Mulligan v National Disability Insurance Agency

1. A delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the NDIA or Agency) determined on 19 May 2017 that the applicant did not meet the access criteria specified in sections 21-25 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
2. The applicant requested an internal review and, on 8 September 2017, the NDIA affirmed the decision (the internal review decision).
3. On 5 October 2017, the applicant made an application for review of the internal review decision to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal).
4. The Tribunal heard the matter in Sydney on 28 and 29 March 2019. The applicant was legally represented; she attended the hearing on 28 March 2019 from the Central Coast and provided oral evidence by videoconference with the support of a disability advocate.

1. The Parliament of Australia expressly provided objects and principles in the NDIS Act to give guidance on the interpretation of the statute. The objects of the NDIS Act are set out in section 3 and include:
   • giving 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);
   • supporting the independence and social and economic participation of people with disability;
   • enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
   • facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability.
2. Paragraph 3(3)(b) of the NDIS Act also provides that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.
3. The general principles guiding actions under the NDIS Act are contained in section 4 and include:
   • affirming that people with disability should be supported to participate in and contribute to social and economic life to the extent of their ability;
   • acknowledging that people with disability should be supported to receive reasonable and necessary supports;
   • respecting the privacy and dignity of people with disability; and
   • promoting positive personal and social development of people with disability.
4. Under subsection 209(1) of the NDIS Act, the Minister may make rules prescribing matters under the 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.
5. Operational Guidelines written by the CEO of the NDIA also assist staff to make decisions in accordance with the NDIS Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

1. To become a participant in the NDIS, the applicant must satisfy the access criteria, which are summarised in subsections 21(1) and 21(2) 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).

(2) If the CEO is not satisfied as mentioned in subsection (1), the person meets the access criteria if the CEO is satisfied of the following:

(a) at the time of considering the request, the person satisfies the requirements in relation to residence prescribed as mentioned in subsection 23(3) (whether or not the person also satisfies the requirements mentioned in subsection 23(1));

(b) the person:

• (i) was receiving supports at the time of considering the request or, if another time is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph, at that other time; and

• (ii) received the supports throughout the period (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; and

• (iii) received the supports under a program prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph;

(c) if the person becomes a participant, the person would not be entitled to receive the supports referred to in paragraph (b), or equivalent supports.

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 parties also agree that section 25 (early intervention requirements) and subsection 21(2) (alternative access criteria) of the NDIS Act are not relevant to this matter.
2. The issue in dispute, and therefore the issue for determination by the Tribunal, is whether the applicant meets the access criteria set out in section 24 of the NDIS Act (disability requirements) in relation to her bilateral knee condition and her psychiatric condition of borderline personality disorder.
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:

• (i) communication;

• (ii) social interaction;

• (iii) learning;

• (iv) mobility;

• (v) selfcare;

• (vi) selfmanagement; and

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

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

(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 has a complex medical history; she has been diagnosed with diabetes mellitus, obesity, chronic knee and back pain, severe spinal stenosis, severe premature osteoarthritis, severe borderline personality disorder, bipolar disorder, post-traumatic stress disorder, and anxiety/depression.
2. For the purposes of the applicant's application to access the NDIS, however, she only relies on her conditions of bilateral knee pain and borderline personality disorder to meet the criteria in section 24 of the NDIS Act. Consequently, the evidence before the Tribunal that is set out below focuses solely on these two conditions.
3. The evidence before the Tribunal comprises:
   • evidence from medical practitioners who have examined and/or treated the applicant;
   • reports by community support workers regarding the applicant's functionality; and
   • the applicant's written statement signed on 29 August 2018 and her oral evidence on 28 March 2019.

