1. Ms WZJZ must meet the access criteria in s 21(1) to become a participant of the NDIS. In summary, s 21(1) provides that a person meets the access criteria if they meet the age requirements in s 22; the residence requirements in s 23; and either the disability requirements in s 24 or the early intervention requirements in s 25.
2. There is no dispute between the parties, and the Tribunal is similarly satisfied, that Ms WZJZ meets the age and residence requirements in ss 22 and 23. The issue for determination by the Tribunal is whether Ms WZJZ meets the disability requirements in s 24 or the early intervention requirements in s 25.
3. Section 24 provides:

(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 the person has one or more impairments to which a psychosocial disability is attributable; and

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

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

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self‑care;

(vi) self‑management; 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.

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

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

(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

(ii) (has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or

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

(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and

(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

(i) (mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or

(ii) preventing the deterioration of such functional capacity; or

(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.

Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.

(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

(a) as part of a universal service obligation; or

(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

1. Under s 209(1) the Minister may make rules prescribing certain matters. Relevant to this application, the Minister has issued the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Access Rules), which forms part of the legislation.
2. Operational Guidelines published on the NDIS website contain information about what the Respondent considers when making decisions under the legislative framework. These are essentially policy documents. The Operational Guideline 'Applying to the NDIS' (Access Guideline) is relevant to this application. The Tribunal will take this into account unless there are cogent reasons not to.[10]

1. The parties filed with the Tribunal an agreed joint tender bundle which included the T-Documents filed by the Respondent in accordance with s 37 of the AAT Act, and evidence filed by Ms WZJZ and the Respondent during the review. The Respondent also filed a supplementary tender bundle. The agreed joint tender bundle and supplementary tender bundle were received into evidence at the commencement of the hearing, marked 'Exhibit 1' and 'Exhibit 2' respectively.
2. A hearing was held by Microsoft Teams on 31 March and 1 April 2025. Ms WZJZ, Ms WZJZ's husband (Mr WZJZ) and Mr TC gave oral evidence.
3. The Respondent filed a Statement of Facts, Issues and Contentions (Respondent's SFIC), and a Statement of Facts, Issues and Contentions in Reply (Respondent's Reply). Ms WZJZ filed documents in response to both the Respondent's SFIC and the Respondent's Reply. The parties also made oral submissions at the hearing.
4. The Tribunal has considered the written evidence, oral evidence, and submissions referred to above in paragraphs [12] to [14].

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

1. In National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), Mortimer J (as Her Honour then was) observed:

'What the legislative scheme focuses on is not the name of a person's disability, nor the diagnosis given to a person - but rather what are the impairments experienced by the person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the "functional capacity" of a person'.[11]

1. Consistent with s 24(1) and Mortimer J's observation of the legislative scheme as cited above in paragraph [17], the Tribunal must focus on Ms WZJZ's impairments, not her diagnosis or conditions, when considering whether she meets the disability requirements.

Does Ms WZJZ have a disability attributable to an impairment?

