Mulligan v National D

1. The Parliament of Australia expressly provided objects and principles in the NDIS Act to give guidance on the interpretation of the statute.
2. The objects of the NDIS Act are set out in section 3 and relevantly include:
   • giving effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities completed at New York on 13 December 2006;[2]
   • supporting the independence and social and economic participation of people with a disability;
   • enabling people with a disability to exercise choice and control in pursuit of their goals, and the planning and delivery of their supports;
   • facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
   • raising community awareness of the issues that affect the social and economic participation of people with disability, and facilitating greater community inclusion of people with disability.
3. Paragraph 3(3)(b) of the NDIS Act further provides that regard is to be had to the need to ensure the financial sustainability of the NDIS in giving effect to these objects.
4. The general principles guiding actions under the statute are contained in section 4 of the NDIS Act. These include affirming that people with disability have the same right to realise their potential for physical, social, emotional and intellectual development as other members of Australian society, and should be supported to participate in and contribute to social and economic life to the extent of their ability. The principles also promote the positive personal and social development of people with disability.
5. The Minister may make rules prescribing matters pursuant to subsection 209(1) of the NDIS Act. Relevant to this matter, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Participant Rules) also form part of the legislation.
6. Operational Guidelines written by the CEO of the NDIA also assist staff to make decisions in accordance with the NDIS Act. I note that Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[3]

1. To become a participant in the NDIS, the applicant must satisfy the access criteria, which are set out in subsection 21(1) of the NDIS Act:

21 When a person meets the access criteria

(1) A person meets the access criteria if:

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

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

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

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

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

1. There is no dispute that the applicant meets the age requirements in section 22 and the residence requirements in section 23 of the NDIS Act. The applicant's legal representative concedes that his circumstances do not meet the criteria in section 25 of the NDIS Act and, for completeness, I also note the alternative access criteria set out in subsection 21(2) of the NDIS Act are not relevant to this matter.
2. Therefore, the sole issue for determination by the Tribunal is whether the applicant meets the access criteria that are set out in section 24 of the NDIS Act.
3. Section 24 of the NDIS Act states:

24 Disability requirements

(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.

1. The relevant Operational Guideline is the Operational Guideline - Access to the NDIS (the Access Operational Guideline): chapter 8 of the Access Operational Guideline is titled 'The Disability Requirements'.

1. The applicant provided written statements and gave oral evidence to the Tribunal on 18, 19 and 20 August 2020. His evidence was supported by written and oral evidence from his partner, Ms 'B', and a friend, Ms 'C', as well as letters from two members of his church.
2. The applicant resides alone in a two-bedroom home with a companion dog. He has a 13-year-old son who lived with him on weekends and part of the school holidays until he moved interstate in January 2020. The applicant has been in a relationship with Ms 'B' since 2011, although they do not live together. He is currently in receipt of the disability support pension.

1. The applicant described the impact of his disabilities in a statement of lived experience filed with the Tribunal on 27 September 2019 as 'numerous and debilitating and life altering'.[4]
2. In relation to his mental health, the applicant wrote that there has not been a time in his life when he has not been affected by mental health issues, including as a child when he felt 'like an outsider' and experienced 'undisclosed suicide attempts'.[5] He noted that he had a mental health 'break down' in 1992; he was subsequently diagnosed with depression and anxiety, which was treated with antidepressant medication and counselling.[6] The applicant observed that his depression and anxiety has impacted on his ability to maintain long-term employment, and has affected his relationships and marriage.
3. The applicant stated that he was diagnosed with diabetes in 2006 and aggressive IgA nephropathy in 2009. He described these conditions as 'independent of each other' but noted they 'interact'.[7] The applicant wrote that his IgA nephropathy was treated in late 2009 with oral steroid medication for approximately six months; the steroids caused his 'anxiety and depression to intensify significantly' and he needed to take 'massive doses of insulin' to treat his diabetes.[8]
4. In 2015, the applicant had a 'relapse' of his IgA nephropathy that required him to have a second course of steroids.[9] He became unwell in late 2017 and started peritoneal dialysis in 2018, which was 'not successful' and so 'switched to haemodialysis'.[10]
5. The applicant wrote that the 'impact of the unstable kidney disease, mental health and diabetes on my complex health needs is horrendous as I have little to no support and I live alone'.[11] He described his capacity to undertake self-care, self-management, learning and social interaction, and the supports he requires, as follows:
   • Self-care. The applicant prioritises his activities as he is 'unable to do anything more than the basics'.[12] He is able to cook butter chicken or spaghetti bolognese for himself and his son on Saturday evenings (this was prior to his son moving interstate). Members from his church provide him with three meals a week cooked to his 'specific dietary requirements', which he reheats after his dialysis sessions.[13] He is 'unable to clean' his home because he does not have the 'stamina' and only completes tasks such as the dishes or cleaning the toilet.[14] The applicant requires supports in the form of supplied meals, assistance to clean and maintain his home, and 30 psychological sessions a year (in addition to the ten sessions he receives under a mental health care plan).
   • Self-management. The applicant has problems remembering his medications 'at times'.[15] He manages his financial affairs by setting up automatic payments for his rent and utilities, and relies on technology to manage his appointments. The applicant requested support to cook meals (in addition to supplied meals) and build his capacity with 'specific targeted support in everyday activities', and 'more intensive support' with daily personal care and medications when he is 'significantly unwell'.[16]
   • Learning. The applicant was unable to complete the honours program he commenced at university due to 'the impact of the disease and the disability' although he later completed a certificate in business administration.[17] He assists his church with accounts online and from home. He wants to explore support options to assist him to engage in study/leisure/part-time employment opportunities.
   • Social interaction. The applicant prefers to stay home due to his anxiety and uses the support of a companion animal. He has 'anxiety of new and unknown situations' and does not like 'large crowds of people, or loud noises... [or] sudden change of situations or plans'.[18] He seeks support of regular/weekly one-on-one care to assist him to engage in leisure/social activities.
6. In his written statement, the applicant separately listed his goals inter alia as:
   • building his capacity for economic participation, to live independently, and to manage and improve his relationships;
   • building his physical and mental wellbeing through exercise;
   • building his capacity to learn through formal education; and
   • getting assistance from his psychologist to 'look at his historical issues'.[19]