1. The medical evidence shows the applicant:
   • had a stabilisation of her patella performed in 1985;
   • sustained a workplace injury to her right knee in November 2009;
   • underwent a right total knee replacement in May 2011;
   • developed pain, swelling and instability in her left knee from 2011-2012;
   • had a left total knee replacement in November 2014; and
   • underwent revision surgery on her left knee in July 2016.
2. A medico-legal report by Dr "B" (consultant surgeon) dated 24 February 2017 opined the applicant had reached "maximum medical improvement" in relation to her right knee and she had "a permanent impairment" with "limitation of movement and pain in her right knee".[2] Dr "B" concluded that the applicant, for the purpose of her workers' compensation payments, sustained a whole person impairment (WPI) percentage of 27%.
3. Based on Dr "B"'s assessment, the applicant was advised by her insurer on 13 April 2017 that her WPI percentage is "over 20%" and therefore her entitlement to receive workers' compensation payments will continue.[3]
4. Dr "C" (orthopaedic fellow) reported on 29 May 2017:

From [the applicant's] bilateral knee point of view, especially her right, which she is being reviewed for, there is no concerns or issues. On the long leg alignment views there is some early arthritis involving her hip joint and this may well be the cause of most of her problem.

We explained to her that no further surgical intervention is required for her knee, which examines nicely and I do not feel it is the main cause of her symptoms. She does still need to work hard on weight loss through exercise and diet and surgically if she has a means of doing so and if it is safe.[4]

1. Dr "C" noted that the applicant had lost weight through diet and exercise, and was contemplating gastric bypass surgery.
2. Dr "D" (general, laparoscopic and bariatric surgeon), in a report dated 11 May 2017, acknowledged the applicant's "significant psychiatric history" and "multiple medical conditions" and advised that he "was reluctant to proceed with any [weight loss] operations at this stage".[5]
3. Dr "A" has been the applicant's treating general practitioner for the past two and a half years. Dr "A" provided a written report dated 17 May 2018 and gave oral evidence at the Tribunal hearing on 29 March 2019 by teleconference.
4. Dr "A" stated to the Tribunal that he sees the applicant for appointments either weekly or fortnightly, and consults with specialists regarding her complex physical and psychological conditions approximately every three months.
5. In relation to the applicant's bilateral knee pain, Dr "A" advised that she continues to consult with Dr "E" (pain specialist) for management of her severe and chronic knee pain, which is treated with a high dosage of opioids. Dr "A" said the applicant was limited in her mobility and only able to walk 20 to 30 metres before needing to rest. He said she manages without any walking aids but rather holds onto walls/furniture to balance and rest.
6. Dr "A" said that although the applicant had already lost 60 kilograms through diet and exercise, she needed to lose a further 20 kilograms. He also noted that the applicant would benefit from having abdominoplasty, which would surgically reduce her weight. He opined that further weight loss could lead to the applicant's current high opioid dose being reduced and she would likely be able to walk up to 50 metres without resting. Dr "A" advised that, even with further weight loss, the applicant will continue to experience chronic pain in her knees for the rest of her life and her knees will never return to full function.

1. The medical evidence shows the applicant has significant and longstanding psychiatric conditions within the context of her life experiences and physical injuries/pain.
2. A report by Dr "F" (psychiatrist) dated 17 February 2014 diagnosed the applicant with:

Somatoform Chronic Pain Disorder associated with psychological factors...

In this condition the pain perception is reported to cause clinically significant distress and impaired functioning while the verifiable underlying pathology does not explain the degree of incapacity.

There are psychological or attitudinal factors which play a major role in the onset, severity, exacerbation or maintenance of the pain. The most common presenting symptoms are tingling, pain or numbness associated with comorbid symptoms of depression and anxiety which is consistent with the symptomology displayed by [the applicant].

The development of Somatoform Disorder is considered to be multifactorial and has been associated with dysfunctional personality traits, ineffective coping mechanisms, adverse life experiences, impaired relationships, the impact of a negative "context" of the circumstances of the injury and the development of abnormal illness behaviour associated with the adoption of the "invalid role".[6]