1. For the purposes of s 24(1)(a), the Tribunal must be satisfied that Ms WZJZ has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable.
2. The concept of 'impairment' is generally understood as involving the loss or damage to a physical, sensory or mental function.[12] The term 'disability' is used in s 24 as a descriptive concept for the overall effect of a person's impairments on that person's abilities to participate in all aspects of personal and community life.[13]
3. In an email to the Tribunal and the Respondent dated 29 May 2023, Ms WZJZ listed several 'conditions' on which she relies for access to the NDIS.[14] These included major depression, anxiety disorder (including panic disorder), pseudo seizures, agoraphobia, suicidal ideation, osteoarthritis, cervical spondylosis, diabetes, polycythaemia, obstructive sleep apnoea, gastroparesis, reflux oesophagitis, hiatus hernia and gastritis.[15]
4. At the hearing, Ms WZJZ informed the Tribunal that she does not rely on impairments related to gastroparesis, reflux oesophagitis, hiatus hernia, and gastritis for access to the NDIS.
5. The Respondent accepts Ms WZJZ has impairments to which a psychosocial disability is attributable resulting from major depression, anxiety disorder, agoraphobia, pseudo-seizures, and suicidal ideation.[16] They contend however that Ms WZJZ's agoraphobia, pseudo-seizures and suicidal ideation are 'comorbid impairments' related to her conditions of major depression and anxiety disorder.[17] The Respondent also accepts Ms WZJZ has a disability attributable to physical impairments resulting from osteoarthritis, cervical spondylitis, and type 2 diabetes.[18]
6. Dr DP, a consultant psychiatrist, has been Ms WZJZ's treating psychiatrist since April 2019.[19] There are a number of reports in evidence prepared by Dr DP.[20] In December 2019 Dr DP reported that Ms WZJZ has had a diagnosis of mixed anxiety and depressive disorder since 2007 which can be episodic and fluctuate over time; and that she experiences panic attacks, intermittent lethargy, low mood, reduced motivation, agoraphobia and pseudo seizures.[21] In November 2023, Dr DP reported the major impairments arising from Ms WZJZ's conditions include lack of motivation, cognitive restrictions, and restrictions in travelling and seeking medical and psychological help.[22]
7. Dr LS, a clinical psychologist, has been treating Ms WZJZ since February 2023.[23] Dr LS's clinical diagnosis of Ms WZJZ is mixed anxiety and depression.[24] Ms WZJZ reported to Dr LS that she experiences tiredness, flattened effect, reduced energy, difficulty focusing, forgetfulness, suicidal thoughts, and pseudo-seizures which contribute to her agoraphobia.[25] Dr LS reported that Ms WZJZ's pseudo seizures have a psychological origin.[26]
8. Dr VR, a general practitioner, has been treating Ms WZJZ since March 2022. Dr VR reports Ms WZJZ has been diagnosed with major depression, anxiety disorder, panic disorder and agoraphobia, which for her manifest as a lack of energy, reduced motivation, changes in appetite, impaired concentration and memory, low self-esteem, persistent fear and worry which results in agoraphobia, panic attacks, and suicidal ideation.[27]
9. Based on evidence referred to in paragraphs [24] to [26], the Tribunal is satisfied Ms WZJZ has one or more impairments to which a psychosocial disability is attributable, which include reduced motivation, low mood, lethargy, panic attacks, impaired concentration and memory, suicidal ideation, pseudo seizures, and agoraphobia (psychosocial impairments).
10. Ms WZJZ gave oral evidence that as a result of osteoarthritis and cervical spondylosis, she experiences widespread pain which limits her movement, stiffness in her neck and shoulders, weakness in her arms, and pins and needles in her hands. This is broadly consistent with what Ms WZJZ reported to Ms EC in 2022 and Mr TC in 2024, both of whom are occupational therapists.[28] In November 2023, Dr VR reported that Ms WZJZ has generalised osteoarthritis and has struggled with chronic pain and fatigue symptoms for a number of years.[29] Dr VR's evidence with respect to this is corroborated by various reports in evidence which span several years.[30] Based on this evidence, the Tribunal is satisfied Ms WZJZ has a disability that is attributable to physical impairments which include widespread pain that limits her movement, stiffness in her neck and shoulders, weakness in her arms, pins and needles in her hands, and lethargy (physical impairments).
11. Ms WZJZ gave oral evidence that she experiences a high cognitive load due to medication and food management associated with diabetes; worries about the risk of diabetic neuropathy; and as at the time of the hearing her diabetes was poorly controlled. In September 2023, Dr CS, a consultant endocrinologist reported that Ms WZJZ's glycaemic control had worsened, hypoglycaemia was mild, and there were no microvascular or macrovascular complications/symptoms.[31] In November 2023, Dr VR reported that Ms WZJZ has been diagnosed with type 2 diabetes; her diabetes control is suboptimal with high Hba1c; and this persisting high Hba1c is going to cause significant comorbidities in the future.[32]
12. The Tribunal accepts Ms WZJZ worries about the risks of diabetic neuropathy and that her diabetes control is suboptimal. However, it is unclear on the material before the Tribunal whether this manifests as or involves the loss or damage to a physical, sensory or mental function. The Tribunal is not persuaded on the material before it that it does, and therefore finds that Ms WZJZ does not have a disability that is attributable to any impairment arising from her poorly controlled diabetes.
13. With respect to sleep apnoea and polycythaemia, the Tribunal accepts Ms WZJZ's evidence that she uses, and will continue to use, a CPAP machine which manages her sleep apnoea, since using a CPAP machine her haematocrit and iron levels have returned to normal, and some literature suggests sleep apnoea is an underlying cause of polycythaemia.[33] On the material before it, the Tribunal is not persuaded that Ms WZJZ's sleep apnoea or polycythaemia result in any loss or damage to a physical, sensory or mental function. The Tribunal therefore finds Ms WZJZ does not have a disability that is attributable to any impairment arising from those.