1. The applicant's extensive oral evidence to the Tribunal included the following chronology about some of his key life events:
   • his childhood and attendance at school in New Zealand;
   • the diagnosis of his depression and anxiety in 1992, and subsequent treatment of antidepressants and counselling;
   • his employment in various roles in New Zealand during the 1990s;
   • his move to Australia in 1999, and relationship and marriage to his wife from 2001;
   • the birth of his son in 2006 and separation from his wife in 2007;
   • the diagnosis of his diabetes in 2006; and
   • the diagnosis of his IgA nephropathy in 2009.
2. The applicant also described his history of psychological counselling from 2009, and his experiences of treatment for his IgA nephropathy. He explained the process of commencing peritoneal dialysis in early 2018 for three to four months, which was not successful, and subsequently changing to haemodialysis. He said he continues to have haemodialysis sessions three times a week at a community-based dialysis care facility associated with the regional hospital and was placed on the waitlist for a kidney transplant from December 2019.
3. The applicant told the Tribunal about his attendance in a university program in 2010 to qualify for university, and his subsequent participation in and successful completion of an undergraduate degree in humanities at university. He explained how he completed his degree over a four-year period from 2011 to 2014 at 75% of a full-time equivalent load and supported by the learning development program at the university. He also described his enrolment in and withdrawal from the honours program at university in 2015 due to ill health associated with his IgA nephropathy and mental health. He confirmed that he completed a certificate in business administration at TAFE in 2017.
4. The applicant's oral evidence about his current functional capacity varied significantly during the hearing. He told the Tribunal that he experiences 'massive fatigue, constant headaches' and cannot 'participate effectively or fully in day to day things that normal people do'.[20]
5. In relation to his mental health, the applicant described struggling with who he is, feeling anxious in unknown or new situations, rarely feeling 'happiness or joy' except with his son, and experiencing 'mental fatigue' that is 'like a brain-drain...it's just really hard to focus, concentrate [and I] do dumb things'.[21] He said his focus for daily-life was 'survival', although confirmed he has never been hospitalised for treatment of his mental health condition.[22]
6. The applicant described the impact of his IgA nephropathy as 'all encompassing'.[23] He repeatedly said that he paces himself and prioritises his activities due to extreme fatigue. He stated that he struggles to clean his house and accepted it is 'dirty, dusty'; he said he wipes the kitchen bench weekly and vacuums monthly but acknowledged the bathroom basin and toilet has not been cleaned for 'about four to six weeks' and the shower is covered in soap scum and mold.[24] He said he does his laundry weekly but leaves his clean clothes on the bedroom floor because he is too tired to put his clothes in the cupboard. He said he can cook but finds cooking meals - deciding what to cook, shopping for the ingredients, preparing the food and then cooking the meal - challenging because of his specific dietary requirements as well as the fatigue he experiences after his dialysis sessions.
7. The applicant also described his current usual weekly activities to the Tribunal including attending dialysis, participating in part-time employment, undertaking voluntary work for his church, and attending a wellness centre for exercise.
8. The applicant explained that his week includes three sessions of haemodialysis on Mondays, Wednesdays and Fridays. This involves him leaving home about 1:30pm to drive himself to a community dialysis facility where he undertakes haemodialysis, managing his dialysis machine except for medications with the support of nursing staff, and driving himself home about 8:30pm.
9. Since December 2019, the applicant has been employed on a part-time basis for up to 15 hours per week worked over two to four days. He described this work as scanning hard copies of files to a digital format, recording the files and undertaking a quality assurance process. The applicant said he is able to complete this work as it is 'routine' and the owner of the business is supportive about the circumstances of his health and flexible about his hours of work.[25]
10. The applicant also does one to two hours a week of volunteer work for his church completing administration. He is able to do this on his computer at his own pace at home. While the applicant described this work as 'basically ticking a box', he explained it involved reconciling church accounts, sending emails within the church organisation, paying weekly bills and paying staff each fortnight.[26]
11. Prior to COVID-19 restrictions in March 2020, the applicant attended a wellness centre three times a week to complete a 30 to 40 minutes exercise program. He told the Tribunal that he was intending to resume this program shortly.
12. The applicant described attending weekly church services and bible study sessions about a third of the time, and participating in occasional social events with friends, such as coffee. He has been in a relationship with Ms 'B' since they met at university in 2011; she is his legal guardian and has enduring power of attorney. The applicant referred to four friends who he met either at university or through his church; two of these friends provide support by supplying him with regular meals. The applicant also said he engages on social media with people he has similar interests with or connections (for example, his church).
13. The applicant told the Tribunal he manages his extreme fatigue by prioritising his activities. He noted, however, that when he reduced his hours of employment due to COVID-19 restrictions in March 2020, he was 'able to do a little bit around the home, do a little more cooking' but was 'still fatigued' and 'limited' in what he 'could and couldn't do'.[27]

