The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

.......................[Sgd]...........................

NATIONAL DISABILITY INSURANCE SCHEME - access to scheme - Crohn's Disease - Anorectal Disease - Generalised Anxiety Disorder - whether impairment results in "substantially reduced functional capacity" to undertake any one or more specified activities - whether Applicant meets early intervention requirements - access criteria under sections 24 and 25 National Disability Insurance Scheme Act 2013 not met - decision affirmed

Administrative Appeals Tribunal Act ss 35, 39, 43

National Disability Insurance Scheme Act 2013 ss 3, 18, 20-21, 24-25, 28, 100, 103, 209

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

Ditchfield and NDIA [2019] AATA 2121

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

FBJV and NDIA [2021] AATA 913

GXYZ and NDIA [2020] AATA 3907

Howard and NDIA [2019] AATA 2

HPSC and NDIA [2021] AATA 727

Madelaine and NDIA [2020] AATA 4025

Mulligan and NDIA [2015] FCA 44

Schwass and NDIA [2019] AATA 28

1. The Applicant, MRLK, is a 26 year old female.[1] In March 2020, MRLK applied to become a participant in the National Disability Insurance Scheme (NDIS)[2] due to the effects of her Crohn's Disease, Anorectal Disease and Generalised Anxiety Disorder.

2. In June 2020, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) determined that MRLK did not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (NDIS Act).[3]

3. MRLK requested an internal review by the NDIA[4] and, in July 2020, another delegate of the CEO confirmed its decision that she did not satisfy the access criteria in either sections 24 (containing the disability requirements) or 25 (containing the early intervention requirements) of the NDIS Act.[5] Pursuant to section 103 of the NDIS Act, MRLK applied to Administrative Appeals Tribunal (Tribunal) for review of the NDIA's decision made under section 100 of the NDIS Act.[6]

4. In September 2021, as a result of the COVID-19 pandemic, the Tribunal held a hearing of MRLK's application over three days using the videoconferencing facility, Microsoft Teams. Both parties were represented by Counsel and the Tribunal is satisfied that the parties had a reasonable opportunity to present their respective cases and to make submissions in this proceeding, in accordance with section 39 of the Administrative Appeals Tribunal Act 1975 (AAT Act). The Tribunal has considered all of the evidence and submissions in this proceeding in reaching its decision and preparing these reasons. Additionally, due to the personal nature of the symptoms or effects of MRLK's physical conditions, the Tribunal made an order under section 35 of the AAT Act prohibiting the publication of her name and any other information tending to reveal MRLK's identity.

5. The Tribunal must decide whether MRLK meets the 'access criteria', set out in section 21 of the NDIS Act, to become a participant in the NDIS. There was no dispute that MRLK meets both the age requirements and the residence requirements, pursuant to sections 22 and 23 of the NDIS Act, which form part of the access criteria under subsections 21(1)(a) and (b) of the NDIS Act. At the hearing, MRLK confirmed that she did not press her claim for access to the NDIS based on meeting the separate 'early intervention requirements' in section 25 of the NDIS Act.

6. Accordingly, to satisfy the final relevant element of the access criteria in subsection 21(1)(c) of the NDIS Act, the Tribunal must determine whether MRLK meets the 'disability requirements' in section 24 of the NDIS Act. This requires consideration of whether:

(a) MRLK has a disability that is attributable to one or more impairments set out in subsection 24(1)(a) of the NDIS Act;

(b) MRLK's impairments are, or are likely to be, permanent in accordance with subsection 24(1)(b) of the NDIS Act;

(c) the impairments result in substantially reduced functional capacity to undertake one or more of the prescribed activities under subsection 24(1)(c) of the NDIS Act;

(d) MRLK's impairments affect her capacity for social or economic participation pursuant to subsection 24(1)(d) of the NDIS Act; and

(e) MRLK is likely to require support under the NDIS for her lifetime in accordance with subsection 24(1)(e) of the NDIS Act.

7. The objects of the NDIS Act, set out in section 3, include to:

(a) in conjunction with other laws, give effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and

(b) provide for the National Disability Insurance Scheme in Australia; and

(c) support the independence and social and economic participation of people with disability; and

(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and

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

(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability;

(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and

(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and

(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability...

8. Subsection 3(3) provides that, in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS and to the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the NDIS.

9. Under section 18 of the NDIS Act, a person may make an access request to the NDIA to become a participant in the NDIS. If a prospective participant makes an access request, under section 20 of the NDIS Act, the CEO (or here, the Tribunal) must decide whether or not that person meets the 'access criteria' to become a participant in the NDIS. Pursuant to subsection 28(1) of the NDIS Act, a person will be granted access to the NDIS on the day it is decided under section 20 that the person meets the access criteria.

10. Subsection 21(1) of the NDIS Act provides that a person meets the access criteria if:

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

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

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

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

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

11. Relevantly in this proceeding, the 'disability requirements' in section 24 of the NDIS Act are as follows:

(1) A person meets the disability requirements if:

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

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

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

(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.

12. Pursuant to subsection 209(1) of the NDIS Act, the Minister may by legislative instrument make rules regarding the NDIS. The rules relevant to this application are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Rules).

13. Additionally, an 'Access to the NDIS Operational Guideline' (Access Guideline) written by the CEO of the NDIA provides guidance when determining whether a person with a disability meets the access criteria to become a participant of the NDIS. The Access Guideline represents government policy and, to the extent it is consistent with the relevant legislation, should be applied by the Tribunal unless there is good reason not to do so.[7]

14. In 2017, Dr Balu provided a letter of support for MRLK's application for access to the NDIS.[8] It relevantly stated that:

This lovely young lady has severe chronic and debilitating medical conditions. She has been diagnosed with Crohn's Disease several years ago. This has been complicated by fistulae between the bladder, rectum and vagina. She has constant perineal discharge and infections which have been difficult to manage. [MRLK] frequently needs to attend hospital for treatment and urgent admissions. She is also under the care of various specialists for her conditions. Her conditions have not only marked physical impacts, as well as psychological. She would benefit from seeing a dietician and a psychologist in the near future.

15. In 2020, Dr Balu prepared a report for this proceeding in response to a request from MRLK's solicitors.[9] It noted that in 2004 MRLK was diagnosed with Crohn's Disease when she was 9 years old. In 2012, MRLK was diagnosed with rectovaginal fistula. These have required ongoing treatment and surgery and she 'continues to require several perianal fistula surgeries annually, since 2015'. During this time, MRLK has had 'ongoing issues with fatigue, ongoing abdominal and rectovaginal pain and discharge. She has become socially withdrawn and developed more depression and anxiety symptoms'. In her teenage years, MRLK had 'a tendency to OCD [Obsessive Compulsive Disorder]'.

16. Dr Balu reported that, in 2017, MRLK engaged with a psychologist, but was unable to continue due to financial constraints which continue. He also stated that MRLK's:[10]

Crohn's disease and rectovaginal fistulae issues have continued and required further surgery under general anaesthetics. These have included further anal dilations, pudendal nerve blocks. An ileostomy was performed in 2018 and required stomal revisions in 2019 and 2020. [MRLK]'s ongoing vaginal bleeding and discharge issues have lead [sic] to a mirena intra-uterine device being inserted in 2019. However these issues are complicating the need for further proposed surgery of a permanent colostomy.

Despite having to endure so much physically and mentally, [MRLK] is extremely astute, diligent and intelligent and she has shown outstanding resilience to complete high school and continue her university studies, albeit at a much slower pace than she would have liked.

However there are clear implications from her complex array of her chronic medical conditions and these will be lifelong. The proposed permanent colostomy is not a cure for her condition. The rectovaginal issues will be lifelong and have a real likelihood to impact her ability to bear children. In fact investigations via a gynaecology specialist show that her chance of falling pregnant now and in the future are very low and that IVF is not viable option. This is a stark prospect to face at the age of 26 years. And largely due to these, her anxiety and depression issues will persist.

[MRLK]'s future is very "medicalised". She will never be able to get away from medical specialists, invasive procedures, medications. However she also needs support from a psychologist, dietician, exercise physiologist, wound care/stoma nurses. Any further working life/career will be severely affected by her health and medical needs. Her social and community interactions and [sic] are currently and will continue to be severely impaired due to her physical and mental health.

17. Dr Balu gave evidence to the Tribunal by MS Teams. He confirmed adherence to his report of 18 December 2020 and said that it represented his professional opinion regarding MRLK. Dr Balu has been treating MRLK since May 2016. MRLK's previous general practitioner was Dr Jacqueline Lowe at the same medical practice. Dr Balu was referred to a 2014 letter to Dr Lowe from Dr Phillip Keightley, then a Psychiatric Advanced Trainee at the Inflammatory Bowel Disease Psychiatry Liaison Clinic at The Canberra Hospital.[11] He was asked whether his opinion was the same as expressed by Dr Keightley at that time, being that MRLK has 'moderate depression and has become more socially withdrawn and obsessional'. Dr Balu told the Tribunal he held a 'very similar' opinion and that 'several factors' affect MRLK's mental health, such as her physical conditions, medical procedures and anaemia, among others.

18. Dr Balu told the Tribunal that he believed the intention of MRLK's recent permanent colostomy was to make care of her stoma less onerous, although noted that he is not a specialist in the field. While Dr Balu said he did not have a 'detailed knowledge' of the stoma care requirements, he said there were 'many issues'.

19. Counsel for the NDIA asked Dr Balu about MRLK's physical capabilities. He said MRLK would 'generally' have no difficulties dressing. She could shower, but it was 'not straightforward' given her stoma. Dr Balu said that MRLK's pain may limit her ability to stand to cut fruit but she could 'possibly' do this task. Dr Balu said it is difficult to judge or ascertain whether MRLK can reliably work four days a week or stand and cut fruit. He assumed that MRLK's pain would affect her employment. Dr Balu said MRLK's medical conditions are 'very complicated' and pain is certainly an issue. This include issues with her stoma, the fistulae and related discharge. These do not always happen one at a time and can occur together.

20. In relation to mobility, Dr Balu told the Tribunal that when MRLK attends his practice she can be in 'significant pain', with discharge and walks slowly, doubled-over in pain. However, on other occasions, she can walk independently without issue. In recent years, MRLK has 'mostly' attended appointments with Dr Balu on her own, but is occasionally supported by her mother.

21. Dr Balu said MRLK does not have cognitive challenges. He said that MRLK can largely organise herself, however her pain can affect cognitive function and organisational ability, but not consistently. Dr Balu said there are times when she is not so good and takes pain medication as needed. He believed this medication 'by and large' seemed to be helping MRLK when required.

22. Dr Balu told the Tribunal that he is 'certainly' concerned with MRLK's mental health prognosis. She has a complex medical background and an ongoing need for specialists, hospital visits, interventions and reviews. These 'undoubtedly' affect MRLK's mental health, depression and anxiety. Dr Balu said these were 'not going away' and will continue to affect MRLK. Dr Balu considers MRLK has depression and would 'absolutely' benefit from psychological support and this was 'certainly' something she needs to obtain. This has been attempted, but financial constraints are a factor. The intent of the Lexapro medication is to help with MRLK's depression and anxiety. The main 'hopes' were said to be to improve MRLK's mood, reduce anxiety and worry and to improve her sleep. The recommended dosage is generally 20mg, occasionally 40mg and 'very few' are on a higher dosage. MRLK is currently on 20mg of Lexapro. Dr Balu agreed that fatigue can be connected with mental health problems and a side effect of medication such as Lexapro. However, he said if MRLK's mental health improved then her fatigue can improve, although this was 'not straightforward' given her other chronic health conditions, such as low iron levels.

23. Dr Balu told the Tribunal that psychiatric or psychological intervention will 'go a long way' to improve MRLK's 'outlook' and have flow on effects in terms of her functioning. He was unsure whether this therapy would result in an alteration to the medication being prescribed. Dr Balu told the Tribunal that psychological support could improve MRLK's mental health and 'potentially' reduce the required medication, but could not be definitive. The 'hope' would be to reduce MRLK's periods of depression and it 'may' reduce the days she feels unable to face the world.

24. Counsel for the NDIA asked Dr Balu whether he agreed that MRLK's actual capacity to engage with daily living can only be accurately assessed once she has explored or exhausted regular psychological treatments. He said he did not 'think that's the whole picture'. While Dr Balu observed that he could not 'completely agree', he said it would 'go a long way'. Dr Balu also said that MRLK's other chronic medical conditions will 'always be affecting her functional capacity'. As a result, he told the Tribunal that he 'partially, but not fully', agreed with the proposition that MRLK's capacity could only be accurately assessed following psychological treatment. Dr Balu did agree that it was 'likely' MRLK's current functional capacity would improve with proper mental health treatment.