Are Ms WZJZ's impairments, or are they likely to be, permanent?

1. For the purposes of s 24(1)(b), the Tribunal must be satisfied that Ms WZJZ's impairment or impairments are, or are likely to be, permanent. Within the context of s 24(1)(b), a permanent impairment is an impairment which is of an enduring nature.[34]
2. Rules 5.4 to 5.7 of the Access Rules provide that:

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

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

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

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

1. In Davis, Mortimer J confirmed that within the context of Rule 5.4, the word 'known' means a treatment which can be identified by an Australian medical professional as suitable for a person's particular impairment; the word 'appropriate' means a treatment which has a capacity to 'remedy' the impairment and is suitable for the particular individual to undergo; and the word 'available' means available to a particular individual.[35] The word 'remedy' in Rule 5.4 means something approaching a removal or cure.[36]

1. The Respondent accepts that Ms WZJZ has exhausted all known, appropriate and available treatments for her psychosocial impairments flowing from major depression and anxiety, and that her psychosocial impairments are therefore permanent.[37]
2. The evidence overwhelming establishes that Ms WZJZ's psychosocial impairments have been ongoing since at least 2005 or 2006.[38] Since that time, she has had in-patient hospital stays in 2005, 2019, 2020 and 2023; consulted with at least 3 psychiatrists; been under the care of Dr DP since 2019; been prescribed and generally compliant with taking oral medication; and attended extensive sessions with registered psychologists who have employed cognitive behavioural therapy and provided counselling and strategies to manage her psychosocial impairments.[39] Ms WZJZ's evidence as at February 2024, which the Tribunal accepts, is that she was being reviewed by Dr DP every 6 months, and attends psychology sessions every 4 to 6 weeks.[40] Dr LS reported she could not identify any further interventions as a psychologist that would be expected to bring further improvement or remedy Ms WZJZ's mental status.[41]
3. With respect to pseudo seizures, Dr KA, a neurologist, reported in August 2023 that these episodes are long-standing, non-progressive and no further evaluation would be required.[42] In November 2024, Dr C started Ms WZJZ on lamotrigine for her seizures with directions to gradually increase the dosage over 8 weeks; and organised to review her in January 2025.[43] Dr C makes no suggestion lamotrigine will remedy Ms WZJZ's pseudo seizures. When asked at the hearing about that review, Ms WZJZ gave evidence Dr C was just seeing how she was going on the new medication. Ms WZJZ gave oral evidence that despite that medication, she was still having 3 to 4 seizures each day.
4. There is no suggestion in evidence by any of Ms WZJZ's treating practitioners that there are any known, available and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy her psychosocial impairments.[44] Nor do they suggest that Ms WZJZ's psychosocial impairments require medical treatment and review before a determination can be made about whether those impairments are, or are likely to be permanent.[45] The Tribunal is satisfied Ms WZJZ's psychosocial impairments are, or are likely to be, permanent.[46] Accordingly, the requirement in s 24(1)(b) is met in relation to those.

