to the extent it could be considered a substantially reduced functional capacity; and > > (i) the shower chair and the raised toilet seat with arms are commonly used item for the purposes of r5.8(a) of the Access Rules.[117]

(j) Cooks herself a boiled egg for her breakfast or lunch and explained how she cooks that using a pan on the stove top and she is able to chop a cucumber or tomato. She explained she goes backwards and forwards to her recliner breaking the task into smaller tasks rather than standing for an extended period. She also explained she can tidy the kitchen after meal preparation for approximately 10 minutes. > > (k) Demonstrated with her video camera that she is unable to tidy her house and stated she has clutter everywhere. It was evident from the video connection the living rooms were full of boxes of belongings and craft materials on table tops. > > (l) It can be 2 weeks between times she is able to wash her hair and goes to the hairdressers once per year. She puts her hair up in a simple way each day. > > (m) The shower chair she has was prescribed by Mr Fraser, the Occupational Therapist she was seeing through the Austin Hospital. When the chair arrived she found it did not fit in the shower with the door closed and when she uses it water goes on the floor outside the shower recess. > > (n) She had seen a podiatrist to assist her with her toenail care, however, she is waiting to be able to access a different podiatrist as she was not able to have her needs met by the previous one.

2. In her written statement, Ms Migdakis highlighted she needs her son to assist her in dressing her lower half and to put on socks and shoes. She has had to buy clothes that are easier to get on an off as she cannot manage zips and buttons as well as difficulty putting on her bra.[119] In her oral evidence she clarified that her son assists her with dressing during very bad "flare ups". She also confirmed she wears clothes which she can pull on and off or are modified such as a front closing bra. She also said she never wears socks as they cause issues with her circulation.
3. She states she can eat independently but needs help to prepare her meals.[120] In oral evidence she advised she eats premade meals. She also stated that Mr Fraser had prescribed modified kitchen utensils during the COVID period, however, he advised he was not able to get funding to purchase them.
4. In her statement of lived experience Ms Migdakis commented she can go to the toilet independently but is incontinent which resulted in regular wetting of clothing and bedding. She also stated sometimes it is so difficult to get out of bed I will wet myself before getting to the toilet.[121] When asked about how she manages toileting in oral evidence, Ms Migdakis explained she has no issues with getting on and off the toilet as she makes use of a commode that sits over her toilet. If she has a particularly difficult time, she explained she can move the commode next to her bed and modify its use so it can be used away from a toilet. When she is away from home, she uses a disability toilet or pulls herself up using rails or a toilet roll holder if needed. She explained she has pulled towel rails and toilet roll holders out of the wall using this method.

1. In his report Ms Migdakis' treating occupational therapist, Andrew Fraser, stated:[122]

(a) There are days when Penny needs to rest after showering or doesn't shower at all. > > (b) On these days she spends the majority of the day lying in bed due to pain and fatigue. Even getting out of bed to go to the toilet can be a struggle. > > (c) Ms Migdakis has significantly reduced standing tolerance and a fear of falling and so she tends to perform tasks, such as dressing, in a seated position. She sits to showers on a shower stool organised through "SWEP" via her occupational therapist. > > (d) She is independent with toileting using the over-toilet frame also supplied via "SWEP". > > Ms Leahy

2. In summary, Ms Leahy found in her functional capacity assessment report:

Ms Migdakis is independent in self-care with assistive technology and self-pacing techniques. Her fluctuating pain levels impact her capacity to shower daily and affect her sleep quality and duration. > > Ms Migdakis would benefit from a review of her shower transfers and seating requirements for showering to increase her safety. She requires support for sleep hygiene and education, energy conservation and self-pacing. > > She went on to recommend an Occupational Therapy review of shower transfers and seating requirements, sleep management, and education on energy conservation and reinforcement of pain management techniques.[123] > > She requires very high to high levels of assistance with heavy cleaning, heavy gardening and home maintenance tasks due to her reduced strength in her upper body, reduced static balance and pain and fatigue levels. She has the physical capacity for greater participation in grocery shopping should she chose and would benefit from assistive technology in meal preparation to reduce fatigue and adopt energy conservation techniques such as a perching stool and low cost assistive technology.[124]

3. In her oral evidence Ms Leahy was of the opinion Ms Migdakis is:

(e) independent in showering when she made use of the handheld shower in her bathroom and a shower chair. She noted she cannot reach her feet and lower legs when on the chair so she would benefit from a long-handled sponge to wash her lower legs and feet. She confirmed that standing in the shower for five minutes was within the 15 minute standing timeframe she considered Ms Migdakis could stand for, however showering is different as there are dynamic tasks involved, Ms Migdakis has reduced balance and it is a slippery area therefore it would be unsafe for her to stand in the shower and a shower chair is needed; > > (f) independent in dressing and undressing when in a seated position based on the self report and strength assessment; > > (g) independent in toileting with the use of a raised toilet seat with arms based on a self report; > > (h) independent in all aspects of grooming (hair care, shaving, dental care, fingernails) with the exception of toenail care. She accesses podiatry for toenail care; > > (i) independent in eating and drinking and managing her medications; > > (j) based on self reports, Ms Migdakis has interrupted sleep, interrupted by her pain. She recommended some sleep hygiene and sleep management strategies.