25. On 20 December 2020, Dr Reay prepared a report for this proceeding following an in-person assessment of MRLK conducted on 30 November 2020 at the request of MRLK's solicitors.[12] Dr Reay opined that MRLK meets the disability requirements in section 24 of the NDIS Act due to her physical and psychiatric impairments, including because she has a 'substantial reduction in her functional capacity' in the activities of self-care, self-management and social interaction.[13]

26. Dr Reay obtained information regarding MRLK from 'interview questions, observation of her functional capacity, the home environment and demonstration of selected domestic tasks'.[14] MRLK's mother also provided a statement in relation to her role in her daughter's care. Dr Reay administered a number of 'physical, disability and mental health measures' through questionnaires, interview and self-reporting from MRLK.[15] For example, a 'Short Inflammatory Bowel Disease Questionnaire' is a self-report questionnaire 'used extensively in research into Crohn's disease and examines disease specific, health-related quality of life', with total scores ranging from 10 to 70; higher scores indicate better health-related quality of life. MRLK scored 23 using this questionnaire.

Crohn's disease (CD) is a type of chronic, relapsing inflammatory bowel disease with no cure. It can affect any part of the gastrointestinal tract from the mouth to the anus. Treatment requires a comprehensive care team including the patient, primary care provider, gastroenterologist, surgeon, stoma nurses, dietician, physiotherapists, and mental health professionals. The disease causes considerable suffering, and is associated with anxiety, depression, fatigue, reduced social and economic participation and poorer quality of life. The inflammatory disease itself, anaemia, nutritional deficiencies, sleep abnormalities, depression, and medication side‐effects have all been suggested as potential contributors to high levels of fatigue and poor quality of life in CD patients (Jelsness‐Jorgensen et al. 2011; Keightley et al. 2018). Personality, pain, shame, fear of stigma and past trauma can alter healthcare-seeking behaviour, even though CD patients commonly experience high rates of depression and anxiety, particularly females (Keightley et al. 2015; 2018).

28. Dr Reay reported that MRLK 'walked without assistance' during her assessment, albeit 'slowly'.[17] She 'chats with her friends on social apps, attends the occasional dinner or walk', but is 'unable to meet new people due to her anxiety'.[18] At the time of the assessment, MRLK had obtained one day of work as a casual disability support worker and her role was said to involve 'supporting people with moderate to severe cognitive and physical disabilities' in the community and supervising and preparing meals.[19] MRLK told Dr Reay that she uses a shower chair due to fatigue and fainting.[20]

29. Dr Reay stated that she asked MRLK to 'demonstrate several daily activities', including 'doing the laundry, emptying the dishwasher and making a cup of tea'.[21] Dr Reay reported that MRLK is 'unable to manage laundry independently due to her extreme fatigue' and is 'unable to lift anything heavy, such as a laundry basket of clothing, due to the stoma'. However, it was also reported that she can 'take out her own clothes (one by one) and place each item on a drying rack inside the laundry'.[22] MRLK also demonstrated emptying the top shelf of the dishwasher and returning lighter items to the cupboard, such as glasses, plates and cutlery. MRLK was able to make a cup of tea independently 'without difficulty'.[23] Dr Reay reported that MRLK's fridge contained limited food and drinks and stated that MRLK 'usually skips breakfast and will eat at 2-3 pm, mainly lettuce and cereal, because it is "simple to organise"'.[24]

30. Dr Reay also conducted an interview with MRLK regarding her functional capacities in the six domains listed in subsection 24(1)(c) of the NDIS Act and set out the responses in table form which equally divided MRLK's 'good days' and 'bad days'.[25]

31. In relation to the activity of social interaction, Dr Reay reported that MRLK:[26]

can use the telephone, text, and email. She can attend group and community environments. However, she has very significant difficulties interacting in social situations and cannot socialise in a normal way due to her physical impairments. Her extensive bowel

problems, which disrupted her psychosocial development and exposure to social situations, has led to a pattern of excessive worry and avoidance about socialising with others. [MRLK] is highly anxious about being out in public due to her unpredictable bowel

symptoms which require vigilance and frequent management to prevent embarrassing

situations. She is socially isolated. She does not initiate social activities, tends to delay, or avoid social engagements due to her bowel problems and complications.

32. In relation to the activity of mobility, Dr Reay reported that she observed MRLK 'walking slowing and independently without aids', but MRLK 'reported significant difficulties with mobilising due to high levels of fatigue, pain and dizziness'.[27] Additionally, Dr Reay stated that:[28]

On her bad days (3-5 days per week) she can walk a maximum of 100 metres. She will spend the day resting in bed or sitting. Tends to avoid walking outside on bad days.

On a good day, when running an errand, she can walk for a 1km maximum before resting for 5 mins or so.

33. In relation to the activity of self-care, Dr Reay reported that MRLK 'has moderate difficulties in managing her own self-care and requires intermittent physical assistance and prompting from her mother'.[29] MRLK can 'brush her teeth, get dressed, shower every few days and wash her hair independently. She manages her toileting and stoma care independently. She manages her own medications'.[30]

34. In relation to self-management, Dr Reay referred to the statement from MRLK's mother that MRLK's decision-making ability is 'underdeveloped as is her ability to problem solve or see the steps necessary to completing a task'.[31] Dr Reay recorded that MRLK 'has difficulties managing her finances, she overspends and does not budget responsibly'. She further reported that MRLK is 'unable' to independently complete tasks such as 'planning, preparing and cooking meals, groceries/shopping, cleaning, laundry and attending her appointments' and noted that she requires a 'high level of assistance due to her stoma, pain, inflammation and severe fatigue'. Dr Reay also referred to MRLK requiring 'a high level of assistance to manager her diet' and the reliance on her mother for meals.[32]

35. Dr Reay gave evidence in this proceeding by MS Teams. She confirmed adherence to her report of December 2020 and said that it reflected her opinion of MRLK at the time of assessment.

36. Dr Reay told the Tribunal that she had been involved in one research study of 69 participants regarding the link between inflammatory bowel disease and fatigue. This included self-report scales for depression, anxiety and fatigue. The findings indicated that the strongest predictor of severe fatigue was whether a person had a high level of depressive symptoms and was female.

37. Dr Reay said her assessment of MRLK was 3 hours in length. She conducted a 'holistic' functional capacity assessment taking account of both physical and psychiatric impairments. This included a detailed interview about MRLK's abilities and limitations, a number of physical and mental health assessments, and observing 'a few' functional capacities, because Dr Reay was aware of MRLK's fatigue levels. These tasks were doing the laundry, emptying the dishwasher and making tea.

38. MRLK was unable to independently do the laundry due to heavy items. She uses an internal line to hang up washing. MRLK described the limitations of her daily activities due to pain and fatigue. She can put light items in the top drawer of the dishwasher and her brother manages heavier items and the bottom drawer. Dr Reay said MRLK can prepare simple meals, such as a sandwich.

39. Counsel for MRLK asked Dr Reay about the status of the questionnaires and reports she had used in her assessment. Dr Reay told the Tribunal that she chose several assessments that she had previously used in clinical work or research and selected those that were recognised, brief and that had been validated and widely used in clinical settings with good psychometric properties. She also chose items relevant to disabilities such as inflammatory bowel disease. Dr Reay said MRLK scored 'quite low' on the inflammatory bowel disease self-report questionnaire measuring quality of life and concluded that it indicated her Crohn's disease and poor quality of life was affecting her mental wellbeing. Dr Reay chose self-report scales that have been tested for their sound properties, including when compared to more rigorous scales and other detailed interview approaches. They are designed to ask specific questions and identify where a person is struggling and has difficulties. It will indicate how often the problem persists and therefore where to target intervention and can be re-used after intervention to assess whether it has been effective.

40. Dr Reay was asked whether the increase in MRLK's employment, from one day at the time of her assessment, to now working four days, changed the conclusions in her report. Dr Reay said it 'does not change' MRLK's own difficulties, such as with lifting things, putting on washing independently, cooking meals and going out. She could not 'get a sense' of how active MRLK is in her role, but considered she was 'not particularly active' and was not increasing the ability to undertake her own daily life activities that she 'struggles with'. Dr Reay acknowledged that the increased work hours was 'an improvement', although was 'still quite low' for someone with her qualifications and most people her age. She said she would like to know of any difficulties MRLK had with the increased hours, such as time off or lateness to know whether she is struggling in the role. Dr Reay was also unchanged in her opinion that MRLK had a substantially reduced functional capacity in the activities of self-care, self-management and social interaction and said there was 'no evidence of improvement'.

41. Counsel for the NDIA asked Dr Reay about MRLK's daily tasks. She told the Tribunal that on 'low functioning days' MRLK requires prompting, but agreed that she 'usually' dresses independently and 'sometimes' requires assistance for this task and also showering. Dr Reay agreed that MRLK can toilet independently.

42. Dr Reay told the Tribunal that MRLK can do her laundry, with limitations. She can wash her clothing and hang it out piece by piece. Pain and stoma care make it difficult for MRLK to pick up the washing basket and on low functioning days she will not participate in this activity.

43. In relation to food and meals, Dr Reay said she appreciated that MRLK's mother does a lot of cooking and provides food to the house occupied by MRLK and her brother. However, she was told by MRLK that she has 'a lot of problematic eating' by restricting her calories but then binge eating. Dr Reay said that people with Crohn's Disease need to adhere to a strict diet, therefore this erratic eating could be worsening MRLK's condition. Dr Reay's opinion was that MRLK's mental health symptoms mean she is 'very preoccupied with orderliness' and avoiding mess in her kitchenette, which is due to a combination of physical and mental health impairments. Dr Reay also said that a woman of MRLK's age would be expected to participate or take turns in cooking for the house, but she is only making sandwiches or 'easy food', such as cereal.

44. Dr Reay told the Tribunal that there was no reason why MRLK could not mop the floor. She further agreed it was 'possible' that MRLK's current functional capacity is better than at the time she was assessed, but wanted more details about the management of her employment. Dr Reay said that without having reassessed MRLK's mood, she could not say whether it would have improved due to her increased work activity. She said it was good that MRLK was engaging in increased work, but there was no evidence that she was now able to do certain things for herself. Dr Reay agreed that MRLK's ability to get out of bed and into the community 'seems improved', although she was 'unsure' whether the increased work demonstrated a high level of independent functioning, because Dr Reay did not know whether MRLK has support to get up and going and has previously relied on family to do so.

45. Dr Reay told the Tribunal she did not know whether MRLK has difficulties with her cognitive capacity. When referred to MRLK's work duties helping others with their own challenges, Dr Reay said she 'can't say' on the evidence whether MRLK has a cognitive deficit and at her assessment MRLK was 'having difficulties' with self-management, such as problem solving. This was based on her interview with MRLK and was 'common' with depression and mental health conditions. Counsel referred to the evidence of MRLK's mother that MRLK manages her medical appointments and has a comprehensive diary. Dr Reay said she did not disagree with this evidence.

46. In relation to social interaction, Dr Reay told the Tribunal that MRLK had a 'small network' of friends and had described being lonely and unsatisfied with her social support. She was disappointed not to have university friends and 'isolated herself'. Dr Reay said she was 'troubled' by the quantity and quality of social support MRLK was receiving based on her assessment in December 2020. Dr Reay agreed that MRLK is an intelligent woman and has no difficulties using the internet and social media.

47. Dr Reay was asked about MRLK's psychosocial impairments. She said these included problems socialising and functioning in roles, difficulty making friends, and that her symptoms of this condition were getting in the way of her functioning. These included getting out of bed, being reluctant to shower or eat breakfast and having obsessional thoughts. Dr Reay agreed that there was a suite of mental health issues that impede MRLK's functional capacity. Dr Reay was referred to her statement that MRLK requires an initial consultation with a psychiatrist to 'establish her diagnoses, treatment goals and plans, prescribe appropriate medications'.[33] Dr Reay disagreed that she could not diagnose MRLK's psychiatric conditions, these were confirmed as generalised anxiety disorder and other mental health issues through the self-report scales Dr Reay administered. However, Dr Reay agreed that, as a first step, MRLK required psychiatric assessment and treatment, from which she would benefit, but also said that further treatment would not remedy MRLK's psychiatric impairments. She did agree that it would ease this impairment and that there are treatments available that would benefit her, but Dr Reay was uncertain that MRLK would recover. Dr Reay also agreed that the intention of any such treatment would be to 'maintain and improve' what MRLK can do, but she was 'not confident' MRLK would 'substantially improve' or recover in light of her complex mental health conditions. Dr Reay did, however, agree that it 'might' reduce the frequency of MRLK's bad days. She also agreed that future treatment may lead to MRLK being more mobile and socially engaged and to an improvement in her functioning. Dr Reay told the Tribunal that it was 'possible' MRLK's functional capacity may improve following treatment but could not definitively say it would substantially reduce her difficulties.