1. The Respondent contends Ms WZJZ's comorbid physical 'conditions' are not permanent.[47] In summary, the Respondent submits Ms WZJZ is undergoing or will undergo further medical treatments in relation to those comorbid physical 'conditions' which demonstrate that those impairments have not been optimally treated and there are still known, available and appropriate treatments.[48] The Tribunal considers that it must focus on Ms WZJZ's physical 'impairments', not her comorbid physical 'conditions', when considering whether the requirement in s 24(1)(b) is met.
2. Ms WZJZ was involved in a motor vehicle accident in 1982, in which she sustained an injury to her neck.[49] In January 1983 her neck pain radiated to her arms, more on her left, and a myelogram revealed 4 cervical disc prolapses.[50] Ms WZJZ ceased working in mid-1983 due to pain.[51]
3. In 2002, Ms WZJZ was involved in a second motor vehicle accident in which she damaged her right wrist, and her ulnar nerve was cut.[52] This injury aggravated her neck injury.[53] In 2003, she sustained an injury to her right arm which led to a fracture of the radius bone and a metal plate was inserted, which was then removed in 2004.[54]
4. In 2005, Ms WZJZ's neck and wrist pain were exacerbated, and she was diagnosed with cervical spondylosis.[55] In a medical history recorded by Dr SD it was noted that Ms WZJZ was diagnosed with right ankle osteoarthritis/loose body/ganglion in 2005.[56] In December 2005, Dr MP, a neurologist, reported that Ms WZJZ had had a number of incidents where she had had time off work 'in the last few years' associated mainly with orthopaedic/overuse injuries.[57]
5. X-rays of Ms WZJZ's thoracic spine and lumbar spine were taken in 2012 and it was reported by Dr LS that there was thoracolumbar scoliosis convex to the right and anterior osteophytic spurring across the L2/3 level.[58] An x-ray of her right ankle was taken in April 2014 and it was reported by Dr LS that there was bony spurring at both the medial and lateral malleoli, a small well corticated density just inferior to the medial malleolus which probably reflects previous trauma, and degenerative changes over the dorsal aspect of the foot.[59] An ultrasound of her right ankle taken in July 2014 concluded Ms WZJZ had a ganglion at the distal anterior tibialis tendon; underlying moderate osteoarthritis of the tarsal joints; and chronic residual change to the deltoid at the medial aspect and the anterior talofibular ligament at the lateral aspect.[60]
6. In 2015 Ms WZJZ experienced what she described in oral evidence as the worst pain of her life. An MRI and an x-ray of the cervical spine were completed in July 2015.[61] It was reported that the MRI showed spondylotic change; minimal arthropathy between the lateral masses of C1 and body of C2; moderate left facet joint arthropathy of C2/3; mild bilateral uncovertebral joint and facet joint arthropathy of C3/4; mild to moderate end plate and bilateral uncovertebral joint arthropathy of C4/5; mild end plate and bilateral uncovertebral joint arthropathy and mild broad based disc bulge of C5/6; moderate end plate and bilateral uncovertebral joint arthropathy, broad based generalised posterior disc bulge causes mild central canal stenosis, more focal left paracentral to subarticular disc protrusion further narrows the left nerve root entry zone and potential left C7 nerve root irritation from this cannot be excluded.[62] With respect to the x-ray, it was reported that spondylotic change was noted throughout as on the MRI.[63]
7. In September 2015, Ms WZJZ was diagnosed with cervical spondylosis and left arm neuralgia and underwent cervical spine surgery specifically L C6/7 foraminotomy and C7 neurolysis.[64] Ms WZJZ's oral evidence, which the Tribunal accepts, is that the surgery relieved the pain but did not fix the spinal conditions, and she continues to experience residual pins and needles in her hands and weakness in her arms. This is consistent with Ms WZJZ's written evidence that she underwent surgery in 2015 to release an impacted nerve, and that surgery left her with residual numbness in the first, middle and ring fingers in her left hand.[65]
8. In April 2016, an ultrasound and an x-ray were taken of Ms WZJZ's right elbow.[66] Dr TL reported that there was mild lateral epicondylitis with common extensor origin tendinosis but no evidence of a tear; and an ultrasound guided injection could be considered for further management.[67] In October 2016, an ultrasound and an x-ray of Ms WZJZ's right wrist were taken to ascertain whether she had tendonitis or De Quervain's tenosynovitis.[68] Dr TL reported there was no osseous or sonographic abnormality to account for Ms WZJZ's symptoms, in particular there was no evidence of De Quervain's tenosynovitis in the wrist.[69] Also in October 2016, Ms WZJZ had an ultrasound guided injection for her right shoulder tendonitis/bursitis.[70] Ms WZJZ gave oral evidence that she had 2 guided injections for her right shoulder, and those fixed that issue.