1. Dr "G" (consultant psychiatrist) reported on 19 May 2015 that the applicant has multiple psychiatric issues. He briefly described a past history of sexual assault when she was a child and self-harm behaviour in adolescence, postnatal depression following the birth of her daughter that was treated by ECT (electroconvulsive therapy), her workplace injury to her right knee in 2009 and her experience of chronic pain associated with her physical medical conditions, the sexual assault of her daughter when she was in year seven at high school, and her husband's diagnosis of neurofibromatosis with multiple cerebral lesions.[7]
2. In March 2016, the applicant was admitted to a private hospital for three weeks after presenting with depressive and anxiety symptoms.[8]
3. Dr "H" (general and forensic psychiatrist) made a psychiatric assessment of the applicant and provided medico-legal reports dated 13 June 2018 and 28 July 2018. Dr "H" also gave oral evidence to the Tribunal on 29 March 2019 by teleconference.
4. Based on the information in Dr "H"'s report on 13 June 2018 (and consistent with the report of Dr "G"), the applicant's psychiatric history can be summarised as follows:
   • she was sexually assaulted around the age of 10 or 11 years by an adult neighbour;
   • she was bullied at high school and saw a school counsellor;
   • she left her family home when she was 18 years old but continued to have nightmares and flashbacks when she visited her parents' home due to her childhood sexual assault;
   • in relation to this sexual assault, she was advised by her mother to "build a bridge and get over it";
   • she had a traumatic labour when her daughter was born in 2000, which raised issues around her childhood sexual assault;
   • she was admitted to hospital in 2000 for six to eight months when her daughter was a few months old;
   • from 2000 to 2005, she underwent ECT treatment in hospital;
   • she did not have any psychiatric hospitalisation between 2007 and 2015;
   • her last psychiatric admission to a private hospital was in March 2016;
   • she has taken medication for her psychiatric conditions since 2000; and
   • she has been seeing a psychologist "on and off" for about eight years.[9]
5. Dr "H" also described the applicant's family situation; in particular, that her daughter (now 18 years old) has a neurological disorder and learning difficulties, and has self-care needs. The applicant's (ex)husband and father of her daughter also had a tumour/epilepsy and suicided in 2016, six months after the applicant separated from him.
6. Dr "H" opined that the applicant had a complicated mental health history. He diagnosed her with a borderline personality disorder and a possible concomitant long-standing recurrent mood disorder characterised by dysthymia or recurrent depression. Dr "H" observed that the applicant's:

...mental health problems will expect to have a waxing and waning course over the years (as they have seen over the last three decades), however [she] appears to be in a current stage of relative stability. There is a constant vulnerability to relapse under circumstantial life stresses.[10]

1. Relevant to the Tribunal proceedings, in his report dated 28 July 2018, Dr "H" described the applicant's borderline personality disorder and long-standing mood disorder as permanent. He noted that these conditions "may have a fluctuating level of activity of symptomology" but are "long-standing, chronic, and not expected to fully resolve in the foreseeable future".[11] Dr "H" stated that the applicant:

has no major psychiatric incapacity with respect to communication, learning, mobility or self-care. Her psychiatric conditions do however cause some impairment with respect to social interaction and self-management.[12]

1. At the Tribunal hearing on 29 March 2019, Dr "H" described the core features of borderline personality disorder as:

...a personality structure and formation that has origins partly in genetics, partly in development and partly exposure to trauma throughout life. The core features relate to affect, dysregulation, mood and a...disturbance in a sense of self... [T]he main areas of interference...are being able to form relationships, being able to maintain relationships, problems with mood disorders and anxiety, and...with suicidality and self-harm. There are often other elements as well, such as volatile relationships, a tendency to fall into abusive relationships, sometimes significant substance and alcohol abuse. That's a pervasive and long-standing disorder. It relates to the personality structure, so change in treatment is often long-term and slow and gradual, and there tends to be a lifelong vulnerability to these areas even when things start to get better.[13]