48. Counsel asked Dr Reay about the frequency of MRLK's bad days. She told the Tribunal that MRLK had estimated these were 'overall' half of the time. Dr Reay relied on her observations of MRLK's functional capacities, the answers to questionnaires, MRLK's self-reporting and her mother's evidence. In this regard, Dr Reay agreed that a family member, while well intentioned, was 'not necessarily objective' and MRLK's mother's report was a subjective opinion of what she has to do for her daughter. Dr Reay agreed that it 'can be different' to the assistance MRLK requires and it was 'possible' that a person did not need assistance, which can be obscured by a family member's concern. Dr Reay also agreed that it was 'possible' the extent of MRLK's bad days was overestimated based on the reports of her family, but that it was 'probably half of the time' based on her 'best estimate'.

49. Dr Reay was again asked whether MRLK's increased work activity represented a better state than contained in her report. She said it was a 'good sign' that there has been an improvement in MRLK's functioning and ability to tolerate more days of work.

50. There was no re-examination of Dr Reay, however the Tribunal asked her whether she had asked MRLK to undertake any activities at the assessment in addition to those listed in her report, being laundry, emptying the dishwasher and making tea. Dr Reay confirmed she had not.

51. On 17 March 2021, Mr Dwyer provided a report in this proceeding following an in-person assessment of MRLK in February 2021, which relevantly stated that:[34]

[MRLK]'s functional capacity for completing her activities of daily living varies significantly. Key to understanding her functional capacity is to acknowledge that her tolerance for activity in between periods of flare-ups (remission) is much greater than her tolerance during a flare-up (estimated by [MRLK] as once per week).

This assessment was conducted on a day of remission (in other words, not during an episode of acute flare-up).

Whilst I accept [MRLK]'s reports of low function during periods of acute flare-up, I was unable to observe this scenario during my assessment and therefore I cannot definitely quantify function during a flare-up. However, I found [MRLK] to be a genuine and detailed historian, and therefore have no reason to doubt her self-reports of low functional capacity during flare-ups.

The functional assessment results detailed in this report revealed [MRLK] enjoys a highly independent level of function during periods of remission.

Analysis and interpretation of the medical reports indicates that due to the effects of her medical conditions, [MRLK] experiences difficulties undertaking tasks that involve:

• Moderate, heavy or forceful manual handling (lifting, carrying, pushing and pulling)

• Straining, exertion or activity involving pressure or compressive forces on the abdomen

• Sustaining activity participation despite high daily fatigue

• Persisting with and staying engaged with activity regardless of mood

• Inability to urgently access toileting facilities [emphasis in original]

52. Mr Dwyer's report indicated that MRLK was 'asked to demonstrate, or alternatively simulate, all tasks where possible'.[35] Where tasks were not directly observed by Mr Dwyer, such as showering and toileting, he drew assumptions regarding MRLK's functional capacity 'based on observation of other tasks with similar functional demands, supplemented by information provided by [MRLK]'.[36]

53. Mr Dwyer gave evidence at the hearing by video using MS Teams. He confirmed adherence to his report from March 2021 and told the Tribunal that his opinions contained therein were true and correct. Mr Dwyer told the Tribunal that his assessment process entailed three primary areas, being medical information of the person, his own observations during assessment and the individual's evidence. The latter is an 'important component' and provides context in relation to a person's condition and assists in preparing his report. Mr Dwyer attended MRLK's residence for two and a half hours in February 2021. He acknowledged that he was only privy to what he observed on the day of the assessment.

54. Mr Dwyer told the Tribunal that his assessment of MRLK included a review of detailed written information and his observations at assessment. He stated that MRLK's condition 'clearly varies' on particular days and she was asked to describe those differences. This process was described as 'organic' and drew on his twenty-year experience of undertaking home visits and assessments.

55. Counsel asked Mr Dwyer to provide an overview of his major findings and conclusions. He told the Tribunal MRLK faces a 'difficult situation'. She is dealing with conditions that are 'unpleasant' and impact her life. Mr Dwyer said his 'overwhelming feeling' after the assessment was that MRLK's capacity and independence fluctuate. She has periods of 'worse functioning', best described as an 'acute flare', which can occur with Crohn's Disease. As a result, it was a challenge to assess the mix of MRLK's good and bad days. He ultimately found that, on average, MRLK had one day each week with a 'really poor level of functioning'. He again acknowledged that he can only speak about MRLK's function that he witnessed on the day of assessment. A 'bad day' entailed MRLK not wanting to leave her home or see anyone; she will go from bed to bathroom and not want to go out. MRLK had told Mr Dwyer that the day of assessment was a good day. This has to be weighed against her functioning on other days. MRLK was working three days each week and can engage in light domestic activities and care of her personal space, walk around the yard and access the community with her car. Mr Dwyer described MRLK as a 'lovely and caring person' who gets fulfilment from helping people as a disability support worker.

56. Mr Dwyer told the Tribunal that on MRLK's better days she can get up, drive and present to work, she is able to organise the collection of clients in her car, take them to essential community services such as the doctor, chemist and bank. She was working 9 to 11 hours each week at the time of his assessment and every second Monday MRLK was going to hospital for infusions. Fridays were allocated to other tasks, which was said by Mr Dwyer to be the day the assessment was conducted with MRLK having worked the three previous consecutive days on Tuesday, Wednesday and Thursday. Mr Dwyer said this was 'more difficult' than working every second day, which would allow more recovery time. At the time, he considered MRLK had capacity to increase her work days, which was said to also be MRLK's view. MRLK had told Mr Dwyer that she felt 15 to 20 hours might be her 'maximum capability'. Mr Dwyer said he did not consider MRLK would be able to sustain full-time employment, but 15 to 20 hours 'felt right'.

57. Counsel referred to Mr Dwyer's functional assessment in his report and asked about the methodology. He said the five columns represent an overview of a person's capabilities. He said 'a lot of people are hard to place', especially those with fluctuating conditions. It was 'common' that someone with fluctuating conditions may meet criteria in some aspects of functional capacity. Additionally, on a better day a person can be more independent in a particular task, while on another day rely on external assistance. Mr Dwyer said MRLK was a 'stark' example of having better functioning days and acute 'flare' days.

58. In relation to the domestic activity of 'house cleaning' in Mr Dwyer's report, this comprised a number of activities, from light duties to heavy domestic duties. Mr Dwyer told the Tribunal MRLK demonstrated a capacity for light household cleaning, such as wiping a bench and vacuuming using a stick vacuum. He accepted MRLK's report that on days of lesser functioning she cannot do heavier tasks, such as scrubbing the bathroom, and these would not be assisted by modifications.

59. Mr Dwyer told the Tribunal that MRLK impressed him as someone quite motivated and resilient. She is clearly doing her best to deal with circumstances she has faced since childhood. Mr Dwyer said the emotional impact of a person's condition does not dictate their capacity and the provision of assistance by family members does not indicate that it is required. As a result, a person's perception of their capacity is one component of an assessment.

60. Counsel asked whether MRLK presented as an optimistic person in the context of her conditions. Mr Dwyer said over the course of his assessment, MRLK's disposition regarding her conditions 'fluctuated'. She was 'understandably down' about her circumstances, but also displayed optimism and impressed as someone who had 'not given up on life' and attempting to 'do her best' give the circumstances, which was evidenced by building up her hours of work. Mr Dwyer described MRLK as 'very cooperative, lovely, open and genuine', and a 'good historian'. She was 'very compliant' with the assessment process and forthright in saying what tasks she could manage and what elements she could not perform. MRLK was said to be willing to do as much as she was capable of on the day. She always has symptoms, but she was having a 'better functioning day' at assessment. In this regard, Mr Dwyer told the Tribunal that his use of the term 'remission' in his report did not mean to imply MRLK's symptoms were in remission, but described a 'better functioning' day. Mr Dwyer said his assessment did not involve discussing MRLK's capacity with anyone else, including her family. Mr Dwyer told the Tribunal that if a person needs an advocate or support person he will 'seek that out'. In MRLK's case, because she clearly articulated her lived experience he did not need to seek a family report. He had available all the necessary evidence, including because MRLK was 'quite an impressive historian'. He was told by MRLK that day was a 'better functioning day' and if she was experiencing an 'acute flare' she would have cancelled the appointment. Mr Dwyer said he did not consider anyone other than family had seen MRLK's bad days.

61. Mr Dwyer told the Tribunal that he did not administer any questionnaires or tools to obtain a more objective or statistical picture of MRLK's circumstances. While there are standardised assessments available for a number of circumstances, these are used when it would add value or there was information lacking. He said standardised assessments, while providing information in a concise way, are ultimately a self-report from the subject of the assessment. These should only 'supplement' an occupational therapist's assessment. In MRLK's case, Mr Dwyer was satisfied with the information she provided at the time of the assessment and all of the additional material to 'give clarity on what her days look like'. Mr Dwyer said he had 'enough self-reports' from MRLK during her assessment and on the written material he had been provided.

62. Mr Dwyer confirmed that MRLK would have 'difficulty' with moderate, heavy or forceful manual handling, such as lifting, carrying, pushing and pulling, but was not saying she cannot do this activity. He said MRLK gave examples of doing those activities, such as lifting to close the boot of her car and the circumstances are 'variable'. Mr Dwyer agreed that there was an upper limit of function beyond which MRLK could never operate and a certain weight or force at which she would be compromised. He agreed that, if not for her conditions, MRLK would have a better tolerance. Mr Dwyer said, based on what he knows, MRLK could shut the car boot, but also accepted that some days she could not, although this could be achieved in another way, with physical assistance or assistive equipment. For example, Mr Dwyer acknowledged that it was 'potentially reasonable' to assess MRLK's capacity to undertake 'fetch/carry tasks' as requiring physical assistance on poorer days of functioning, together with also being 'independent' given the 'spectrum' of her capacity.

63. While grocery shopping was not observed, Mr Dwyer accepted MRLK's report that she can do small, light, personal shopping. She lives with her mother on the same property and her mother cooks the main meal for the family and does the bulk of the grocery shopping. As a result, the 'reality' is that MRLK's current role is to not prepare meals. Mr Dwyer said pushing a shopping trolley with multiple bags and then carrying them 'would be difficult' and 'quite problematic', but not necessitating physical assistance.

64. Mr Dwyer said there was 'no question' MRLK has bad days, but it was hard to say what they look like and their frequency. He acknowledged the difficulty for MRLK due to her conditions and said he had tried to be 'as thorough and fair' as he could in his report even though he did not witness a 'bad day'. Mr Dwyer said it was 'possible' that MRLK had more than one bad day each week; he had attempted to come up with an average for 'really bad flare up days' based on what MRLK reported. He said it 'appeared to be one day on average', but the fluctuating nature of MRLK's symptoms make it 'difficult and variable' and some weeks are 'probably worse' and some 'probably better'. Mr Dwyer said MRLK's heavy pain medication was reported to be used once every two weeks; 'sometimes' it was more and sometimes less. Mr Dwyer told the Tribunal that MRLK's bad days are 'very bad' with 'not much independence to be expected' and on 'better days' she still experiences issues regarding fatigue and capacity tolerance. In this regard, MRLK's life was said to 'probably' exist between 'very bad and average' days.

65. There was no re-examination, however the Tribunal confirmed with Mr Dwyer that he had assessed MRLK on a Wednesday, not a Friday as he had previously stated. In examination-in-chief, Mr Dwyer told the Tribunal MRLK had worked the three previous days and he had conducted the assessment on a Friday. Mr Dwyer confirmed his understanding that MRLK's normal work days were Tuesday, Wednesday and Thursday, but he was unaware whether MRLK had worked on the day before the assessment, being a Tuesday.

66. MRLK provided two witness statements in this proceeding dated 29 October 2020 and 23 March 2021.[37] The Tribunal has considered these statements in preparing these reasons. At the time MRLK made her first witness statement in October 2020, she was unemployed and had been receiving the Disability Support Pension since 2013. MRLK also stated that her mother 'acts as my carer' and cooks 'most meals for me'. These are eaten with other members of the family. MRLK's mother was said to complete 'the larger and more complex domestic tasks including ironing clothes, changing bedsheets and washing the floors for me'.[38] In her first witness statement, MRLK further described the 'fairly low maintenance' required of the flat she shares with her younger brother: 'he does most of the strenuous housework and I will try to do the small jobs while he is at work', but she does 'not rely on him much further'.