Evidence of the applicant's partner, friend and church members

1. The applicant's partner, Ms 'B', provided a written statement on 24 September 2019 and gave oral evidence to the Tribunal on 19 August 2020. Ms 'B' noted that she has been in a relationship with the applicant since 2011.
2. Ms 'B' said she and the applicant have never lived together but phone/text daily and see each other a couple of times a week. She explained their living arrangement is due to the applicant's health and her own personal circumstances, which has included living with and caring for her mother until she passed away in July 2019, raising her own two sons, working in a high-stress job and undergoing surgery in 2019. Ms 'B' said she provides the applicant with emotional support but cannot provide him assistance around the home due to her own medical conditions.
3. In her oral evidence, Ms 'B' observed the applicant's functional capacity has substantially deteriorated and he has been 'significantly unwell' since he commenced dialysis.[28] She described his symptoms as fatigue, headaches, no energy, a tendency to 'get sick easily', weight loss and 'less concentration'.[29] She spoke about needing to motivate and prompt the applicant to participate in church and social activities so that he does not 'shut off' from people.[30]
4. Ms 'C' has been a close friend of the applicant for approximately four years. She provided a written statement and gave oral evidence to the Tribunal on 11 March 2020. Ms 'C' attends the same church as the applicant and provides him with support including three meals a week that she cooks in accordance with the specific requirements of his diet, meeting him monthly for coffee, and occasionally driving him to church or bible study sessions. She observed the applicant knows how to undertake tasks such as cooking or vacuuming but has difficulty in terms of his 'endurance' and mental health.[31]
5. The applicant also filed two letters from members of his church, which verified his limited functional capacity due to his disabilities, and social and practical support provided to him by members of the church congregation.

1. Dr 'A' has been the applicant's general practitioner since 2007. In a report dated 27 May 2019, Dr 'A' listed the applicant's diagnosed conditions as LADA, IgA nephropathy with stage V chronic renal failure requiring haemodialysis three times weekly, and significant major depression and generalised anxiety disorder. Dr 'A' noted the applicant's 'day to day level of functional impairment fluctuates [due to his medical conditions] but is always in the moderate to severe functional impairment range'.[32]
2. On 12 July 2019, Dr 'A' reported the applicant's functional limitations and his need for supports as follows:

[GXYZ's] health situation is complex and significantly impacts his daily functioning, including his ability to manage day to day household tasks, maintain social connection and engage in activities with his son that others might take for granted (such as going out for a walk or bike ride together).

Provision of supports would enhance [GXYZ's] quality of life to at least a basic level that many people would consider a baseline level of functioning.[33]

Evidence of Dr 'D' (diabetes and general physician)

1. Dr 'D' (diabetes and general physician) provided written reports dated 11 December 2015, 28 June 2016, 5 December 2018 and 26 June 2019, and gave oral evidence to the Tribunal on 11 March 2020.
2. In his report on 26 June 2019, Dr 'D' stated the applicant has 'longstanding insulin requiring diabetes' that requires him to administer multiple daily injections of insulin and end stage kidney disease due to IgA nephropathy.[34] Dr 'D' reported that the applicant was being considered for a kidney pancreas transplant (at that time) but described the applicant's diabetes and end stage kidney disease as 'permanent conditions' because 'in the longer term, it is likely that he will require re-initiation of insulin therapy, and also require haemodialysis if his transplant kidney fails'.[35]
3. Dr 'D' also observed on 26 June 2019:

If [GXYZ] gets a kidney transplant there is a good chance that he would get off dialysis. If he gets a KPT [kidney pancreas transplant] then hopefully he would get off dialysis and insulin. However, there are permanent medication and lifestyle changes that come with either form of transplant. They both require a similar regimen of immunosuppression medications including steroids (glucocorticoids in this case). These medications have profound physiological effects on the immune system to prevent rejection of the transplant but also affect the metabolic, endocrine, cardiovascular, dermatological and neurological systems. Typical side effects include tremor, hypertension, altered blood cholesterol, skin cancers, osteoporosis and a substantial risk of mood impairment. This last symptom is a particular issue for [GXYZ] as he has suffered depression previously, and it has been triggered by glucocorticoids. Depression in this situation can be very difficult to manage as the steroid medications cannot simply be stopped or the transplant will fail. When patients are on immunosuppressive medication they are at increased risk of infection... Many people will avoid other people in the post-transplant period due to the fear or infections. This places them at risk of social isolation and impairs their mental health.[36]

1. In oral evidence to the Tribunal on 11 March 2020, Dr 'D' noted the applicant is now having a kidney transplant (not a kidney pancreas transplant) and anticipated that his 'diabetes control will deteriorate in the post-transplant period' due to steroid medication.[37] Dr 'D' opined in relation to the permanency of the applicant's diabetes and IgA nephropathy that:

[GXYZ's] diabetes will not go away, so he doesn't have the option for what's called a pancreas transplant as well, which could potentially remove his diabetes. So his diabetes is life-long.

With respect to the kidney disease, so at the moment his kidneys are not working and that's why he is on dialysis, even if you replace that with a transplant kidney that works well...the general trend is that the kidney will fail over time. So I think this represents a permanent state where he will flux between having...a kidney that's functioning, then a kidney that's not functioning, then maybe another transplant where hopefully the kidney is functioning, and then not functioning...[He] will never become a person who hasn't got a major life-long problem because of his underlying kidney disease...[so] I think it is a permanent condition. Even though we have a temporary solution which is a transplant, the reality is that in almost all cases, if you live long enough that kidney will fail....

[From] my perspective these patients don't simply disappear once they've had their transplant. They become...life-long members of the transplant team and they require life-long follow-up and usually further intervention down the track.[38]

1. Dr 'E' has been the applicant's nephrologist since 2010. He provided written reports dated 17 June 2015, 31 August 2015, 20 October 2015, 2 December 2015, 27 May 2016, 3 July 2018, 19 November 2018 and 14 May 2020, and gave oral evidence at the Tribunal hearing on 19 August 2020.
2. On 3 July 2018, Dr 'E' reported the applicant has 'kidney disease secondary to a form of nephritis called IgA nephropathy' and noted that:

While [GXYZ] is potentially transplantable, there is some degree of uncertainty regarding timing. The potential waitlist on the deceased donor waitlist can be up to four years.