4. This was consistent with her written report.
5. Ms Leahy went on to explain there was an inconsistency in relation to what Ms Migdakis had reported that she attended crafting activities which are 1 ½ to 2 hours drive away. When Ms Migdakis' earlier evidence was put to Ms Leahy, in that there is assistance Ms Migdakis has with loading and unloading the car and takes breaks on her drive to the events which she will only do when it is more than 2 days, Ms Leahy stated that the description is consistent with her observations of Ms Migdakis.
6. I accept the evidence of Ms Migdakis and Mr Fraser that Ms Migdakis has restrictions on her activities of self care. Her impairments make activities such as showering and cleaning difficult and are taxing on her. I note Ms Migdakis has had some issues with incontinence, however, they do not relate to the impairments which have been found to be permanent and so do not fall within the scope of the Tribunal's examination.
7. I find Ms Migdakis has the capacity to shower independently, albeit with difficulty. I accept she would benefit from long handled aids and a proper shower chair to fit within her shower. I consider these to be commonly used items.
8. I acknowledge Ms Migdakis reported she requires assistance from her son to dress when she has very bad "flare ups", and she needs to modify the way she puts on some items of clothing such as her bra. She also had to purchase clothing she can pull on and off. Ms Leahy's evidence that she has the functional capacity to perform the task of dressing independently even if she needs to sit on the side of her bed and to choose particular clothes and to take a long time to dress. I find Ms Migdakis requires irregular assistance from her son such as having very bad "flare ups", however, she is mostly able to dress independently.
9. I find Ms Migdakis is generally independent with toileting and safe in doing so with a toilet frame. I consider a toilet frame a commonly used item. It does not require any special set up or prescription and can be purchased readily from home aid retail stores. I also observe Ms Migdakis uses a disability specific toilet when she is in the community.
10. Accordingly, considering the elements of self-care as a whole, and not each of the tasks that comprise the activity, the Tribunal finds Mrs Migdakis' circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied Ms Migdakis' permanent impairments result in substantially reduced functional capacity to undertake the activities of self-care.

1. The Guidelines describe 'self-management' as 'how you organise your life. ... 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 ... your mental or cognitive ability to manage your life, not your physical ability to do these tasks.'
2. The Agency contends Ms Migdakis does not satisfy the criterion for this domain as she advised that she can make decisions related to her daily life and managing her health care.
3. I note in line with the Tribunal's decision in Burrows the consideration is not whether Ms Migdakis can physically undertake the tasks of self-management, rather the focus is upon the cognitive ability to undertake such tasks.

1. During her oral evidence, Ms Migdakis provided evidence in relation to her management of her daily tasks including:

(a) completing her grocery shopping with the assistance of a support worker. > > (b) having ordered meals for home delivery in the past. > > (c) she attended medical appointments such as seeing Ms Bau regularly and mostly attends those appointments through telehealth. It is acknowledged there are times when Ms Migdakis needs to cancel those appointments due to her pain and mobility issues. > > (d) planning to attend crafting retreats including organising the supplies she needs to take, planning the accommodation and considering the route to drive. I acknowledge she has stated that she could not recall the distance between the accommodation and the event she was attending in Bendigo. > > (e) has notes near her chair that she mostly sits in to remind her of her appointments and important dates.

2. During the hearing, I observed Ms Migdakis to be on time to the hearing and the hearing resumptions and was able to logically work through the evidence and ask questions of the witnesses. She was also able to think through the evidence she wanted the Tribunal to be aware of in an ordered manner and provided clear and considered answers to the questions asked of her during cross examination.
3. Ms Migdakis explained to Ms Leahy during her assessment that she can:[125]

(a) Make decisions related to her daily life and managing her health care. > > (b) Manage her finances and banking using her mobile phone. She occasionally requests assistance from her son if she is required to enter a different password and has difficulty with passwords requiring a special character.