67. MRLK has been in a relationship for over two years and her partner provides 'a lot of support on a daily basis'. MRLK said he 'often prepares meals for me, he transports me places, does the domestic duties around my portion of the flat, attends doctor's appointments, helps with my medication and care (e.g. heat packs and tea etc.)'.[39] MRLK otherwise described a 'very limited social network outside of my family', which comprised a 'close circle of friends'.

68. MRLK noted that her diagnosed physical impairments were as follows: 'fistulising Crohn's Disease, Perianal Disease, Stenosis of the rectum and anus and small bowel Stoma'. In October 20201, MRLK had a 'temporary loop ileostomy that will be revised to a permanent end colostomy early next year. This means that the second half of my colon will be removed, and my anus will be sewn shut which will involve several chronic wounds'.[40] MRLK also described a range of psychological impairments, but noted that she was not currently seeing a psychologist due to cost.[41]

69. MRLK's witness statement from October 2020 sets out the impacts of her impairments on her daily life. These included difficulty mobilising within the home and community, such as being 'unable to walk more than 100 metres' on '3-5 days per week'.[42] She also finds it 'extremely difficult to engage in social interaction and self-care'. This amounted to at least twice a week being 'unable to engage in any social interaction', including with her family, and 'at least 5 days out of the week' feeling unable to engage in some self-care activities including showering'.[43] MRLK also said she was 'unable to get out of bed approximately 2 to 3 days a week' and on these days requires 'someone to encourage me to eat and shower'.[44] However, MRLK also stated that 'for the most part' she is able to complete 'personal care tasks like showering and dressing' on her own, apart from after having been in hospital.[45] MRLK also referred to keeping a 'written daily planner to keep track of all my medical and other appointments' and she is largely 'able to remember appointments and rarely miss any'.[46] She also uses her phone to make notes during appointments because otherwise she will forget the information.

70. MRLK gave evidence to the Tribunal by video using MS Teams. She confirmed her witness statements of 29 October 2020 and 23 March 2021 were true and correct at the time they were made. MRLK was also referred to two statements she made in May and June 2020 for her NDIS application.[47]

71. MRLK lives in a separate unit on the property owned and occupied by her mother. She shares this two bedroom 'granny flat' with her 22 year old brother. MRLK is currently a disability support worker and provides support to NDIS participants in two hour sessions. She attends their homes to provide social support and can drive them to attend to tasks such as filling prescriptions. These clients are close to MRLK's home so she does not have to travel too far. She works four days each week and for four hours a day.

72. MRLK told the Tribunal that she had surgery in July and August this year. The first was major surgery to reverse her temporary ileostomy and replace it with a permanent colostomy. The second surgery followed the removal of a tumour. The colostomy was 'meant to be easier' to manage than the ileostomy. However, MRLK said that after two months the situation was similar to the ileostomy. The ileostomy required emptying ten times each day, and it was now eight times with the colostomy, although the latter was 'more odorous' and 'gaseous'. She has the same toileting requirements and the same bags, but uses a different side of her stomach. The drainable bag is undone by Velcro and emptied. She needs to clean up and inserts solution to aid future emptying and drops for odour control. MRLK told the Tribunal it is a 'quick process', but requires a toilet and 'various products, such as lubrication, the drops, wet wipes and extra colostomy bags.

73. A change of colostomy bags requires a barrier ring, adhesive spray and wipes to protect skin, skin barrier spray, lubrication, odour drops and a rubbish bag. This is performed once daily, preferably at home unless there is an emergency. To this end, MRLK carries a kit outside the home if required. The bag is usually changed in the morning, but sometimes the evening.

74. Counsel for MRLK referred her to the paragraph in her October 2020 statement regarding the 'consequences' of her physical impairments.[48] She told the Tribunal that she experiences headaches 'probably every single day'. MRLK takes medication, but this was said to be 'not really effective'. She takes Panadol 'almost daily'. Her migraines are less frequent. MRLK suffers fevers as a result of the 'constant inflammation' in her body. This is an uncommon side effect of her condition. She 'always feel feverish', sweaty and clammy and this is 'probably' five times each week, but 'usually more'. MRLK has 'almost constant' joint pain specifically in her feet, ankles, knees, hands, wrists and elbows, together with back pain. Her feet and hands swell. This affects her walking and stamina over 'distances'. It causes 'a lot of pain', writing was 'difficult with university'. She cannot take anti-inflammatory medication because of her propensity for intestinal bleeding. Additionally, MRLK 'usually always' has a mouth ulcer due to inflammation. She uses salt mouth washes and steroid creams. MRLK said that her rectal bleeding remained the same and was 'constant' due to her rectal disease. This causes an 'urgency' to pass either fresh or old blood. She told the Tribunal that she is also incontinent. The bleeding was said to be 'pretty significant and constant' and required her to use the toilet 'a lot' and as much as due to her other conditions. Depending on the day and how MRLK is feeling physically, she may go to the toilet ten or more times to address this issue. She has general discomfort in her abdomen due to this condition, with the contractions and pressure causing 'really bad pain' requiring toileting.

75. MRLK referred in her statement to being incontinent due to 'fistulae'. The Tribunal was told that a 'draining fistula' occurs when two pieces of inflamed tissue cause a tunnel to occur between them. MRLK is currently aware she has five. These can 'flare' and become infected. She is 'never really asymptomatic'. It causes vaginal discharge due to pressure and others, such as in her bladder, cause urinary tract infections. She is required to change a liner or pad five to six times each day and has no control over discharge. On some 'bad days' there can be 'so much more', but MRLK was unsure what causes an increase. MRLK's rectal bleeding and fistula have been present for more than five years.

76. MRLK further told the Tribunal that her abdominal pain radiates to her back and rectum. It is not constant and comes 'in waves'. Her fatigue results in lethargy and not feeling rested. MRLK reported having been told she has chronic fatigue syndrome. The fatigue leads her to feel depressed, overeat and avoid exercise. She does not have energy and falls asleep 'easily'. In addition, MRLK's anaemia can lead to fatigue and low energy. She does not feel 'very good' and has had iron infusions, but their impact decreases after a few months due to her constant bleeding. Furthermore, MRLK told the Tribunal she suffers from malnutrition, which causes dehydration and electrolyte loss. She requires potassium infusions and is required to drink a lot of water and eat 'a lot of salt' with foods.

77. Counsel asked MRLK to describe the impact of these symptoms on her willingness to engage in social activity. She told the Tribunal that she experiences 'a lot of embarrassment' and does not want to burden people around her with these problems. MRLK said she constantly withdraws and is not a very social person. She 'sometimes' cannot physically participate, but the mental health condition leads to her having 'no self-esteem', retreating and isolating. MRLK said she is 'constantly' going to the toilet and requires medication. She cannot eat what everyone else does and she cannot drink alcohol or walk long distances.

78. MRLK was asked whether there were any aspects of self-care that she was unable to manage independently. She said 'sometimes' this was changing her stoma bag. MRLK's boyfriend changes it when she is feeling 'so unwell' that she could not stand. Typically this is changed near the sink in her bathroom, but sometimes she needs to lie down and MRLK's boyfriend will change it and clean up. This was said to have happened 'a lot more' prior to her recent surgery to insert the colostomy. After the surgery, it was said to now be 'semi-regularly'. MRLK said that 'sometimes' she requires assistance with showering, which was more specifically identified as washing hair or 'hygiene'. MRLK's mother will assist and sometimes her boyfriend will do so after hospital admissions. She told the Tribunal that she cannot lift up her arms for long periods of time, she gets low blood pressure and someone is required to be present. MRLK confirmed that she has not lived independently of her mother and lived in the main family home prior to moving into the 'granny flat' on the property.

79. Counsel for MRLK asked her about domestic tasks related to the management of the flat. She said it is her mother's property and she maintains everything external to the property. MRLK's brother takes care of the communal areas in the flat, including the loungeroom which she does not use. She does not use the kitchen, but puts her cups in the dishwasher. MRLK hangs up the washing and is responsible for her bathroom and bedroom. MRLK's brother vacuums the flat and her boyfriend cleans when staying. MRLK told the Tribunal that she can make the bed, but her boyfriend will if present.

80. MRLK said that emptying the dishwasher uses 'a lot of energy', including stretching and bending to cupboards. She avoids this task in order to conserve energy, together with the associated pain. MRLK also said that she does not have 'the stamina' to vacuum and mop and 'wouldn't be able to do it' so leaves it for others.

81. MRLK was asked about her mobility limits due to joint pain. She was once assessed by a physiotherapist and 'could walk 200 metres' before she needed to sit. This was 'different' depending on the day and MRLK does not go for walks and has not recently walked more than a couple of hundred metres. She occasionally uses a wheelchair that the family had for her late grandmother.

82. Counsel took MRLK to the section of her October 2020 statement listing her medications. Vedolizumab is a four-weekly infusion MRLK has been having since 2016. She has maintained these infusions because she has not 'become worse'. The infusion process takes around three hours at Canberra hospital. She attends monthly on Mondays because it is a non-work day. MRLK can drive to these procedures, but prefers not to because she can feel 'quite sick' afterwards. Golimumab is a four-weekly injection that MRLK administers at home. She collects this medication at the hospital pharmacy and it is stored in the fridge. When she takes it out, it is warmed up, she cleans her stomach and administers the injection. This medication was said to be 'experimental' and has been used together with the infusions consistently since March 2020. It was prescribed by her gastroenterologist at hospital. The Mirena coil is a five-yearly intrauterine contraceptive device that assists during menstruation when MRLK's Crohn's Disease 'becomes worse', with 'intense pain'.

83. MRLK takes Lexapro daily for her mental health. It was prescribed by her general practitioner, Dr Balu and she has 'occasionally' increased the dosage from 20mg to 40mg but this resulted in 'too many side effects', such as suicidal hallucinations or delusions, weight gain and 'emotional irregulation to the extreme'. Periactin was prescribed by MRLK's immunologist for her allergies, but it also helps with her 'persistent headaches', although it is 'not always effective'. MRLK also takes Telfast for allergies. MRLK takes Circadin daily for sleep and Nexium approximately twice weekly when required for indigestion and reflux, although these symptoms occur 'more frequently'. Endone is taken every second day for abdominal and joint pain when MRLK becomes 'fed up' with the pain. This is taken together with Panadol Rapid. The medication Ativan is used to 'settle' MRLK's mood once weekly. Usually in the evenings MRLK can become 'overwhelmed', 'sad' and 'spiral into panicky situations'. The slow release pain medication Targin is taken when required for long days. MRLK also takes another pain medication, Palexia.

84. MRLK was asked about psychological treatment. She uses a counselling service, which is presently limited to seven sessions, although further sessions can be requested. These occur irregularly every few weeks. MRLK does not think these are 'intensive enough' and not suitable for someone with complex mental health issues.

85. Counsel for the NDIA confirmed with MRLK that her employment is currently four days each week. When the occupational therapist, Dr Reay conducted her assessment in November 2020, MRLK was working one day a week. And when the occupational therapist Mr Dwyer performed his assessment in February 2021, MRLK was working three days a week. This is now four days and the hours of work have been maintained throughout the COVID-19 pandemic. MRLK drives her own car to client's homes, which are all within a 5 kilometre radius. She completed orientation online with the NDIA, but there was no specific formal training, although she does have a university degree. MRLK also undertook an online module on how to don and doff Personal Protective Equipment. In this regard, she confirmed that she can access the internet.

86. MRLK drives clients to, and waits with them at, the pharmacy, she provides emotional and social support, befriends clients and helps to facilitate the achievement of their goals. MRLK assists with payment of items, carries medication back to the car, assists in purchasing groceries and helps clients do daily tasks, although nothing laborious. In essence, MRLK helps disability clients 'do what they want and need to do'. All of them have a support plan and she knows what they can and cannot do. Due to MRLK's conditions and energy levels, she does not do shifts involving cleaning, personal care or physical assistance, only social support. Her employer was said to be 'fine' with these requirements. MRLK described working three days per week as the 'peak' of her fulfilment in the role. She was convinced to work an additional day, but feels 'overworked' and would like to revert to three days each week. MRLK has had time off work due to her recent surgery and this Tribunal proceeding. She described feeling 'fulfilled' with the form of social interaction experienced through her employment.