His other medical problem is insulin-dependent diabetes mellitus complicated by autonomic nephropathy. His blood pressure therefore can be extremely variable.[39]

1. In a report dated 14 May 2020, Dr 'E' provided the following update regarding the applicant having a kidney transplant and his current dialysis treatment:

At his age the optimum therapy would be a renal transplantation and he is currently listed on the renal transplant list. The average waiting time for a transplant is about two to four years. Unfortunately there have been a few intervening problems that have delayed his transplant evaluation. These include previous infections and management of his mental health. We do not have control over the timing of his transplantation since he is on a deceased donor list. There is a national/state allocation process which we do not have control over.

Regarding his dialysis he is independent. He continues to live independently at home and does not require very much by way of medical support. While it is true that transplant if successful would prevent the need for dialysis but unfortunately it would not cure him of his diabetes. He has type 2 diabetes which is unlikely to benefit from pancreas transplant...

With a good functioning transplant there is a risk of recurrence of IgA but it is rare for patients to progress to terminal kidney failure because the appropriate immunosuppression would mitigate against the disease progression. Obviously with a functioning transplant [GXYZ] should be able to function at the same level as an appropriate aged matched patient without chronic medical disease.

Regarding his diabetes some of the transplant medication will likely make his requirement for insulin worse but if well managed his risk of complications from diabetes will be no higher than someone without a transplant. In the unlikely event that he loses his graft from either IgA disease or rejection he may be transplantable again if his age at the time of graft loss and his cardiovascular status are no barrier to further transplantation. Unfortunately it is impossible to predict if and when the transplant will fail but if he does get a good match there is a good possibility that his transplant could last several years.[40]

1. At the Tribunal hearing, Dr 'E' described the applicant as 'well dialysed' and explained the effect of dialysis on the applicant's daily life:

As long as he is well dialysed, he is able to do most of the things that his peers are able to do in terms of his personal hygiene, in terms of his ability to get from one place to the other, he should be able to function normally. In other words we don't put any restrictions on function as far as abilities go.[41]

1. Dr 'E' outlined to the Tribunal the procedure of treatment for the applicant post-transplant. He explained the effect of immunosuppression medications in view of the applicant's previous adverse reactions to steroid treatment for nephritis on his insulin-dependent diabetes and his depression and anxiety. Dr 'E' explained that nephritis is treated with a high dose of steroid (which he described as over 60 mg of Prednisone); he noted that many people have difficulties tolerating a dose of Prednisone over 25 mg daily but are able to tolerate a daily dose of between 5 mg and 10 mg Prednisone quite well.[42] Dr 'E' said the applicant will be required to take 20 mg to 25 mg of Prednisone daily for about eight weeks after his kidney transplant and the dose will then be reduced over a four week period to about 10 mg daily, which he believes the applicant will be able to tolerate.[43] Dr 'E' acknowledged that, in view of the applicant's 'background mental health', he will have 'a very thorough assessment' to ascertain 'the appropriate Prednisone dose' following his transplant.[44] He noted that 'any steroid dose which is in excess of 15 [mg]' is 'likely to play up with [the applicant's] mental health'.[45]
2. In terms of potential outcomes for the applicant after he has a kidney transplant, Dr 'E' opined that even with immunosuppression medication to prevent the kidney transplant from being rejected and the IgA from damaging the kidney, IgA nephropathy 'almost always' reoccurs in the transplant kidney.[46]

1. The applicant was referred to Ms 'F' (consultant psychologist) for counselling in 2009; Ms 'F' has provided written reports about the applicant dated 21 June 2015, 27 January 2016 and 11 August 2016. These reports review the applicant's therapy, his progress and his need to participate in regular counselling appointments every four to six weeks.
2. On 11 August 2016, Ms 'F' observed the applicant's:

...experience of anxiety and depression has improved over recent years with a combination of counselling support, as well as [GXYZ's] strong commitment and motivation to improve and maintain his health and wellbeing.[47]

1. Dr 'G' (clinical psychologist) provided written reports dated 22 April 2016, 17 June 2018 and 28 May 2019, and gave oral evidence at the Tribunal hearing on 11 March 2020 and 19 August 2020.
2. On 17 June 2018, Dr 'G' described the applicant's diagnoses and symptoms, and set out the supports he requires from the NDIS as follows:

[GXYZ] suffers from Major Depression and Generalised Anxiety Disorder. [GXYZ] has lived with these disorders for over 25 years and they significantly impact on his daily functioning... He experiences a wide range of symptoms, including suicidal ideation, insomnia, lack of motivation, anhedonia, social withdrawal, avoidance, and hopelessness. It is difficult for him to have sustained engagement in work or study, although he is very interested in both. [GXYZ] often describes finding it difficult to find the motivation to get out of bed, prepare food and complete home duties...

In my opinion, the chronicity and severity of [GXYZ's] psychological and physical conditions suggest he is an appropriate recipient of the National Disability Insurance Scheme. His conditions impact on his ability to live a "normal" and fulfilling life without additional supports in place. He would particularly benefit from extra psychology sessions, one-on-one support to engage in meaningful activity, and practical help around the home. These additional supports would provide a significant improvement in [GXYZ's] quality of life and engagement with a sense of meaning and purpose.[48]

1. Dr 'G' further reported on 28 May 2019 that the applicant's conditions of depression and anxiety 'are complex in their presentation, recurring and treatment resistant'.[49]
2. At the Tribunal hearing, Dr 'G' observed the applicant's situation was complex due to the interaction between his physical and psychological conditions. For example, the applicant's anxiety and depression is impacted by the steroids used to treat his IgA nephropathy and the fatigue he experiences following a dialysis session. Dr 'G' further explained the applicant worries excessively, which means he is often in a state of hyperarousal and hypervigilance. She noted that:

...when people have an anxiety disorder their central nervous system is often...elevated, so the fight or flight response is triggered..., which precipitates a higher heart rate, higher breathing rate and other physiological symptoms... So you tend to feel...exhausted by small episodes or small events in your life...