1. Dr "H" opined that these features of borderline personality disorder had led to the applicant's chronic social dysfunction and she was in a "very limited social situation".[14] Dr "H" observed that a "normal/average" person without borderline personality disorder would have social networks, engage with work colleagues, participate in clubs/interests, have a circle of close friends and a wider circle of associates, and expect to either wish to be or be in a primary relationship. In contrast, Dr "H" noted that the applicant's social network consisted only of her daughter and one or two friends. She had also formed a therapeutic relationship with her general practitioner and a support worker but he noted that this did not reflect a level of social functioning. Dr "H" further stated that any social media presence, such as a Facebook profile, does not reflect the applicant's capacity to have functional face-to-face relationships with people.
2. At the Tribunal hearing, Dr "H" reiterated that his written reports considered the applicant's day-to-day functioning, which was currently relatively stable, but noted she would require a very different level of care and attention during periods of being acutely suicidal and needing hospitalisation. Dr "H" described the applicant as having a "rudimentary level of functioning" in that she attends to her basic needs but has a restricted existence.[15] He observed the applicant self-manages her mental health by not leaving the house and interacting with other people.
3. Dr "H" suggested the applicant could be assisted in her social interactions through a general lifestyle measure such as a gym membership that would assist her participation in physical activity and social interaction, and a mental health focused program that addresses her social problems and isolation.

1. A report by Ms "I" (support facilitator) dated 24 March 2017, who worked with the applicant for two and a half years, outlined her functionality as follows:

MOBILITY

Functional impact / Type & frequency of support

[The applicant] walks with the aid of a four wheel walker and also at times uses a walking stick... [She] requires assistance to mobilise in and around the home and community...

The depressive moods...impedes [the applicant's] motivation and it is through these times [she] will require support to encourage and direct her to mobilise...

SOCIAL INTERACTION

Functional impact / Type & frequency of support

[The applicant] has an engaging personally [sic] and a good sense of humour at times she experiences low mood and low motivation. This inhibits her ability to attend to daily activities and access to the community. In terms of social interaction [the applicant] has difficulty in developing and maintaining relationships largely due to social anxiety... This causes feelings of low self-worth [and] impact[s] on building new relationships.[16]

1. At the hearing, counsel for the Agency relied on case notes drafted by Ms "I" to show the applicant has some capacity to leave her home and engage socially. It is my view that these case notes have limited probative value because the context of these notes was strongly disputed by the applicant and Ms "I" did not have an opportunity to explain these notes at the Tribunal hearing.
2. A functional assessment of the applicant's ability to safely and independently complete activities of daily living undertaken by Ms "J" (occupational therapist) was set out in reports dated 14 August 2017 and 24 November 2017. These reports were undertaken for the purposes of the applicant's workers' compensation proceedings and focused on her physical injury/ability. Ms "J" reported the applicant used arm support crutches externally but "was embarrassed"; she often used a trolley for support when shopping and limited her walking.[17] These reports recommended the applicant receive two hours per fortnight of domestic assistance (internal).
3. Ms "K" (mental health support worker) provided a report dated 31 August 2018. In this report, Ms "K" noted she was working with the applicant on a one-to-one basis to provide her with emotional and practical support to make telephone calls, attend appointments and undertake daily living skills. Ms "K" observed in relation to the applicant's social interaction:

Individual support to reconnect and attend social groups will assist [the applicant] overcoming the barriers that her anxiety and borderline personality disorder create. Supported involvement, encouragement and 1-1 support can be provided to assist [the applicant] overcoming her social anxiety and issues with self-worth and image. [The applicant] would also benefit from attending educational groups to work on social skills training...[18]

1. The applicant provided written and oral evidence to the Tribunal. She became increasingly distressed when providing her oral evidence on 28 March 2019 and questions to her from the NDIA's counsel were subsequently shortened.
2. In her evidence to the Tribunal, the applicant confirmed the medical reports about her bilateral knee condition, particularly following her workplace injury to her right knee in 2009. She described constant pain both when she walks and lies down and noted that her knee pain "stops [her] from doing lots of things".[19] The applicant also noted that she uses a four-wheel walker or walking stick to assist her to mobilise around her house, and accesses a mobility scooter if she needs to mobilise in the shopping centre. She said she is able to drive her car although not for extended periods.
3. In relation to her mental health, the applicant described to the Tribunal her experiences of being bullied at school, sexually assaulted by a neighbour and suffering depression. After the birth of her daughter in 2000, the applicant had suicidal and psychotic episodes. She was treated with ECT between 2000 and 2005, which the applicant described as follows:

When I was in hospital for MH (mental health) (which was often) I would undergo 3 treatments a week for 4 weeks then break for 2 weeks and then repeat. I also had ongoing maintenance sessions once a week every month.