87. On work days, MRLK said she will get up out of bed; 'sometimes' people need to call her because she can sleep in, although can physically get up. She does not shower before work and does not eat until she returns home from work because she avoids using client's toilets. MRLK told the Tribunal that she can physically prepare a bowl of cereal for breakfast, brush her teeth and drive to work. MRLK said that she will independently manage her colostomy bag while at work. Her boyfriend 'sometimes' helps with this task. When he is unavailable, MRLK's brother can bring supplies and needs coaching, if required to assist.

88. Counsel for the NDIA asked MRLK about her joint pain and mobility. She did not think she could walk around the block because of the pain, discomfort and swelling in her feet. She agreed that she walks with clients, but this is 'not far' and they use disability parking permits at the shops. They also often do not want to walk far and this is 'mostly 20 metres' around the supermarket for their shopping needs. MRLK said she feels 'horrible' after a shift at work.

89. In relation to housework, MRLK told the Tribunal that she can make her bed and keeps it 'easy to maintain'. She did not think she could live independently of her mother. MRLK acknowledged that she had not tried to do so, but had 'thought about it a lot'. If anything, she would move in with her boyfriend, but her mother would still be 'a big part of my life'; they were 'never really distanced' from each other. MRLK accepted that there are things her mother does for her out of love, but said she would be 'a lot worse off' than she is now if she did not have that support. MRLK agreed that she could clean up something spilt on the floor, but would not do so immediately so as to conserve energy. This was also subject to her level of pain. MRLK's brother will do it if he is at home. If people are not at home, MRLK said she could do 'small things' by herself, but this was not equivalent to 'good enough', she was always 'in deficit'. However, she agreed that she can use a broom, mop and vacuum cleaner. She can load and unload a dishwasher, but does not lift heavy items because it was 'too difficult' to put them away in the cupboards due to their layout. The flat has cooking facilities in a kitchenette with a fridge which she can open to remove items and close. She can cut fruit, and will make a tea or coffee if feeling well.

90. MRLK and her boyfriend met through friends at an Australia Day barbecue at her closest friend's house, an environment in which she felt comfortable. She does not go to these types of events regularly. MRLK said she was 'really inhibited' before she had the stoma, which provided some more 'independence'. She has a close circle of friends, particularly three girlfriends she has known since school but to whom she became closer since 2015. They go out to eat together at restaurants 'every couple of months'. However, MRLK said they do not talk about her personal life or details of her medical issues. Her boyfriend comes over to her flat and they 'hang out and watch television'. They 'don't really go to movies', including because MRLK dislikes sitting for long periods. They do go out for dinner for their birthdays. MRLK will drive to her boyfriend's house, but 'not much'. She stays at his house after a procedure at hospital because it is close and keeps medical supplies at this residence.

91. MRLK was asked about her references to 'good days' and 'bad days'. A 'bad day' is when she has a 'more than normal upset stomach', cramping, bleeding, more depressed feelings, anxiety, OCD, an episode of uncontrollable crying requiring consoling. At a 'normal level', MRLK is 'still quite depressed', in pain and has her medical conditions. MRLK confirmed that her OCD had not been diagnosed. She also told the Tribunal that her depression had not been diagnosed by a psychiatrist. MRLK has 'never' seen a psychiatrist, but her GP is aware of her issues but she cannot afford to see a psychiatrist. Counsel referred MRLK to the section of her October 2020 statement regarding 'psychosocial impairments', including Obsessive Compulsive Personality Disorder and Major Depressive Disorder. She confirmed that there was no diagnosis for these conditions, but said she would benefit from treatment for them and a diagnosis was 'not essential'. It was put to MRLK that if these psychological conditions were diagnosed, effective treatment could be undertaken. She had 'already done treatment to a degree', but had not exhausted psychological services. She considered that she had 'done everything available', despite not seeing a psychiatrist or psychologist. Cost was again said to be a factor.

92. MRLK was also referred to the section of her October 2020 statement in which she said that on a good day she could 'complete basic tasks around the home' and 'engage in social interaction' and also to hoping to 'reignite my passion for life again'. She was asked whether this relates to how she feels mentally. MRLK said her physical and mental conditions are 'tied together really closely' and 'generally' a bad physical day also entails a 'bad mental health day'. She did 'not necessarily' agree that her ability to function properly relates to her mental health status.

93. By way of re-examination, MRLK was asked whether she generally had a bad physical health day first followed by poor mental health. She thought so and said when she feels physically unwell, she feels less mentally resilient and 'worse' psychologically. For example, MRLK said she had panic related problems when not 'really bad' physically, but primarily her physical health leads to mental health issues.

94. MRLK's mother provided a witness statement dated 18 March 2021 and a separate document entitled 'Carer's Statement' dated 1 December 2020.[49] The Tribunal has considered these documents in the preparation of these reasons. MRLK's mother, in her March 2021 witness statement said that she assists with 'washing, provision of foods (supply and preparation of all meals), utilities and bills associated with the property, gardening, and general upkeep'.[50]

95. In her Carer's Statement, MRLK's mother described her observations of her daughter's 'abilities or difficulties' in the six activities under subsection 34(1)(c) of the NDIS Act. In relation to self-care, this included that MRLK 'can sometimes find it difficult to dress herself' and requires prompting to 'shower and self-care' due to 'fatigue, stress and depression'. MRLK's mobility was said to be 'limited by her mood and her ability to cope on the day' and she 'will always avoid driving'. On self-management, MRLK was said to have an 'underdeveloped' decision-making and problem solving ability. MRLK's mother said her daughter 'finds it difficult to make and keep friends and interact with people known or unknown, socially'.[51]

96. MRLK's mother gave evidence to the Tribunal by MS Teams. She confirmed adherence to her written statements from December 2020 and March 2021. She told the Tribunal that they were true and correct when signed.

97. MRLK's mother has 'good observation' of her daughter on a daily basis, such as when leaving the house or going shopping. MRLK's mother does not generally see MRLK in the morning, but will know of her movements. They 'touch base' regularly and she is 'alerted' if something is wrong; she will know what MRLK is doing. MRLK's mother continues to maintain telephone and text message contact during the day. They are 'quite closely connected'.

98. To this end, they do have physical contact with each other. MRLK's mother will deliver stoma supplies or parcels to MRLK. In the evening, MRLK's mother touches base around dinner time. The meal is prepared by MRLK's mother and shared or left if MRLK's mother leaves the property in the evening. Occasionally, MRLK's mother will have to take the meal to her daughter and they discuss the day and upcoming activities.

99. MRLK's mother assists with driving her daughter to hospital for day admissions, to doctor's rooms and if she is required to collect MRLK's supplies. MRLK is not good at carrying things or walking distances. If they go out together, MRLK's mother will drive and MRLK's boyfriend will drive her if they are going out socialising.

100. MRLK's mother told the Tribunal that on a 'good day', MRLK will start with a list of what she is required to do, but there are 'always limits' and she can only do 'some things'. MRLK will often plan to do three or four things, but will discuss these with her mother. There are always 'outs', so she can physically and mentally complete the day. MRLK's mother said there were a lot of 'ifs' in a good day for her daughter, such as 'if I can drive there' or 'if I can't drive there'. Plans are made 'with limits' and very organised in a way that she could complete them with support. On a 'bad day', MRLK will have to come back immediately to change clothing if there is a device failure or she had a confronting situation at a service provider or a difficult time at the hospital. A bad day would be one with no available supports and MRLK having to abandon all plans. MRLK's mother said to not confuse her daughter's public 'togetherness' with the level of her incapacity. She told the Tribunal that MRLK will not 'ever talk about bad days; nobody sees them'.

101. MRLK's mother said it is 'quite amazing' that her daughter can work on 'bad days', although she has required time off and been in hospital, but it has also propelled her to have better days. In this regard, work is having a 'positive effect' on MRLK 'mentally'. The nature of the work is very important because it can be undertaken for a certain amount of time unlike other jobs. MRLK's mother told the Tribunal that her daughter 'needs to rest' on a work day and is 'sometimes so tired' she cannot eat anything. To this end, MRLK's self-care 'goes out the window' after a shift and although 'she's not at her best', she feels accomplished psychologically. She always has someone's story to relay and things other than her impairments to talk about.

102. MRLK can make cereal and 'basic things' to eat. There is a new kitchen, but it is largely unused by MRLK and her brother. MRLK has 'basic supplies' and microwavable meals and snacks and 'does not want for anything'. Food is prepared at MRLK's mother's house. MRLK's mother told the Tribunal that she helps her daughter shower 'on occasion', including provision of a shower chair and washing her hair. This is usually at a 'crisis point', when she has a fever, post-operatively or when MRLK is getting ready for hospital.

103. MRLK's mother confirmed that her daughter can get around by driving independently, including by going to the shops. She also drives to work four days each week by herself.

104. MRLK's mother told the Tribunal it was a 'family tradition' to eat together. This included when MRLK was studying and her brother was doing his apprenticeship. This was said to have 'morphed' to a situation where MRLK's mother ensures her daughter has a meal if required. In this regard, MRLK uses a microwave.

105. MRLK's mother said MRLK can tidy the flat in a 'minimal sense of the word'. She can hold a vacuum cleaner, but is often in pain and this is something her brother would do. MRLK's mother was unsure whether MRLK can vacuum since the permanent colostomy, however MRLK was said to preserve energy expenditure for tasks. If pressed, she would get the 'dust buster' out because she is a 'very tidy' person.

106. MRLK's mother was taken to her written statement that MRLK was confined to the house for at least four days per week due to her impairments. She accepted that MRLK was now working four days per week, but told the Tribunal that she was adding up MRLK working half days and requiring a half day to recover, with other non-work days involving minimal tasks and rest.

107. MRLK's mother told the Tribunal that her daughter has an 'extensive diary' and attention to detail. She runs her own diary and it is 'fantastic'. MRLK's mother agreed that her daughter 'very much' has the cognitive capacity to organise herself. There was said to be no problem with MRLK keeping track of appointments, but with physically attending them.

108. MRLK's 23 year-old brother provided a witness statement in this proceeding dated 18 March 2021.[52] The Tribunal has considered this document in preparation of these reasons. MRLK's brother stated that his mother 'supplies a lot of the meals' to the flat he occupies with his sister and 'I reheat these for myself and my sister'. MRLK's brother also barbecues food. He helps MRLK 'with everything that needs to be done in the house on a daily basis', including cleaning and tidying. He makes them 'dinner boxes' and does the washing after work. MRLK's brother also assists with lifting her boxes of medical supplies. He stated that MRLK 'needs support with cleaning and food set up/clearing' and is 'unable to clean floors or lift and or move furniture in order to clean surfaces'.[53]

109. MRLK's brother gave evidence to the Tribunal by video using MS Teams. He confirmed adherence to his written statement of March 2021 and told the Tribunal it was true and correct. MRLK's brother has lived with MRLK in their granny flat since approximately 2016.

110. He was referred to the passage of his statement in which he said that he assists MRLK 'with everything'. MRLK's brother said this 'very much' continues; her conditions are permanent and she has been 'battling' them 'all her life'. He said they 'seem to be getting worse and worse'. MRLK's brother told the Tribunal that her working four day each week has had a 'negative' impact on her ability to do other things in life, such as around the house. He said MRLK going out and working 'wears her down', she comes home and 'goes to bed straight away', is 'not present at family things' and 'has a nap'.

111. MRLK's brother said that he helps on both her good and bad days. A 'bad night' was said to be if her colostomy bag explodes, she would not sleep, so he will need to clean up and MRLK will be a 'write off for the rest of the day'.

112. Counsel for the NDIA asked MRLK's brother whether their mother was supplying them meals. He confirmed this was correct, and 'more often than not' they eat from frozen meals supplied by their mother or catered gym meals. MRLK's brother said their mother's meals were 'mostly provided' to MRLK, but also provided 'to both' of them. MRLK will 'go without food' if she does not receive assistance. He pays board to his mother, but understood his sister may not.

113. It was put to MRLK's brother that his help around the house was done out of love for his sister. While acknowledging that he loves his sister, he said he provides this support 'because she needs it'. The Tribunal was told that MRLK cannot mop a floor and is not meant to perform physical tasks due to her stoma. However, he agreed that she can perform light movements without problems and can get in and out of a car. MRLK's brother also accepted that she could do tasks he currently does to make it easier for her because 'it's my role'. He agreed that MRLK can brush her teeth, shower, microwave meals and make a tea. MRLK's brother told the Tribunal that 'at times' it was difficult for her to come and go from their house, but that she can get to work and visit her boyfriend's house.