[There is a] cumulative effect for people that have physical health issues where...their fatigue levels are often already quite significant and...additional energy output from dealing with anxiety can really create a lot of dysfunction and impairment in their lives.[50]

1. Dr 'G' described the applicant as 'treatment resistant' because he does not respond to psychological treatment as usual due to his entrenched 'personality vulnerabilities and long-term issues'.[51] She opined the applicant is 'likely to need psychological support for many, many years'.[52]

1. Written reports by two occupational therapists were filed with the Tribunal: a report by Ms 'H' dated 2 August 2019 and a report by Ms 'I' dated 26 November 2019. Ms 'I' also provided oral evidence to the Tribunal on 20 August 2020.

1. Ms 'H' completed an assessment of the applicant in her clinic for the purpose of his access to the NDIS. The report by Ms 'H' provides an overview and assessment of the applicant's functional capacity based on his self-reporting rather than observing his functional capacity at home. Ms 'H' summarised the applicant's situation as:

Occupational Therapy functional assessment has identified that [GXYZ's] mental health conditions significantly impact on his functional capacity across a wide range of functional domains and individual functional tasks in his life.

The functional domains that [GXYZ] is considered to have reduced capacity to perform due to his mental health conditions are: communication and self-care.

While [GXYZ] is considered to have substantially reduced functional capacity in the domains of: social interaction, learning/ cognition (more so when mentally unwell) and self-management.[53]

1. Ms 'H' provided limited explanation for the basis of this assessment in her report and did not give evidence at the Tribunal hearing.

1. Ms 'I' undertook an occupational therapy assessment of the applicant at his home on 21 October 2019; she subsequently produced a report dated 26 November 2019 and gave oral evidence to the Tribunal on 20 August 2020.
2. The assessment by Ms 'I' was based on the applicant's self-reporting, including when he is 'well' and 'unwell', and her observations. Ms 'I' provided a summary of her assessment of the applicant as follows:

My assessment indicates [GXYZ] is currently participating in all self-care activities and maintaining a significant medical treatment and work schedule. With the energy he has left he chooses to engage in social outlets and quality time with his 13 year old son. His participation in domestic tasks is a low priority and largely neglected which can be considered a self-limiting behaviour with respect to domestic activity.

I acknowledge he is genuinely impacted by fatigue and latent fatigue associated with his physical health conditions and side effects of essential treatment. Further, at times his fatigue and functional levels are impacted by lethargy and lack of motivation due to his long-standing mental health conditions. In my opinion however, he does have functional capacity to participate in all light to moderate tasks including meal preparation and some heavy domestic activities with the use of activity pacing, ergonomic techniques and light weight equipment. Most importantly it is therapeutic for him to do so for his mental and physical health...

He would benefit from assistance with a heavy spring clean to improve the baseline cleanliness of his house...He may then feel more able to maintain a greater level of hygiene if this was in place...

[GXYZ] thinks his capacity for participation in domestic tasks is severely limited and if this needs to become a greater priority for him, in particular preparing his own meals 7 day [sic] a week, it will detract from his capacity to maintain other community roles.[54]

1. At the hearing, Ms 'I' observed that the applicant was 'able' to do domestic tasks but 'he's not doing these tasks'.[55] She accepted that having an initial house clean would be easier for the applicant and proposed that this assistance could be available to the applicant through either a community or non-government organisation, or the Department of Health. Ms 'I' also set out assistance available to the applicant, such as access to further mental health sessions and/or different professionals including occupational therapists, could be provided through the health system.

1. As set out at paragraph 15 above, the sole issue for determination by the Tribunal is whether the applicant meets the access criteria in section 24 of the NDIS Act.
2. At the outset of my consideration, I note the medical evidence before the Tribunal shows the applicant has been diagnosed with the following conditions:
   • IgA nephropathy with stage V renal failure requiring haemodialysis;
   • insulin-dependent diabetes (also referred to as LADA); and
   • major depression and generalised anxiety disorder.
3. In oral submissions to the Tribunal on 21 August 2020, the applicant's legal representative conceded his condition of diabetes is a 'complicating factor' but 'not a condition, impairment or a disability' for the purpose of the applicant's claim to become a participant in the NDIS.[56] For this reason, my consideration of whether the applicant meets the requirements in section 24 of the NDIS Act focuses only on his conditions of IgA nephropathy with stage V renal failure, and depression and anxiety.

1. The applicant must meet all requirements specified in paragraphs 24(1)(a)-(e) to satisfy subsection 24(1) of the NDIS Act. I now consider each of these requirements.

Paragraph 24(1)(a) - does the applicant have a disability?

1. Paragraph 24(1)(a) of the NDIS Act requires that a 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'.
2. Consistent with Mortimer J's decision in Mulligan v National Disability Insurance Agency[57], the following guidance is outlined in chapter 8.1 of the Access Operational Guideline:

For the purposes of becoming a participant in the NDIS the focus of 'disability' is on the reduction or loss of an ability to perform an activity which results from an impairment.

The term 'impairment' commonly refers to a loss of, or damage to, a physical, sensory or mental function.