Having ECT has really traumatised me. I was like a complete zombie after treatments. I couldn't remember where I'd been or who I was.[20]

1. The applicant said the following about the effect of her mental health on her capacity to leave her home and socially engage:

I experience a lot of paranoid and dark feelings. I have felt paranoid and anxious about being looked at and judged for many years... When I had [my daughter], I couldn't go out at all. Over the years, I have got to the stage where I can go out sometimes but some days I still can't... I can go out...when I absolutely have to go out; for instance, because I haven't done a grocery shop for a couple of weeks or I have to collect my mail or go to the doctors... We will also shop late at night so there are fewer people. Usually I only manage to do a regular size shop about every six weeks.

...Sometimes I will 'go out' meaning I will go for a drive but I can't get out of the car at all [as] I'm too anxious... I can't drive for more than a few minutes before my pain starts anyway, so it's always a short drive...

I feel really nervous about going into social settings like the shops because of how people are judging me and looking at me. I believe that this has gotten worse for me over the years.

The aftermath of any bad experience I have when out in public last a long, long time. I get super depressed. It makes me even more anxious and fearful of having an emotional meltdown next time. It triggers me to isolate more isolating triggers me to feel more panic when I do go out. It's exhausting.[21]

1. The applicant noted that her memory has been severely impacted because of ECT and she experiences moments that are "just blank", which cause her to get upset and angry.[22] While the applicant has previously attempted to do activities including a sewing course or play the saxophone, she told the Tribunal she has not undertaken any of these types of activities for about four years.
2. In her written statement, the applicant stated that she was currently trying to do some online study through TAFE but has been unable to complete any courses. She explained:

I try to do online study because I really want to work and I really need some purpose in my life. It is just that I feel like I also must stay in my home all the time, so I study online because I am too anxious to leave the house...[23]

1. The applicant told the Tribunal that her daughter has type I neurofibromatosis, which affects her fine and gross motor skills, and a learning disorder. She said that her daughter is now 18 years old but still requires assistance with self-care and constant reminding about how to undertake basic life skills; she provided an example of her daughter experiencing fear when opening the oven door. The applicant noted that her daughter's dependence on her has increased since her father suicided in 2016. She said that her daughter attended school and has attempted to attend TAFE but prefers to stay close to the applicant.
2. The applicant said her relationship with her mother is strained. The applicant noted that although her mother lives close by, they rarely see each other. She said they had an estranged relationship where she did not speak to her mother in the period from 2011 to 2016. The applicant's father resides in Port Macquarie and she sees him approximately every two to three years.
3. At the hearing, the applicant was asked by counsel for the NDIA about going on a cruise with her daughter in December 2016 and travelling to Thailand with her daughter in June 2018. The applicant said these trips were extremely difficult for her and her anxiety heightened. She explained that she went on the cruise to give her daughter a holiday after the suicide of her father (the applicant's (ex)husband) and to avoid the Christmas period with her mother, but rarely left their cabin. The applicant travelled to Thailand in June 2018 to support her daughter to spread the ashes of her father.
4. The applicant described a restricted social group. She has her daughter and two people who have been her friends for about the past eight years. One is a hairdresser who cuts her hair at home and sometimes assists with cleaning; the second friend usually contacts her daily by telephone to remind her about activities such as showering and attending appointments. The applicant's social supports also comprise her general practitioner, who she sees weekly for treatment and to ensure her workers' compensation payments; she also sees a mental health support worker and support facilitator on a regular basis. The applicant acknowledged that she has a Facebook profile page but said she does not post or engage on social media after her daughter was groomed online and sexually assaulted when she was in year seven.
5. The applicant currently receives workers' compensation payments, carer payment for her care of her daughter and rental assistance.
6. The applicant is seeking access to the NDIS for supports to assist her to mobilise and engage socially. She said that she previously attended Yakkalla (a place to assist people living with a psychosocial disability) and would again like to access this type of support.

1. Subsection 24(1) of the NDIS Act is satisfied if the applicant meets all five requirements specified in paragraphs 24(1)(a) to (e). I now consider each of these requirements.