114. Counsel referred MRLK's brother to his written statement that, on a good day, MRLK can 'have a shower and dress herself and attend a doctor's appointment'. He was asked whether he accepted that MRLK can do more than this on a good day, such as attend work. He agreed, but said they 'might not all be good days'.

115. MRLKs' brother said he was 'very much' worried about his sister's mental state; she is 'trying to work on mental health'. However, he did not agree that this would improve what MRLK can do from a functional perspective, it was 'just for more stability' and she is 'very worn down'.

116. MRLK's boyfriend provided a witness statement in this proceeding dated 23 March 2021, which has been considered by the Tribunal in preparing these reasons.[54] He stated that there are times when MRLK's conditions 'render her unable to get out of bed let alone perform day to day tasks'. This occurs 'weekly, on average about 2 days per week'. On other occasions, MRLK's conditions result in her being 'unable to leave the security of her home or her bedroom due to the special treatment, care and equipment that is needed to support her and manage her symptoms'. This can occur 'several times a day during periods of ill health and up to several times a week during periods where she is feeling more able to manage on her own'.[55] MRLK's boyfriend further stated that she is 'unable to perform even mild amounts of physical activity, including cleaning her house/chores like changing bead [sic] sheets etc, cooking meals, walking distances greater than 100 meters, mild exercise etc. without sustaining immense exhaustion that can sometimes take her days to recover from'.[56]

117. MRLK's boyfriend gave evidence to the Tribunal by MS Teams. He confirmed adherence to his statement of March 2021 and said that it was true and correct. MRLK's boyfriend was asked for his observations of MRLK's ability to engage in housework since his statement from March 2021. He told the Tribunal it had 'declined as her medical condition had started to become more complicated', therefore her ability to complete housework diminished. MRLK had told him that her stoma had been developing complications that he did not fully understand, but she was suffering from a 'constant prolapse' of the temporary ileostomy, as well as swelling and inflammation and additional 'complications'.

118. MRLK's boyfriend agreed that he had seen her walk more than 100 metres, but could not identify a specific example. It was not something she does 'frequently' and potentially monthly depending on her health. Walking is undertaken at a much slower and gentler pace than for a fully able individual. MRLK's boyfriend told the Tribunal that before the COVID-19 restrictions and subject to her health, they would catch up three to four times a week, the 'vast majority' was at home. They would 'occasionally' socialise with others on a monthly basis, MRLK's health permitting. At these times, her boyfriend would collect and drive MRLK to the venue, spend time with 'our friends', usually at someone's house so she can sit or lie down if required. MRLK 'sometimes has needed a bed or couch' to lie down. These visits are 'at most' around three to four hours because MRLK becomes 'extremely exhausted' and requires rest in a comfortable environment.

119. MRLK's boyfriend told the Tribunal that she was 'still recovering' from the recent surgery to replace the temporary ileostomy with a colostomy. He has not seen much of MRLK in the last month due to the COVID-19 restrictions, but would 'normally' see her three to four times weekly. They visit friends occasionally. MRLK's boyfriend said MRLK has 'less than seven or eight people' she considers a friend. Additionally, he has friends that MRLK sees and socialises with. MRLK's boyfriend confirmed that they met at an Australia Day event and were introduced by mutual friends. For the following four to five months, they met up at her house or a café or restaurant for a drink or meal and interacted and engaged in a non-romantic capacity.

120. MRLK's boyfriend described her personal qualities and strengths as being able to deal with her conditions for more than two decades without giving up, despite constantly suffering from medical conditions, complications and treatments. She has not let these conditions deter her from continuing. She is bright and funny; even in difficult situations MRLK can still make jokes to alleviate any tension for those around her. MRLK's boyfriend agreed that the support he provides MRLK is done out of love. He said it 'depends on her current physical state' whether or not she would be able to perform basic tasks. For example, at times when he has visited, trivial matters require him or MRLK's mother's attention. If they are not there and available, it 'depends' on her physical state at the time.

121. MRLK's boyfriend told the Tribunal that the 'vast majority' of her work involves driving clients and accompanying them while they perform tasks. It 'greatly drains' her stamina and energy and MRLK is 'completely wiped' by the end of the week. She requires the weekend and Monday to recover. MRLK's boyfriend confirmed that her physical condition inhibits her ability to perform tasks.

122. MRLK submitted that, pursuant to subsection 24(1)(b) of the NDIS Act, her impairments are, or are likely to be, permanent, in that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy her impairments. In relation to subsection 24(1)(c) of the NDIS Act, it was contended at the hearing that MRLK's impairments result in substantially reduced functional capacity to undertake the activities of social interaction, mobility, self-care and self-management. Additionally, in relation to subsection 24(1)(e) of the NDIS Act, MRLK submitted that she is likely to require support under the NDIS for her lifetime due to the permanency of her impairments.

123. The NDIA accepted that MRLK has a disability attributable to her physical impairments of Crohn's Disease and anorectal disease and therefore satisfied subsection 24(1)(a) of the NDIS Act. At hearing, it also accepted that it was open to the Tribunal to find that MRLK has a disability attributable to a psychiatric impairment by reason of her generalised anxiety disorder. However, while the NDIA accepted that MRLK's physical impairments are permanent to satisfy subsection 24(1)(b) of the NDIS Act, it contended that this permanency criterion was not satisfied in relation to MRLK's psychiatric impairment because there was no diagnosis of permanence from a suitably qualified psychiatrist or psychologist.

124. While the NDIA conceded that, due to her impairments, MRLK has some reduced functional capacity in the disputed activities of social interaction, mobility, self-care and self-management, it submitted that there was not a substantial reduction in one or more of these activities as required by subsection 24(1)(c) of the NDIS Act. Given the above contentions, the NDIA submitted that it cannot be found that MRLK requires the support of the NDIA for her lifetime pursuant to subsection 24(1)(e) of the NDIS Act.

125. The Tribunal must be satisfied that MRLK meets all the requirements specified in subsection 24(1)(a) to (e) of the NDIS Act in order to find that she meets the 'disability requirements' for access to the NDIS.[57] For the avoidance of doubt, the Tribunal is satisfied, and the NDIA did not dispute, that MRLK's physical conditions meet the criterion in subsection 24(1)(a) of the NDIS Act, being that she has a disability attributable to the physical impairments of Crohn's Disease and Anorectal Disease. These conditions cause MRLK to experience, among other things, pain, fatigue, incontinence, bleeding and discharge and difficulties or complications associated with the colostomy and stoma.

126. In its closing submissions at the hearing, the NDIA contended that it was open to the Tribunal to find that MRLK's psychiatric condition, being Generalised Anxiety Disorder, is also an impairment pursuant to subsection 24(1)(a) of the NDIS Act. On the available evidence, the Tribunal is satisfied that MRLK's Generalised Anxiety Disorder is an impairment attributable to a psychiatric condition. She therefore meets the legislative requirements for all three conditions in subsection 24(1)(a) of the NDIS Act.

127. It is also accepted by the Tribunal, and acknowledged by the NDIA, that MRLK meets the criterion in subsection 24(1)(d) of the NDIS Act, in that the impairments affect her capacity for social or economic participation. The focus of the reasons that follow is therefore on the remaining criteria under subsection 24(1)(b), (c) and (e) of the NDIS Act regarding permanency, substantially reduced functional capacity and lifetime NDIS support.

128. A person meets the disability requirement criterion under subsection 24(1)(b) of the NDIS Act if the 'impairment or impairments are, or are likely to be, permanent'. Subsection 24(2) of the NDIS Act further notes that 'an impairment that varies in intensity may be permanent'.

129. The Rules provide the following guidance in considering when an impairment is, or is likely to be, permanent:

5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.

5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

130. The Access Guideline provides the following guidance for assessing permanency:

8.2 When is an impairment permanent or likely to be permanent?

The NDIA must be satisfied that a prospective participant's impairment/s are, or are likely to be, permanent (i.e. likely to be lifelong) (section 24(1)(b)).

• an impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence based treatments that would be likely to remedy (i.e. cure or substantially relieve) the impairment (rule 5.4 of the Becoming a Participant Rules);
• an impairment that varies in intensity (for example, because the impairment is of a chronic episodic nature) may be permanent despite the variation (section 24(2));
• an impairment may be permanent notwithstanding that the severity of its impact on the functional impact of the person may fluctuate or potentially improve (rule 5.5 of the Becoming a Participant Rules);
• an impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its likely permanency to be demonstrated (rule 5.6 of the Becoming a Participant Rules).
• In this context, an impairment may be permanent notwithstanding that it may continue to be treated and reviewed after its permanency, or likely permanency, has been medically demonstrated; and
• 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 (rule 5.7 of the Becoming a Participant Rules).

If a prospective participant has multiple impairments, the NDIA will consider each impairment separately and determine whether each impairment is, or is likely to be permanent. However, the NDIA only needs to be satisfied that at least one of a prospective participant's impairments are, or are likely to be permanent.

Where there is a possibility of medical treatment (such as surgery) to treat the prospective participant's condition, and the treatment has some prospect of success, the NDIA should not conclude that the impairment is permanent but should wait until the outcome of the treatment is known (Mulligan and NDIA [2015] AATA 974 at [71]). [emphasis in original]

131. The Tribunal is satisfied that the evidence in this proceeding supports a finding that the permanency criterion is met in relation to MRLK's physical impairments of Crohn's Disease and Anorectal Disease in accordance with subsection 24(1)(b) of the NDIS Act. Based on the evidence, the Tribunal is satisfied there are no known, available and evidence-based treatments that would be likely to remedy MRLK's physical impairments.

132. However, the Tribunal was left uncertain on the available evidence about the permanence of MRLK's accepted psychiatric impairment of Generalised Anxiety Disorder and is therefore not satisfied this impairment meets the permanency criterion under subsection 24(1)(b) of the NDIS Act. As set out above in these reasons, under the Rules, an impairment is 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' [emphasis added]. While the word 'remedy' includes 'cure', the Rules do not require that the treatments would be likely to 'cure' the impairment. The Access Guideline refers to 'remedy' as being to cure or substantially relieve the impairment. In this regard, as the Tribunal set out in FBJV and NDIA [2021] AATA 913 at 117_,_ the word 'remedy' should be given its ordinary everyday meaning. The Macquarie Dictionary relevantly defines 'remedy' to mean 'something that cures or relieves a disease or bodily disorder; a healing medicine, application, or treatment' [emphasis added].[58] For completeness, the Tribunal notes that 'relieve' is defined to mean 'to ease or alleviate (pain, distress, anxiety, need, etc.).'[59] Accordingly, an impairment is 'permanent', or likely to be permanent, for the purpose of determining access to the NDIS, when there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to cure or relieve the impairment. This necessarily includes easing the impact or effects of the impairment.

133. In 2014, Dr Keightley, then a Psychiatric Advanced Trainee, stated that, 'I think [MRLK] does have moderate depression' and referred to 'some rather severe anxiety' in her teenage years. He offered to 'review the need for an antidepressant', but on the evidence it appears this was not further pursued. There was evidence of a diagnosis of Generalised Anxiety Disorder by MRLK's general practitioner, Dr Balu, which has been treated with the anxiety or anti-depressant related medication, Lexapro. The dosage of this medication has occasionally been increased, although there are side effects. In 2020, the medical practitioner, Dr Toyne, stated that MRLK suffers from Generalised Anxiety Disorder. The occupational therapist, Dr Reay, expressed opinions about the existence of psychological conditions. MRLK also stated that she had a range of psychological conditions. However, there was no evidence before the Tribunal from a qualified psychiatrist or psychologist regarding this impairment, including its permanence. In this regard, there was no evidence, from appropriately qualified professionals, that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would not be likely to remedy MRLK's psychiatric impairment. To this end, Dr Reay, in her report from December 2020, recommended that MRLK consult a psychiatrist to 'establish her diagnoses, treatment goals and plans, prescribe appropriate medications'.[60] Regrettably, this has not yet occurred.

134. While MRLK undoubtedly has a disability due to her psychiatric condition, the Tribunal is not satisfied on the evidence that this impairment is, or is likely to be, permanent as required under subsection 24(1)(b) of the NDIS Act. MRLK has sought out and undertaken various counselling sessions in relation to her psychiatric condition, which is understandably difficult given the related impact of her physical impairments. However, it is apparent from the evidence that MRLK has not exhausted available treatments in relation to her psychiatric condition. Accordingly, in the absence of evidence from a psychiatrist or psychologist that available treatments would be unlikely to remedy the impairment, the Tribunal is not satisfied that MRLK's psychiatric condition is permanent, as defined under the NDIS Act. In this regard, the Tribunal in Howard and NDIA [2019] AATA 2 at [61] said that: 'It would presumably only be when a psychiatrist has conducted the medical treatment and the review that a conclusion could be reached that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment'.