The narrower definition of 'disability' employed by the NDIS seeks to target those people with disability who have a significant impairment to their functional capacity. This functional definition of disability focuses on outcomes for people with disability that are in the most need (Explanatory Statement to the Becoming a Participant Rules). [emphasis added]

1. These paragraphs specify that for a person to have a disability within the meaning of paragraph 24(1)(a) of the NDIS Act, they must demonstrate that:
   • they have an impairment, which is a loss of, or damage to, a physical, sensory or mental function; and
   • their impairment must be the cause of their reduction or loss of ability to perform an activity.
2. Having regard to the medical evidence, I am satisfied the applicant's diagnosed conditions of IgA nephropathy with stage V renal failure, and major depression and generalised anxiety disorder separately comprise 'a disability' consistent with the meaning in chapter 8.1 of the Access Operational Guideline for the following reasons.

1. The medical evidence of Dr 'A', Dr 'D' and Dr 'E' verifies that the applicant has been diagnosed with stage V renal failure (also referred to as end stage kidney disease) due to IgA nephropathy. This condition is currently being treated with haemodialysis three times weekly and the applicant is on the renal transplant list.
2. I find the applicant's condition of IgA nephropathy with stage V renal failure is a disability because it causes him to experience a loss of, or damage to, his physical function (his kidneys) and this, in turn, causes a reduction in his ability to perform activities.

Major depression and generalised anxiety disorder

1. The evidence of Dr 'G' and Dr 'A' corroborates the applicant's diagnosis of major depression and generalised anxiety disorder. The report of Dr 'G' dated 18 June 2018 describes the applicant experiencing symptoms such as suicidal ideation, anhedonia, social withdrawal and avoidance; this is despite the applicant participating in treatment of antidepressant medications and counselling over many years.
2. Dr 'G' also provided oral evidence on 19 August 2020 that the applicant's anxiety means he is often in a state of hyperarousal and hypervigilance, which creates physiological symptoms that leads to fatigue and impairment. This evidence supports my finding that the applicant's condition of depression and anxiety is a disability because it is an impairment that causes a loss of, or damage to, his mental and physical function, and causes a reduction or loss in his ability to perform activities.
3. I am satisfied the applicant has a disability within the meaning of paragraph 24(1)(a) of the NDIS Act.

Paragraph 24(1)(b) - are the applicant's impairments permanent?

1. Paragraph 24(1)(b) of the NDIS Act requires that the applicant's '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'.
2. The Participant 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. [emphasis added]

1. I now consider whether each of the applicant's impairments are, or are likely to be, permanent as required by paragraph 24(1)(b) of the NDIS Act and the Participant Rules.

1. The evidence of Dr 'D' and Dr 'E' describes the applicant's diagnosis of IgA nephropathy in 2010 and his subsequent process of treatments. Treatments have included the applicant undertaking two periods of oral steroids to treat nephritis: I note the treatment of steroid medications also exacerbated the applicant's symptoms of depression and anxiety, and required him to significantly increase his insulin dose for his diabetes. Since mid-2018, the applicant has had haemodialysis sessions three times a week and he is currently on the waitlist for a kidney transplant.
2. In considering whether the applicant's disability of IgA nephropathy with stage V renal failure is 'permanent', I have had particular regard to the evidence of Dr 'D' and Dr 'E'.
3. In his oral evidence to the Tribunal on 11 March 2020 (set out in detail at paragraph 49 above), Dr 'D' explained that even if the applicant has one or more kidney transplants, the general trend is that the 'kidney will fail over time' and the applicant will have a 'life-long problem' due to his underlying kidney disease: Dr 'D' opined the applicant's condition was 'permanent'.
4. Dr 'E', both in his written report dated 14 May 2020 and his oral evidence to the Tribunal, also noted the risk of the applicant's IgA nephropathy reoccurring after his renal transplant. While Dr 'E' wrote in his report that he considered appropriate immunosuppression medication taken after the transplant would mitigate this risk, he told the Tribunal that IgA nephropathy 'almost always' reoccurs in a transplant kidney.
5. In oral submissions, the applicant's legal representative contended that the relevant Participant Rule is 5.4, that sets out that an impairment is, or is likely to be, permanent only if there are no treatments that would be likely to remedy the impairment. The applicant's legal representative further referred to Participant Rules 5.5 and 5.6 and contended that, while a kidney transplant may improve the applicant's functioning, this improvement is limited to the life of the transplanted kidney.
6. The respondent's legal representative provided a written submission on 20 March 2020 that contended with respect to the applicant's IgA nephropathy with end stage kidney disease, that he 'will not suffer the effects of the impairment permanently' and that the 'proposed kidney transplant is a known, available and appropriate evidence-based...treatment that would be likely to remedy the impairment'.[58] [emphasis in original]
7. Considering all the medical evidence, I find the applicant's impairment of IgA nephropathy with stage V renal failure is, or is likely to be, permanent. In making this finding, I am satisfied the evidence of Drs 'D' and 'E' opine that the applicant's IgA nephropathy is more likely than not to reoccur even if the applicant has a renal transplant. I also note that there is a significant level of uncertainty - and therefore some difficulty in predicting the likelihood and/or extent of 'improvement' - in relation to the applicant undergoing a kidney transplant: this includes the timeframe for the applicant undergoing transplant surgery because he is on a deceased donor waitlist; the effect of immunosuppression (including steroid) medication post-transplant surgery on his conditions of depression and anxiety as well as his diabetes; the risk of the IgA nephropathy reoccurring in the transplant kidney; and the period of time that the applicant will receive benefit from the transplant kidney.
8. On balance, I find the medical evidence indicates that the applicant's impairment of IgA nephropathy with end stage kidney disease is permanent within the meaning of paragraph 24(1)(b) of the NDIS Act, notwithstanding that the impairment may vary in intensity and the severity of its impact on the functional capacity of the applicant may fluctuate.