Does the applicant have a disability within the meaning of paragraph 24(1)(a)?

1. Consistent with Mortimer J's decision in Mulligan v National Disability Insurance Agency [2015] FCA 544 at [15] to [16] (Mulligan), Chapter 8.1 of the Access Operational Guideline includes the following paragraphs:

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).

1. Counsel for the Agency submitted to the Tribunal that the applicant's knee condition was not an impairment within the meaning of the NDIS Act because there was no "loss of, or damage to, a physical, sensory or mental function". Rather, the NDIA contended the applicant's bilateral knee condition could be attributed to the diagnosis of Somatoform Pain Disorder by Dr "F" in February 2014.
2. The medical evidence before the Tribunal shows the applicant underwent a right total knee replacement in May 2011 and a left total knee replacement in November 2014. The applicant then underwent revision surgery on her left knee in July 2016. As the applicant underwent surgical operations on her left knee after February 2014 (the date Dr "F" diagnosed Somatoform Pain Disorder), I am satisfied the applicant's knee condition cannot be attributed solely to a psychological diagnosis. Indeed, the medical evidence of Dr "B" in February 2017 and Dr "A" in March 2019 is that, despite medical procedures and treatment, the applicant continues to experience constant pain in her knees and a reduction in her ability to walk/mobilise.
3. The relevant paragraphs in Chapter 8.1 of the Access Operational Guidelines, set out in paragraph 60 above, indicate 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.
4. I am satisfied that the applicant's knee condition is a disability consistent with paragraph 24(1)(a) of the NDIS Act. This is because the applicant's bilateral knee condition is an impairment that has resulted in a loss of her physical function and has caused a reduction in her ability to walk/mobilise.
5. The NDIA has accepted the applicant's psychiatric condition of borderline personality disorder is a disability within the meaning of paragraph 24(1)(a) in the NDIS Act. Based on the evidence of Dr "H", the Tribunal concurs with this finding.
6. I therefore find that both the applicant's knee condition and borderline personality disorder are a disability within the meaning of this provision.

Are the applicant's impairments permanent within the meaning of paragraph 24(1)(b)?

1. The Participant Rules provide the following guidance in considering when an impairment is permanent or 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. To support the contention the applicant's knee condition was permanent in accordance with paragraph 24(1)(b) of the NDIS Act, counsel for the applicant referred the Tribunal to the report by Dr "B". This report concluded the applicant's right knee condition was a "permanent impairment" for the purpose of her workers' compensation proceedings.
2. However, as set out in paragraph 67 above, the Participant Rules require me to consider whether there are any "known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment". The evidence of Dr "A" is that the applicant could lose further weight and undergo abdominoplasty, and this weight reduction would take pressure off her knees and improve her ability to mobilise. I also note the evidence of Dr "C" that set out there were no further surgical treatments available to the applicant for her knees but she would benefit from weight loss.
3. While I am satisfied the medical evidence shows that further weight loss by the applicant would reduce pressure on her knees and subsequently improve her capacity to mobilise, I find her bilateral knee condition is permanent within the meaning of paragraph 24(1)(b) of the NDIS Act because there are no further treatments available that will remedy the impairment.
4. In relation to the applicant's condition of borderline personality disorder, I found the evidence of Dr "H" compelling. Dr "H" clearly stated in his written and oral evidence that the applicant's psychiatric condition of borderline personality disorder is permanent, chronic and has been long-standing for over three decades. He noted that, while the applicant may experience fluctuating symptoms, these are not expected to resolve. Dr "H" further explained that the condition of borderline personality disorder relates to the personality "structure" with treatment being long-term and gradual; he noted the applicant would have a lifelong vulnerability "even when things start to get better".[24]
5. I am satisfied the applicant's bilateral knee condition and borderline personality disorder are permanent in accordance with paragraph 24(1)(b) of the NDIS Act.

Do the applicant's impairments result in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care and self-management within the meaning of paragraph 24(1)(c)?

1. To comply with paragraph 24(1)(c) of the NDIS Act, the applicant must demonstrate that her impairments result in substantially reduced functional capacity to undertake any one of the activities specified in subparagraphs (i) to (vi).
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.