135. As the Tribunal said in Schwass, it 'must be positively satisfied on the evidence' that the disability requirement that a person's impairment being permanent is met.[61] For the foregoing reasons, based on the available evidence, the Tribunal is satisfied that MRLK's physical impairments are permanent, but not that her psychiatric impairment is permanent within the meaning of subsection 24(1)(b) of the NDIS Act.

Does MRLK have a substantially reduced functional capacity?

136. The Tribunal turns to consider the subsequent disability requirement criterion being that, under subsection 24(1)(c) of the NDIS Act, MRLK's impairments result in a substantially reduced functional capacity to undertake one or more of the activities specified in subparagraphs (i) to (vi), being: communication; social interaction; learning; mobility; self-care; or self-management.

137. The Tribunal is satisfied, based on the evidence, and MRLK accepted in submissions made at the hearing, that her functional capacity to undertake the activities of communication and learning, set out in subsection 24(1)(c)(i) and (iii) of the NDIS Act, are not substantially reduced by her impairments. Accordingly, the remaining activities for the Tribunal to consider are social interaction, mobility, self-care and self-management.

138. The Rules provide the following guidance on when an impairment results in 'substantially reduced functional capacity' to undertake relevant activities:

5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities - communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) - if its result is that:

(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

139. Further guidance in relation to determining when an impairment results in substantially reduced functional capacity is set out in the Access Guideline, as follows:

8.3 Substantially reduced functional capacity to undertake relevant activities

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

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

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

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

The NDIA will not need to consider whether a prospective participant's impairment results in substantially reduced functional capacity in relation to all of the relevant activities for every access request.

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

Which activity the NDIA will need to consider will depend on the circumstances and the evidence presented by the prospective participant. For example, if a prospective participant has an impairment which results in substantially reduced functional capacity to undertake mobility, but otherwise has full cognitive capacity, it may not be necessary for the NDIA to consider whether the impairment results in substantially reduced functional capacity to undertake activities related to cognition.

8.3.1 When does an impairment result in substantially reduced functional capacity to undertake activities?

An impairment results in substantially reduced functional capacity to perform one or more activities when:

• the person is unable to participate effectively or completely in the activity or perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items) or home modifications (rule 5.8(a) of the Becoming a Participant Rules); or
• 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 (rule 5.8(b) of the Becoming a Participant Rules); or
• 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 (rule 5.8(c) of the Becoming a Participant Rules).

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

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

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

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

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

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

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

140. The following observations of Justice Mortimer in Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) are instructive in setting out what is required in assessing what a person can and cannot do given their impairment or impairments and whether they meet the disability requirements for access to the NDIS:[62]

Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities...) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the "reasonable and necessary supports" to which participants may be entitled...

Using the concept of impairment enables assessment of the severity and permanency of a person's condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.

That being the case, no arbitrary limits are placed on access to the NDIS. No decisionmaker need be satisfied a person's impairment is "serious", or more serious than another person's. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.

141. In Ditchfield and NDIA [2019] AATA 2121 (Ditchfield) the Tribunal stated that, in accordance with Mulligan, it should not confine consideration of whether a prospective NDIS participant has met the disability requirement under subsection 24(1)(c) of the NDIS Act by considering their circumstances only through the prism of paragraph 5.8 of the Rules. In this regard, Justice Mortimer in Mulligan observed that:[63]

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

142. As set out above in these reasons, paragraph 8.3.1 of the Access Guideline provides that an impairment results in substantially reduced functional capacity when the person 'is unable to participate effectively or completely in the activity or perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items) or home modifications'. The Tribunal in Ditchfield discussed the meanings of 'effectively or completely' in paragraph 5.8 of the Rules and noted that they should be given their ordinary and natural meaning.[64] The Tribunal continued as follows:[65]

The Macquarie Dictionary Online defines "effective" as meaning "serving to effect the purpose; producing the intended or expected result" and "complete" as "having all its parts or elements; whole; entire; full".

143. For completeness, the Tribunal notes that there was no evidence in this proceeding that MRLK was unable to effectively or completely participate in any 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) or home modifications. The Tribunal is satisfied on the evidence that MRLK can effectively participate in all relevant activities without these adjustments and therefore does not have a substantially reduced functional capacity to do so.

144. Additionally, and noting the Tribunal's finding that the permanence of MRLK's psychiatric condition has not been established to the requisite standard under the NDIS Act, there is an attendant difficulty faced by the Tribunal in assessing whether MRLK's physical impairments alone result in a substantially reduced functional capacity in relation to the relevant activities set out under subsection 24(1)(c) of the NDIS Act. This is because the particular impact of MRLK's psychiatric impairment on her functional capacity cannot be satisfactorily determined in the absence of evidence in that regard from a psychiatrist or psychologist and also due to the difficulty in identifying whether it was the physical impairments, the psychiatric impairment or all three impairments that impacted MRLK's functional capacity to undertake the relevant activities. The Tribunal therefore must make findings in relation to MRLK's functional capacity based on evidence that does not satisfactorily account for the role of her psychiatric condition on that capacity. Put another way, an assessment of MRLK's functional capacity must be made by the Tribunal as the evidence stands and without a complete understanding of the extent of the role played by the psychiatric condition on her capacity. Despite the Tribunal's finding that permanence of the psychiatric condition has not been established, because of the lack of evidence about the specific impact of MRLK's psychiatric condition, which, based on the Tribunal's preceding finding, should strictly not be considered against this criterion, all three impairments, the Crohn's Disease, the Anorectal Disease and the psychiatric condition of Generalised Anxiety Disorder, are necessarily intertwined in the Tribunal's assessment and findings regarding her functional capacity.

145. By way of specific examples, MRLK's general practitioner, Dr Balu did not disagree with the proposition that MRLK's functional capacity may improve with psychological treatment; he said it would likely improve with proper mental health treatment The occupational therapist, Dr Reay, also recommended psychiatric assessment to properly diagnose and treat MRLK's psychiatric impairment. She accepted that the intention of such assessment would be to treat this condition and likely lead to an improvement in MRLK's capacity, although she noted that the evidence was unclear. While MRLK has been utilising a counselling service, she acknowledged that her psychiatric condition had not been diagnosed and accepted that her mental health was a significant component of her challenges. Accordingly, the Tribunal cannot be satisfied of the precise contribution MRLK's psychiatric condition has on her functional capacity as opposed to her accepted physical impairments. Nevertheless, despite the unsatisfactory state of the evidence in relation to this important element, the Tribunal turns to consider the impact of MRLK's impairments on her functional capacity pursuant to subsection 24(1)(c) of the NDIS Act. As set out in the Access Guideline, the NDIA, or here the Tribunal, is 'required to consider whether any permanent impairment, or permanent impairments when considered together, result in substantially reduced functional capacity' to undertake one or more of the relevant activities set out in subsection 24(1)(c) of the NDIS Act.

146. Based on the available evidence, the Tribunal is not satisfied that MRLK's impairments result in substantially reduced functional capacity to undertake the activity of social interaction pursuant to subsection 24(1)(c)(ii) of the NDIS Act. As set out in these reasons, the Access Guideline states that social interaction includes 'making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context'.

147. In HPSC and NDIA [2021] AATA 727 (HSPC), the Tribunal relevantly observed at [65] and [68] that:

Given that social interaction is, by its nature, often intermittent, it is unhelpful to consider how often episodes of acute incapacity prevent her from undertaking such interaction. Rather, the pertinent question is whether she is able to make and keep friends, interact with the community and cope with feelings and emotions while doing so. It appears that the totality of the evidence does suggest a general capacity to maintain friends and to interact with the community...The evidence tends to the conclusion that her conditions sometimes require her to absent herself from real-time or online engagement with her friends, but it does not suggest that she is unable to maintain those friendships on that account.

[in] the words of Mortimer J in Mulligan at [56]: the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Quite evidently, the Applicant can make and maintain friendships and can cope with emotions in that context. Doing so may represent a personal struggle, and may be accompanied by anxiety or self-doubt, but this does not detract from the reality that she is able to reach that goal.

148. In this proceeding, the evidence also establishes that MRLK is able to make and keep friends, she has at least three close friends and is in a supportive relationship with her partner of more than two years whom she sees regularly. They met at a social event and were introduced by friends. They developed a friendship before commencing their relationship and this entailed going out to cafés and restaurants. More recently, MRLK and her boyfriend usually meet at her flat and spend time together, but they also stay at her partner's residence. They attend social events together and MRLK has met her partner's friends, with whom she gets along. She also goes to dinner approximately monthly with her close friends. Dr Reay stated that MRLK 'chats with her friends on social apps, attends the occasional dinner or walk', but that MRLK did not meet people due to anxiety. However, MRLK interacts with the community through her employment as a disability support worker. She provides a valuable service helping various clients undertake their tasks in the community and MRLK's mother's evidence was that this provided her with personal fulfilment. MRLK also socialises with her boyfriend and their friends, including occasionally at people's houses or in the community.

149. For completeness, the Tribunal notes that there was no evidence suggesting that MRLK cannot cope with her feelings and emotions in a social context, although she does experience considerable practical difficulties with this activity due to the nature of her physical impairments requiring close proximity to toileting facilities and the carrying of associated supplies in a bag. In this regard, there is understandably for MRLK also a degree of social anxiety accompanied by some elements of social interaction. In this regard, it is impressive that MRLK maintains a relatively high level of social interaction notwithstanding the effect of her conditions. To this end, while MRLK does occasionally require assistance to participate in the activity of social interaction, she does not 'usually' require assistance from other people to participate in this activity as required under clause 5.8(b) of the Rules. Therefore, based on all the evidence, the Tribunal is not satisfied that MRLK's impairments result in a substantially reduced functional capacity to undertake the activity of social interaction pursuant to subsection 24(1)(c)(ii) of the NDIS Act.

150. Having regard to the available evidence, the Tribunal is not satisfied that MRLK's impairments result in substantially reduced functional capacity to undertake the activity of mobility pursuant to subsection 24(1)(c)(iv) of the NDIS Act. The Access Guideline states that the activity of mobility includes 'the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs'. While MRLK has some reduction in her functional capacity to mobilise, the totality of the evidence demonstrates that her impairments do not result in a substantially reduced functional capacity in undertaking this activity.

151. As the Tribunal said in Madelaine and NDIA [2020] AATA 4025 (Madelaine) at [104]-[106]:

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

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

No particular distance is specified in the Guideline as defining this level of mobility, but it seems reasonable to suggest that a person who can travel 50 m by herself has the capacity to do the things referred to in the Guideline. That view would be consistent with the decisions of the Tribunal in Holmes and MHZQ.

152. MRLK can move about her home, she is able to get in and out of her bed and a chair, she can leave her home independently and can mobilise in the community. This includes mobilising for work, currently four days each week, helping NDIS participants undertake their tasks at the local shops. In this regard, MRLK can drive a motor vehicle and uses it to get to client's homes and to take them to the shops, where she can walk around for approximately 30 minutes.

153. While Dr Reay opined that MRLK has deficits in her mobility, she did not put this to be a substantially reduced functional capacity in undertaking the activity of mobility. Dr Reay reported that MRLK walked without assistance at her assessment. At the hearing, Dr Reay accepted that MRLK can do the laundry and hang it up on an internal line piece-by-piece. MRLK can also use the dishwasher and complete small grocery shopping. She tidies her room, can use a mop and vacuum cleaner and wipe up spills, although some of these tasks are avoided or left until MRLK has sufficient energy to complete them so as not to deplete these reserves. Plainly, due to her physical impairments, MRLK does have difficulty with lifting heavy or bulky items, such as unloading heavier items from the dishwasher or moving boxes of medical supplies. The occupational therapist, Mr Dwyer, told the Tribunal that MRLK has difficulty with heavy or forceful manual handling such as lifting, pushing and pulling, although she demonstrated lifting her car boot at the assessment. Additionally, MRLK told the Tribunal of difficulty walking distances longer than approximately two hundred metres due to exhaustion. Dr Balu told the Tribunal that MRLK largely attends appointments on her own and walks without issue into his rooms, although sometimes she is in pain. MRLK can move between her flat and the main house occupied by her mother, said to be a distance of 80 metres, and Dr Reay stated that on a bad day MRLK 'can walk a maximum of 100 metres'.