Major depression and generalised anxiety disorder

1. The evidence shows the applicant was diagnosed with depression and anxiety in 1992 when he lived in New Zealand and, since this period, he has taken antidepressant medication and participated in counselling. I accept the applicant's evidence that he has experienced mental health issues since his childhood.
2. Dr 'G', in her report dated 28 May 2019, stated that the applicant's impairments of depression and anxiety are recurring and complex in their presentation. She opined in her report and her oral evidence that the applicant's depression and anxiety is treatment resistant as he does not respond to psychological treatment as usual due to entrenched personality vulnerabilities and long-term issues, and is likely to require psychological support for many years.
3. Based on the evidence, I am satisfied the applicant has engaged in evidence-based clinical, medical or other treatments as required by Participant Rule 5.4; this includes the applicant taking antidepressant medications since 1992 and participating in regular counselling sessions since 2009. I find there is no further treatment available that would be likely to remedy the applicant's impairment.
4. For these reasons, I am satisfied the applicant's impairments of depression and anxiety are permanent within the meaning of paragraph 24(1)(b) of the NDIS Act.

Paragraph 24(1)(c) - do the applicant's impairments result in substantially reduced functional capacity to undertake communication, social interaction, learning, mobility, self-care or self-management?

1. To comply with paragraph 24(1)(c) of the NDIS Act, the applicant must demonstrate that his impairments result in substantially reduced functional capacity to undertake any one or more of the activities specified in subparagraphs (i) to (vi): communication, social interaction, learning, mobility, self-care and self-management.
2. Paragraph 5.8 of the Participant Rules provides:

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. [emphasis added]

1. Further guidance is set out in chapter 8.3.1 of the Access Operational Guideline:

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.

...

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]

1. I note that the applicant's legal representative submitted that his impairments result in a substantially reduced functional capacity to undertake activities only in the domains of social interaction, learning, self-care and self-management. I am also satisfied there is no evidence to support the applicant's impairments of IgA nephropathy with stage V renal failure and depression and anxiety result in a substantially reduced functional capacity for him to undertake activities in the domains of communication and mobility.
2. I now turn to considering whether the applicant's impairments result in a substantially reduced functional capacity to undertake activities of social interaction, learning, self-care and self-management.
3. I note at the outset of my consideration that the evidence before the Tribunal about the applicant's functional capacity is inconsistent and contrary.
4. In considering the evidence, I accept the evidence of Dr 'A' and Dr 'G' that the applicant's health situation is complex because of the interaction between his physical medical conditions and his psychological impairments. This is clearly demonstrated by the example of the applicant's treatment of oral steroids for nephritis adversely impacting on his symptoms of depression and anxiety, and his insulin treatment for diabetes. I also accept the applicant's evidence that he experiences fatigue following his haemodialysis sessions and this also affects his mental health.
5. However, the applicant's written and oral evidence describing his capacity to undertake activities of social interaction, learning, self-care and self-management lacked consistency.
6. As outlined in paragraph 24 above, the applicant wrote in his statement of lived experience that in September 2019 he was only able to cook a dinner meal once a week and relied on meals cooked by members of his church three times a week, was unable to clean his home because he does not have the stamina, had difficulties sometimes remembering his medications and relied on technology for managing his finances. The applicant also wrote that he was seeking support to engage in study/part-time employment and leisure/social activities.
7. In his oral evidence to the Tribunal on 18 August 2020, the applicant confirmed that he cannot participate fully in daily activities that 'normal people do', his focus for daily life is 'survival' and he struggles with household activities such as cooking in accordance with his dietary requirements, cleaning his home and doing laundry due to his extreme fatigue. He noted he manages his fatigue by prioritising activities.
8. This evidence by the applicant is supported by:
   • the report of Dr 'A' on 12 July 2019 that noted the applicant's complex health situation significantly impacts on his ability to manage daily household tasks, maintain social connections and participate in activities with his son;
   • the written and oral evidence of Dr 'G' that noted his conditions impact on his ability to live a '"normal" and fulfilling life';
   • the oral and written evidence of Ms 'B' and Ms 'C'; and
   • the written report of Ms 'H', although I place minimal weight on this evidence in view of the limited explanation of her assessment and conclusion.
9. However, the applicant also gave oral evidence that he currently is employed in part-time employment scanning and recording files, and undertaking quality assurance for up to 15 hours per week (worked over two to four days) in a supportive work environment. He also undertakes one to two hours a week of volunteering at his church completing administrative tasks such as reconciling accounts, sending emails, and paying bills and staff. He attends a wellness centre three times a week (pending COVID-19 restrictions) and participates in church activities such as bible study sessions about a third of the time.
10. I observe that the applicant currently undertakes these activities in the context of having three sessions of hemodialysis per week that take approximately seven hours from the time he leaves home to the time he returns. The applicant experiences fatigue and headaches following these sessions but is able to drive himself home.
11. The applicant told the Tribunal he has been in a steady relationship since 2011, has four long-term friends from university and church, and engages with social media. He confirmed that he was able to complete a university degree in humanities from 2011 to 2014 at 75% of a full-time study load and undertake a TAFE course in business administration in 2017, despite his impairments of depression and anxiety and IgA nephropathy.
12. This evidence is consistent with:
    • the oral evidence of Dr 'E' to the Tribunal that the applicant is 'well dialysed' and should be able to 'function normally' in terms of activities including 'personal hygiene' and getting from 'one place to the other'; and
    • the oral and written evidence of Ms 'I' that while the applicant is 'genuinely impacted by fatigue' and his 'fatigue and functional levels' are impacted by his mental health, he has 'functional capacity to participate in all light to moderate tasks' using 'activity pacing, ergonomic techniques and light weight equipment'.
13. I accept the applicant experiences significant fatigue and periods that he is 'unwell' due to his impairments of IgA nephropathy with stage V renal failure requiring haemodialysis and his depression and anxiety. I also accept that due to these impairments, the applicant needs to pace and prioritise his activities.
14. However, the considerable discrepancies in the evidence that I have set out in the paragraphs above cannot be ignored. These inconsistencies appear to reflect a significant disconnect between the applicant's perception, and self-reporting to his medical practitioners, of his functional capacity, and an objective assessment of whether his impairments result in substantially reduced functional capacity as required by paragraph 24(1)(c) of the NDIS Act.
15. In particular, I find the applicant's evidence about his current capacity to participate in part-time employment up to 15 hours per week and undertake volunteer work each week - both of which require consideration of administrative details and computer literacy - is not consistent with a significant functional incapacity to undertake activities in the domain of learning or self-management. Further, I am satisfied the applicant's evidence about regular attendance at a wellness centre (pre COVID-19), regular communication with Ms 'B' and Ms 'C', periodic attendance at church activities and occasional social engagements with friends is not consistent with him having a significant functional incapacity to undertake activities in the domain of social interaction. Finally, I note the applicant was unable to provide a clear reason to the Tribunal about why he could not reduce his hours of employment in order to undertake activities of self-care such as planning and cooking meals that he could freeze and re-heat after dialysis sessions, and/or cleaning his home. For these reasons, I cannot be satisfied that he has a significant functional incapacity to undertake activities in the domain of self-care.
16. Therefore, I do not find that the applicant's impairments result in substantially reduced functional capacity to undertake activities in any of the domains of communication, social interaction, learning, mobility, self-care or self-management as required by paragraph 24(1)(c) of the NDIS Act.