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. Paragraph 24(1)(c) requires me to find the applicant's bilateral knee condition causes her to have a substantially reduced functional capacity. I note there is no evidence before the Tribunal that the applicant's bilateral knee condition affects her activities of communication, social interaction, learning, self-care or self-management.
2. Counsel for the applicant submitted that her bilateral knee condition results in the applicant having a substantially reduced functional capacity to mobilise. Counsel referred to the applicant's evidence that she requires the assistance of a four-wheel walker or walking stick to mobilise in her home, and uses a mobility scooter to access a shopping centre. The applicant's evidence was supported by the reports of Ms "I" (support facilitator) and Ms "J" (occupational therapist).
3. However, this evidence was inconsistent with the evidence of Dr "A", who said that his recommendation is the applicant does not require walking aids, despite her experiencing limitations with her mobility. Additionally, Dr "A" confirmed the applicant could walk 20 to 30 metres before resting and opined she would be able to walk up to 50 metres if she lost further weight and underwent abdominoplasty.
4. I also note the applicant's evidence that she was able to go on a cruise in December 2016 and travel overseas to Thailand in June 2018, which would have required her to mobilise through airports, and on-and-off an airplane and a boat. (I acknowledge the applicant's circumstances for both these trips was due to extremely personal circumstances to support her daughter.)
5. While I accept the applicant's bilateral knee condition causes significant difficulties in her capacity to mobilise, I do not find the applicant's bilateral knee condition causes her a substantially reduced functional capacity to mobilise. This is in view of the evidence by Dr "A" that he has not yet recommended the applicant use mobility aids and the applicant has a potential capacity to walk without aids for 50 metres if she loses further weight. I have regard to the Tribunal's decision in Holmes and National Disability Insurance Agency, which found that the capacity to walk 50 metres does "not amount to a substantially reduced capacity in...mobility" [emphasis added].[25]
6. I now turn to considering the functional effect of the applicant's condition of borderline personality disorder on her capacity to communicate, socially interact, learn, mobilise, self-care and/or self-manage.
7. In brief, the evidence before the Tribunal shows the applicant's psychiatric conditions are chronic and long-standing. The applicant's social interaction is limited to her daughter, two friends, and therapeutic relationships with her general practitioner and support workers. This level of functional interaction was described by Dr "H" as "rudimentary" and he noted the applicant self-manages her mental health by limiting her social engagement. The reports of Ms "I" (support facilitator) and Ms "K" (mental health worker) also noted the applicant requires assistance attending to daily activities, accessing the community, and developing and maintaining relationships due to her social anxiety.
8. Counsel for the Agency submitted to the Tribunal that the applicant does not have a substantially reduced functional capacity because she is able to care for her daughter, has commenced online TAFE courses, interacts with her general practitioner and support workers and two friends, has a Facebook page, and travelled with her daughter on a cruise in December 2016 and to Thailand in June 2018.
9. While this submission by the NDIA is factually correct, it provides a very superficial overview of the applicant's circumstances.
10. I find the evidence shows the applicant is currently the sole carer for her 18-year-old daughter, who has type 1 neurofibromatosis and a learning disorder. The applicant's caring responsibilities are due to the tragic circumstances of the applicant's (ex)husband suiciding in 2016 and the unavailability of any other family members to assist the applicant in the care of her daughter. In relation to the applicant's social network, Dr "H" provided evidence that her social situation is extremely limited; he noted the presence of a Facebook profile or a therapeutic relationship with medical and support professionals does not reflect the applicant's capacity to sustain "normal/average" functional social relationships. Regarding the applicant's attempts to undertake online study, I note that she has not been able to complete any courses of study. Finally, I am satisfied the travel undertaken by the applicant in December 2016 and June 2018 was solely to emotionally support her daughter in extremely personal and exceptional circumstances following the suicide of her daughter's father (the applicant's (ex)husband) and to assist her daughter to scatter her father's ashes.
11. In relation to the activities set out in paragraph 24(1)(c) of the NDIS Act, I am satisfied the evidence shows the applicant's borderline personality disorder results in a substantially reduced functional capacity to socially interact. While I also accept the applicant has difficulties with self-care, learning and self-management, I do not find the evidence supports that she has a substantially reduced functional capacity in relation to these activities.
12. I am therefore satisfied the applicant meets the requirement in paragraph 24(1)(c) of the NDIS Act.