1. Ms Leahy's opinion in her report was Ms Migdakis is independent in managing her financials and managing day to day decisions.[126]
2. The evidence before me demonstrates Ms Migdakis does not have a substantially reduced functional capacity in this domain. She was able to demonstrate she is able organise her life by such things as attending events away from her home and organising her food and medical appointments. It is not without effort and prompts such as notes of reminder and the occasional assistance of her son with the use of technology. Her engagement with the Tribunal further supports this conclusion.
3. I find that Ms Migdakis does not have any difficulties with her ability to solve problems, manage her money or have any mental or cognitive difficulties in managing her life. Accordingly the Tribunal finds Ms Migdakis' circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied Ms Migdakis' permanent impairments result in substantially reduced functional capacity to undertake the activities of self-management.
4. To be clear, the Tribunal finds Ms Migdakis does not satisfy the criteria of s24(1)(c) and by extension is not found to meet the disability requirements under s24.

Does Ms Migdakis meet the early intervention requirements under s25?

1. As with the criterion to meet s24 of the Act, the criteria under s25 are cumulative and each criterion must be met before moving to the next.
2. The Agency submits that the Tribunal cannot be satisfied that the early intervention requirements in s25(1) of the NDIS Act are met.
3. Ms Migdakis made no specific contentions in relation to this consideration.

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

(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 that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

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

1. The Agency's contentions in respect of permanence (for s24(1)(b)) are relied on for the permanence aspect of the early intervention requirements (in s25(1)(a)) and as such, the Agency concedes that s25(1)(a) is met.
2. For the reasons outlined above in relation to my consideration of s24(1)(b), the Tribunal is satisfied Ms Migdakis has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent which include inflammation in her joints, stiffness of her joints and fatigue (physical impairments), generalised pain (sensory impairment) and depressed mood, and reduced motivation (psychosocial impairments).
3. Section 25(1)(b) - Reducing future need for support

(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

1. The Agency then contends Section 25(1)(b) requires a state of satisfaction that some provision of support early will, as a matter of realistic probability, benefit the person by reducing their future needs for support. It relies upon the Tribunal's decision in Nika[127] As the Tribunal has previously observed, if an 'Applicant will be likely to need supports for the rest of her life and, as the supports needed are likely to increase, it cannot be said that the provision of the early intervention supports for the Applicant is likely to benefit her by reducing her future needs for support in relation to disability'.
2. They further rely upon Ms Leahy's opinion that she did not consider the supports to be early intervention in nature because Ms Migdakis was diagnosed in 2015 and has actively participated in rehabilitation programs and continues to attend physiotherapy and psychology.[128] The Tribunal notes however, Ms Migdakis' evidence during the hearing was that she was no longer financially able to participate in physiotherapy or psychology since Ms Leahy's report.
3. There is evidence before the Tribunal from Ms Migdakis treating professionals that she has engaged with them since, at least, 2015 for some of the treatments. Accordingly, the Tribunal is not satisfied the evidence before it is sufficient to establish that provision of early intervention supports for the person is likely to benefit the person by reducing Ms Migdakis' needs for supports in relation to her permanent impairments arising from her disabilities.

1. In circumstances where Ms Migdakis permanent physical, sensory and psychosocial impairments:

(a) do not result in substantially reduced functional capacity to undertake any of the activities prescribed in s 24(1)(c), the Tribunal is not satisfied the requirement in s24(1)(c) is met. It follows that Ms Migdakis does not meet the disability requirements in s24; and

(b) do not establish the provision of early intervention supports are likely to benefit her by reducing her needs for supports within the meaning of s25(1)(b). It follows that Ms Migdakis does not meet the disability requirements in s25.

1. As I have reached the same conclusion as the decision under review, I will affirm that decision.

1. The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Act 2024.

Mr Dayne Kingsford of Counsel, instructed by Ms Emilia Howard of the law firm Sparke Helmore

[4] Ms Migdakis oral evidence and EB1 - pg 32.

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

[13] Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201 at [77].

[15] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420.

[17] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), [69].

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

[21] Respondent's Statement of Facts Issues and Contentions pg 4.

[28] Report dated 28 April 2025, EB1 - pg 28.

[33] Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607 (Burrows)

[59] Letter dated 2 October 2025, EB1 - pg 29.

[72] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), [64].

[73] National Disability Insurance Agency v Lampard [2025] FCAFC 139 (10 October 2025) (Lampard).

[77] Respondent's oral closing submissions.

[82] Nika and National Disability Insurance Agency [2021] AATA 2127, [241].

[83] Ghezzaoui and National Disability Insurance Agency [2023] AATA 2835, [79].

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

[86] Respondent's oral closing submission.

[105] Madelaine v National Disability Insurance Agency [2020] AATA 4025 (Madelaine) [104].

[114] Applying to the NDIS Guidelines, 26 June 2023 pg 9.

[127] Nika and National Disability Insurance Agency [2021] AAT 2127 [299]-[300].