154. As set out above, the Tribunal stated in Madelaine that the requirements to demonstrate functional capacity in the activity of mobility are relatively modest and, on the available evidence, the Tribunal is satisfied that MRLK meets those thresholds. In this regard, applying the principles enunciated in Madelaine, Holmes and MHZQ, in this proceeding MRLK has the capacity to do the things outlined in the Access Guideline in relation to mobility, including because she can travel more than fifty metres by herself. In this way, although MRLK occasionally requires assistance undertaking this activity, she does not 'usually' require assistance from other people as required under clause 5.8(b) of the Rules.

155. MRLK described days where she was unable to get out of bed. Dr Reay stated that these were associated with MRLK's psychosocial impairments, but the Tribunal accepts that all of her impairments undoubtedly occasionally result in this occurrence. Currently, MRLK gets out of bed on at least four days each week for work. To the extent that MRLK's 'bad days' involve or are connected with her psychiatric impairment or other mental health conditions, she has not sufficiently demonstrated, through the provision of expert evidence from an appropriately qualified person, that her functional incapacity on such bad days is connected to a permanent psychiatric condition. Nevertheless, based on the requisite functional, practical assessment of what MRLK can and cannot do, having regard to all the evidence, the Tribunal finds that MRLK does not have a substantially reduced functional capacity to mobilise due to her impairments as required to satisfy subsection 24(1)(c)(iv) of the NDIS Act.

156. Based on the available evidence, the Tribunal is not satisfied that MRLK's impairments result in substantially reduced functional capacity to undertake the activity of self-care pursuant to subsection 24(1)(c)(v) of the NDIS Act. While the evidence indicates that MRLK has some reduced functional capacity in undertaking the activity of self-care, the Tribunal finds for the following reasons that this reduction is not substantial.

157. The Access Guideline states that self-care involves activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, and caring for health care needs. As the Tribunal said in Madelaine (at [121]), having a substantially reduced functional capacity to care for oneself 'imports the idea that there are significant gaps in one's capacity to maintain personal health, safety and well-being'. The evidence before the Tribunal was that MRLK can independently perform all of the self-care activities listed in the Access Guideline, being personal care, hygiene, grooming and feeding herself, showering, bathing, dressing, eating, toileting, grooming and caring for her own health care needs and there are no significant gaps in her capacity to do so. The evidence demonstrates that MRLK can shower herself, although this is not done daily, and she occasionally uses a shower chair for this task due to fatigue. Dr Balu said this was not a straightforward process due to MRLK's stoma. Her mother will occasionally assist with washing MRLK's hair, but this was limited to moments of crisis and was not a regular or usual occurrence. MRLK can brush her teeth and hair, dress herself, feed and eat independently, and toilet and groom herself. MRLK can use the microwave to re-heat pre-prepared meals made by her mother or provided by her brother. She can make herself breakfast, a sandwich and a hot drink. MRLK's mother usually provides meals for both MRLK and her brother and she told the Tribunal that there is always plenty of food for her children. In HSPC, the Tribunal found (at [84]) that shortcomings with respect to eating do not, of themselves, demonstrate a substantially reduced functional capacity to care for oneself.

158. MRLK can put clothes in the washing machine and hang them piece by piece. She also manages her medications independently and largely completed all tasks in relation to the physical requirements of managing the symptoms of her impairments. When asked at the hearing what elements of self-care she could not complete independently, MRLK said she 'sometimes' required assistance with changing her stoma bag.

159. Dr Reay described MRLK as having 'moderate difficulties' in managing her self-care and requiring 'intermittent physical assistance and prompting from her mother'.[66] This did not rise to 'usually' requiring assistance to undertake self-care in accordance with paragraph 5.8 of the Rules and there was no evidence of such a level of assistance being required by MRLK. Dr Reay reported that MRLK's mother stated that MRLK requires 'a high level of prompting' from her on 'bad days', said to be '2-3 days per week'.[67] However, in accordance with MRLK's own evidence to the Tribunal regarding self-care, Mr Dwyer's evidence was that MRLK is independent in relation to her self-care needs. He reported that she needs no assistance with self-care tasks on 'good days' but acknowledged that the situation was likely different on 'bad days'. Mr Dwyer's report was based on his observations of MRLK, what she told him about her own capacities or functionality and the written materials in this proceeding. He observed MRLK performing numerous tasks around the home. His report was not limited to observing a few tasks and relying predominantly on MRLK's self-reports and completion of various questionnaires. The Tribunal is satisfied that Mr Dwyer's written report was based on a detailed functional assessment of what MRLK can and cannot do which, as was said in Mulligan, is 'so important' in determining a person's functional capacity. His evidence was objective, yet sympathetic to MRLK's situation, and conceded that it was limited in relation to MRLK's 'bad days' because his assessment was not conducted on such a day. The evidence overwhelmingly demonstrates that MRLK is able to function relatively well despite her significant challenges, including by working in a job that requires her to assist other people manage the impact of their own disabilities.

160. Pursuant to the Access Guideline, MRLK's functional capacity is to be considered 'in the periods between acute episodes'. Taking a 'holistic' view, as enunciated in HPSC at [37], about MRLK's life circumstances, having regard to the nature, frequency and intensity of any acute episodes or 'flare ups' and the situation in the periods between those episodes, the evidence does not establish that MRLK has a substantially reduced functional capacity in relation to self-care.

161. On the evidence before the Tribunal, while MRLK occasionally requires assistance for some self-care activities, she does not 'usually' require assistance and can largely perform all activities of self-care independently and there are no significant gaps in her capacity to do so. For these reasons, based on the evidence set out above in relation to self-care, the Tribunal is not satisfied that MRLK 'usually' requires the assistance of another person to participate in the activity of self-care or to perform tasks or actions required to undertake or participate in this activity pursuant to paragraph 5.8(b) of the Rules. That is, the evidence before the Tribunal was that MRLK can perform all of the self-care activities listed in the Access Guideline, including personal care, hygiene, grooming and feeding herself, showering, bathing, dressing and toileting and only occasionally has assistance with a few tasks. Having regard to all the activities of self-care, this reflects some reduced functional capacity, but not a substantial one as required for MRLK to satisfy subsection 24(1)(c)(v) of the NDIS Act.

162. The Access Guideline states that self-management means 'the cognitive capacity to organise one's life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem solving and managing finances'. Based on the evidence, the Tribunal is not satisfied that MRLK's impairments result in substantially reduced functional capacity to undertake the activity of self-management pursuant to subsection 24(1)(c)(vi) of the NDIS Act.

163. The weight of evidence before the Tribunal was that MRLK has the cognitive capacity to organise her life. The evidence establishes that MRLK has good cognitive capacity. She has completed a university degree, albeit at a slower pace due to her impairments which, pursuant to the Access Guideline, does not necessarily mean a person cannot participate effectively or completely in an activity. MRLK attends work four days each week in a part-time capacity and assists other people with disabilities complete their tasks of daily life. Dr Reay did not report any cognitive difficulties and was unsure of MRLK's cognitive capacity. Dr Balu, MRLK's general practitioner, told the Tribunal that she does not have cognitive challenges and can largely organise herself, although on occasions her pain can affect cognitive function and organisational ability. Additionally, MRLK's mother gave evidence that MRLK had a comprehensive diary that she managed independently. MRLK's written evidence was that for 'the most part I am able to remember appointments and rarely miss any', although MRLK's mother said she occasionally assisted with managing medical appointments. In this way, MRLK does not 'usually' require assistance from other people to participate in this activity as required under paragraph 5.8(b) of the Rules. Moreover, there was no evidence from a psychiatrist or psychologist in relation to MRLK's cognitive function.

164. In HSPC, the Tribunal observed (at [42]) that:

I accept that much of what she is able to achieve is a struggle and that such activities come at the cost of later fatigue and lethargy, but it does seem that she is able to do a substantial number of things which a person her age would typically do. Moreover, the level of involvement in activities outside the home suggests that periods of activities exceed in length the periods in which her conditions render her incapacitated. If, as Guideline 8.3 instructs, I focus on her ability to function in between acute episodes, the result is that it is appropriate to find that she is able to achieve, typically, a relative high degree of functionality.

165. In short, the evidence in this proceeding demonstrated that, despite significant challenges due to her impairments, MRLK is a high functioning person. As with the other activities in dispute, while the Tribunal is satisfied that MRLK does have some reduced functional capacity in the activity of self-management, this does not rise to the requisite substantially reduced functional capacity under subsection 24(1)(c) of the NDIS Act. The weight of evidence was that MRLK has the cognitive capacity to organise her life, to plan and make decisions and take responsibility for herself. Accordingly, the Tribunal finds that MRLK does not have a substantially reduced functional capacity to undertake the activity of self-management due to her impairments, as required by subsection 24(1)(c)(vi) of the NDIS Act.

166. In conclusion, the Tribunal is not satisfied the evidence before it supports a finding that MRLK's impairments result in a substantially reduced functional capacity to undertake one or more of the prescribed activities required to satisfy subsection 24(1)(c) of the NDIS Act including, most relevantly in this proceeding, the activities of social interaction, mobility, self-care or self-management.

Is MRLK likely to require support under the NDIS for her lifetime?

167. The Rules do not expressly address consideration of whether a person is likely to require support under the NDIS for their lifetime, however the Access Guideline states the following regarding the lifetime NDIS support criterion:

8.5 When is a person likely to require support under the NDIS for their lifetime?

The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(1)(e)).

If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person's lifetime, despite the variation (section 24(2)).

The NDIA is required to consider a prospective participant's overall circumstances and conclude that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and NDIA [2015] AATA 974 at [153]).

For example, if a person's support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.

When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person's lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]-[150]). [emphasis in original]

168. As set out above in this decision, the Tribunal has found that MRLK's impairments do not result in her having 'substantially reduced functional capacity' to undertake one or more of the activities under subsection 24(1)(c) of the NDIS Act. As a result of those findings and the conjunctive nature of subsection 24(1) of the NDIS Act, requiring satisfaction of all criteria,[68] it follows, and the Tribunal is satisfied, that MRLK is not likely to require support under the NDIS for her lifetime pursuant to subsection 24(1)(e) of the NDIS Act.

169. In this regard, as the Tribunal observed in GXYZ and NDIA [2020] AATA 3907 at [121]- [122]:

Reading the policy guidance set out in chapter 8.5 of the Access Operational Guidelines, I consider that it would be inconsistent for the Tribunal to make a finding that a prospective participant is likely to require support under the NDIS for their lifetime in circumstances where the evidence shows they do not have a substantially reduced functional capacity to undertake activities in the domains of communication, social interaction, learning, mobility, self-care or self-management.

As I find the applicant's impairments do not result in substantially reduced functional capacity to undertake activities, I am satisfied he will not require assistance under the NDIS for his lifetime. Therefore, the applicant does not meet the requirement of paragraph 24(1)(e) of the NDIS Act.

170. The Tribunal's decision does not discount the significant nature of MRLK's physical and psychiatric impairments. The Tribunal acknowledges that these impairments dramatically impact her life. It also affects her family and partner. She is dealing with very difficult physical impairments, which will not resolve, and she handles them in what the Tribunal observed to be a very stoic and dignified manner. Despite MRLK's significant impairments, on the totality of the evidence, the Tribunal has found that they do not result in her having a substantially reduced functional capacity to undertake one or more of the prescribed activities under subsection 24(1)(c) of the NDIS Act.

171. In circumstances where the Tribunal has found that MRLK does not meet the disability requirements in section 24 of the NDIS Act, she does not at this time meet the access criteria under section 21 of the NDIS Act to become a participant in the NDIS.

172. The Tribunal emphasises that its decision does not diminish the nature and effect of MRLK's impairments, but rather is a finding that the relevant legislative criteria have not been met at this time. MRLK may again apply for access to the NDIS in the future if her functional capacity for one or more of the prescribed activities becomes substantially reduced as a result of her impairments and she meets the other required legislative criteria.

173. The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 173 (one hundred and seventy-three) paragraphs are a true copy of the reasons for the decision herein of Member W Frost

.............................[Sgd]....................................

[7] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

[33] Exhibit 1, page 47. See also page 42.

[57] Howard and National Disability Insurance Agency [2019] AATA 2 at [25].

[58] Macquarie Dictionary, (online at 6 October 2021), 'remedy'.

[61] Schwass and NDIA [2019] AATA 28 at [45].

[62] Mulligan at [52]; and [55]-[56].

[68] Howard and National Disability Insurance Agency [2019] AATA 2 at [25].