Do the applicant's impairments affect her capacity for social or economic participation within the meaning of paragraph 24(1)(d)?

1. The applicant has not participated in paid employment since 2009 due to her complex medical conditions, including her bilateral knee condition and her psychiatric condition of borderline personality disorder. She has attempted to undertake online study but has been unable to complete any courses. I am satisfied her impairments affect her capacity for economic participation.
2. As set out in paragraphs 81 to 87 above, the evidence before the Tribunal shows the applicant's impairment of borderline personality disorder affects her capacity to participate in social activities.
3. I am satisfied that the applicant meets the requirement in paragraph 24(1)(d) of the NDIS Act.

Is the applicant likely to require support under the NDIS for her lifetime within the meaning of paragraph 24(1)(e)?

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 paragraph 70, I find the applicant's knee condition is permanent because the medical evidence shows it may be assisted by weight loss, but there are no further surgical treatments available to remedy the impairment. I also find in paragraph 80 that the applicant's bilateral knee condition does not cause a substantially reduced capacity to mobilise. However, the requirement in paragraph 24(1)(e) must be distinguished from the requirements in paragraphs 24(1)(b) and (c) of the NDIS Act.
2. Having regard to chapter 8.5 of the Access Operational Guideline, in considering the requirement of paragraph 24(1)(e), I am required to weigh up the applicant's overall circumstances, and whether these circumstances differentiate the applicant as part of the subset of people with "serious and permanent disabilities who are intended to be the beneficiaries of funded supports" through the NDIS.[26] I should also consider whether the applicant's support needs are most appropriately provided through another service system or through the NDIS.
3. In view of the evidence, I am satisfied that the applicant's overall situation in relation to her bilateral knee condition does not show she is likely to require support under the NDIS for her lifetime within the meaning of paragraph 24(1)(e). This is because, while the applicant currently has difficulties with mobilising, the evidence of Dr "A" is that further weight loss could result in improved mobilisation; further, Dr "A" stated the applicant manages without walking aids.
4. Based on the evidence regarding the applicant's psychiatric condition of borderline personality disorder, I find she will require assistance under the NDIS for her lifetime. The evidence of Dr "H" and Ms "K" observed the applicant would benefit from support to attend social groups to overcome barriers created by her borderline personality disorder and social anxiety. Dr "H" recommended a general lifestyle measure such as a gym membership and a mental health focussed program to address her social isolation. Ms "K" suggested the applicant could benefit from attending an educational group to work on her social skills. The applicant said she would like to attend the organisation, Yakkalla, for support regarding her social isolation and assistance to develop social relationships.
5. I find the applicant's overall circumstances show her psychiatric condition is permanent and serious, and the supports are most appropriately provided under the NDIS. I am satisfied the applicant meets the requirement of paragraph 24(1)(e) of the NDIS Act.

1. Overall, I find that the applicant satisfies the access criteria in section 24 of the NDIS Act for her psychiatric condition of borderline personality disorder but does not satisfy the requirements of section 24 of the NDIS Act for her bilateral knee condition.

1. The decision under review is set aside and the Administrative Appeals Tribunal remits the matter for reconsideration in accordance with the direction that the applicant meets the access criteria in section 24 of the National Disability Insurance Scheme Act 2013 (Cth).

I certify that the preceding 98 (ninety -eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...............................[SGD].........................................

[13] Oral evidence of Dr "H" on 29 March 2019.

[14] Oral evidence of Dr "H" on 29 March 2019.

[15] Oral evidence of Dr "H" on 29 March 2019.

[19] Oral evidence of the applicant on 28 March 2019.

[21] Exhibit A12, paragraphs 13-14, 18-19.

[24] Oral evidence of Dr "H" on 29 March 2019.

[25] [2017] AATA 2750 at [76].

[26] See Mulligan and National Disability Insurance Agency [2015] AATA 974 at [153].