Paragraph 24(1)(d) - do the applicant's impairments affect his capacity for social or economic participation?

1. Paragraph 24(1)(d) of the NDIS Act requires that the applicant's impairment or impairments affect his capacity for social or economic participation.
2. The applicant's oral evidence to the Tribunal was that he has been employed on a part-time basis since December 2019. He said he is unable to work for more than 15 hours per week and relies on the disability support pension. The applicant's evidence was that his social contact was limited to his partner and about four friends; he is in contact with his partner daily through phone calls and text messages, and sees his friends periodically at church and occasional coffee outings. This is also supported by the evidence of Ms 'B' and Ms 'C', and the written reports of Dr 'A' dated 12 July 2019 and Dr 'G' on 17 June 2018.
3. On balance, I find the requirement in paragraph 24(1)(d) of the NDIS Act is met because the applicant's impairments affect his capacity for social and economic participation.

Paragraph 24(1)(e) - is the applicant likely to require support under the NDIS for his lifetime?

1. Chapter 8.5 of the Access Operational Guideline states the following:

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]).

1. As set out in paragraphs 92 and 96, I am satisfied that the applicant's impairments of IgA nephropathy and depression and anxiety are, or are likely to be, permanent in accordance with paragraph 24(1)(b) of the NDIS Act. I am further satisfied, as I conclude at paragraph 115, that the applicant's impairments do not result in him having substantially reduced functional capacity to undertake activities in any of the domains of communication, social interaction, learning, mobility, self-care or self-management.
2. 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.
3. 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.

1. For the reasons set out above, I am satisfied the applicant does not meet the access criteria in section 24 of the NDIS Act.

I certify that the preceding 124 (one hundred and twenty -four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.......[sgd].................................................................

[2] [2008] ATS 12.

[3] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

[20] Oral evidence of the applicant on 18 August 2020, pages 10-11.

[21] Oral evidence of the applicant on 18 August 2020, pages 15, 17, 27.

[22] Oral evidence of the applicant on 18 August 2020, page 17.

[23] Oral evidence of the applicant on 18 August 2020, page 20.

[24] Oral evidence of the applicant on 18 August 2020, page 31.

[25] Oral evidence of the applicant on 18 August 2020, page 60.

[26] Oral evidence of the applicant on 20 August 2020, page 155.

[27] Oral evidence of the applicant on 20 August 2020, page 158.

[28] Oral evidence of Ms 'B' on 20 August 2020, page 165.

[29] Oral evidence of Ms 'B' on 20 August 2020, page 165.

[30] Oral evidence of Ms 'B' on 20 August 2020, page 166.

[31] Oral evidence of Ms 'C' on 11 March 2020, page 62.

[37] Oral evidence of Dr 'D' on 11 March 2020, page 38.

[38] Oral evidence of Dr 'D' on 11 March 2020, pages 40-41.

[41] Oral evidence of Dr 'E' on 19 August 2020, page 125.

[42] Oral evidence of Dr 'E' on 19 August 2020, page 122.

[43] Oral evidence of Dr 'E' on 19 August 2020, page 131.

[44] Oral evidence of Dr 'E' on 19 August 2020, page 135.

[45] Oral evidence of Dr 'E' on 19 August 2020, page 123.

[46] Oral evidence of Dr 'E' on 19 August 2020, pages 132-133.

[50] Oral evidence of Dr 'G' on 19 August 2020, page 93.

[51] Oral evidence of Dr 'G' on 19 August 2020, page 91.

[52] Oral evidence of Dr 'G' on 19 August 2020, page 112.

[55] Oral evidence of Ms 'I' on 20 August 2020, page 197.

[56] Oral submissions of the applicant's legal representative on 21 August 2020, page 238.

[57] [2015] FCA 544 at [15] to [16].

[58] Respondent's position with respect to section 24(1)(b) of the National Disability Insurance Scheme Act (Cth) in accordance with the Tribunal's Direction issued on 12 March 2020, 20 March 2020, paragraphs 11 and 13.