9. In a NDIS Access Request Form completed by Dr VR on 27 September 2022, it was reported that Ms WZJZ lived with osteoarthritis that would require lifelong pain management.[71] In September 2023, Dr CS reported that Ms WZJZ had 3 doses of local steroid for left bursitis in 2023.[72] This is corroborated by reports in evidence prepared by Dr SF and Dr JM dated June and August 2023 regarding ultrasound guided injections into Ms WZJZ's left shoulder.[73] In September 2023, Dr CS reported that the doses of local steroids had not resolved Ms WZJZ's left shoulder issue, and she was considering seeking an orthopaedic opinion, as the underlying cause of the pain appears to be multifactorial.[74] Read in context, the Tribunal understands the opinion being sought related to pain in Ms WZJZ's left shoulder, rather than her widespread pain, and finds accordingly.
10. Ms WZJZ was referred for a further x-ray of her left shoulder in November 2023 due to chronic pain.[75] With respect to that, Dr MG reported moderate degenerative changes at the left glenohumeral and acromioclavicular joints.[76] On 15 November 2023, Dr MP diagnosed Ms WZJZ with a frozen shoulder, and recommended a glenohumeral joint injection under image guidance.[77] In January 2024, Ms WZJZ reported to Mr TC that she recently was provided with support from a restorative 8-week community program involving OT assessment and physiotherapy; she continues to have pain in her left shoulder with pins and needles; and was due to undergo an injection in her shoulder.[78]
11. In oral evidence, Ms WZJZ explained she had 3 guided injections into her left shoulder which did not fix it; she then saw a specialist who diagnosed her with a frozen shoulder and ordered an injection into the joint; the injection into the joint helped but did not fix her left shoulder. When asked in cross-examination whether she has spoken with doctors about whether there is anything else that can be done for her left shoulder, Ms WZJZ gave evidence her doctors have not said there is something she can do; and she thinks the best thing may be physiotherapy, but she does not have the motivation or financial capacity to do that.
12. In a statement filed in July 2024, Ms WZJZ stated she had surgery on her right foot to remove a ganglion and surgery on her right ulna to shorten it, but still has pain in her foot and right wrist and right elbow; and she experiences arthritic pain in her lower back, which travels down the outside of her legs and makes movement difficult.[79]
13. In late 2024, Ms WZJZ was referred to Dr C for a neurological review.[80] In November 2024, when recounting Ms WZJZ's broad medical history, Dr C noted she was recently diagnosed with mild carpal tunnel syndrome on nerve conduction studies by Dr K; had been using nocturnal carpal tunnel splints on both hands for the last 2 months; and those splints have been effective in the right hand, but the paraesthesia persists in the left hand. Dr C predominantly reported in relation to Ms WZJZ's seizures, however he did refer her for an MRI of her cervical spine.[81] He planned to review her again in January 2025.[82] When asked at the hearing about that review, Ms WZJZ gave evidence Dr C was checking how she was going on the new medication. The Tribunal accepts that evidence.
14. In oral evidence, Mr WZJZ stated Ms WZJZ had carpel tunnel surgery on her left wrist in January 2025 however her symptoms have persisted. With respect to carpel tunnel surgery, Ms WZJZ gave evidence she had surgery for that in January 2025; post-surgery she still has pins and needles in her fingers and has trouble lifting things; the neurosurgeon told her this may improve with time.
15. Ms WZJZ gave further evidence to the effect her doctors have not suggested there is anything else that can be done for her osteoarthritis; she thinks massage on her neck may relieve stiffness, however she cannot afford that. As at the time of hearing, Ms WZJZ's oral evidence is that movement is difficult and painful, and she experience stiffness in her neck and shoulders. The Tribunal generally accepts Ms WZJZ's evidence as referred to in paragraph [49] onwards, and notes this is broadly corroborated by the clinical evidence.
16. Dr VR has opined Ms WZJZ will require life-long pain management.[83] Dr SD has opined Ms WZJZ's osteoarthritis and spondylosis has endured for many years, is likely to be lifelong, and has been treated with medications and physiotherapy.[84] On the material as outlined above, the Tribunal accepts that is so.
17. The Respondent indicated in closing submissions it continued to rely on paragraph [46] of the Respondent's SFIC, and paragraph [18] of the Respondent's Reply. Paragraph [46] of the Respondent's SFIC pointed to evidence suggesting Ms WZJZ was undergoing treatment for her left shoulder and seeking an orthopaedic opinion.[85] Paragraph [18] of the Respondent's Reply is to the effect that no further medical opinion has been provided as to the outcome of the orthopaedic opinion sought the Ms WZJZ.
18. However, contrary to paragraph [18] in the Respondent's Reply, and noting Dr MP' letter in evidence dated 15 November 2023, the Tribunal accepts that Ms WZJZ was in fact reviewed by Dr MP in November 2023 who opined she had a frozen shoulder and recommended the glenohumeral joint injection.[86] The Tribunal also accepts Ms WZJZ's evidence that she had the glenohumeral joint injection recommended by Dr MP and that has not relieved her frozen shoulder.
19. In Davis it was noted that the correct meaning of 'permanent' in s 24(1)(b) is 'enduring'.[87] The Court went on to state:

The critical point is that 'permanent' is used as an adjective in s 24(1) to the noun 'impairment' (or in the plural, 'impairments'). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.[88]

1. It is clear on the material referred to above that several incidents and diagnosis or conditions have contributed to or caused Ms WZJZ's physical impairments over time, and the intensity of the physical impairments has to some extent fluctuated. However, with respect to the physical impairments themselves, the Tribunal is satisfied Ms WZJZ has experienced those for many years, and they have therefore an enduring quality.
2. The Respondent submitted in closing there is no evidence that can be referred to which suggests there are no further available treatments for the impairments which flow from osteoarthritis; and that a frozen shoulder and bursitis, as well as carpel tunnel syndrome, seem to have been lumped together broadly as osteoarthritis despite those having been dealt with quite separately. However, the Tribunal's reading of the evidence is that Ms WZJZ has generally complied with treatments recommended for her physical impairments, her physical impairments are enduring despite the treatments she has undergone, and there is no suggestion in evidence from her treating practitioners that there are any known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy her physical impairments. For these reasons, the Tribunal is satisfied there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy Ms WZJZ's physical impairments.[89]
3. The Tribunal acknowledges Ms WZJZ's evidence that her neurosurgeon told her the pins and needles in her fingers may improve with time following her carpel tunnel surgery. However given the extent and nature of Ms WZJZ's physical impairments, the Tribunal does not consider this means her physical impairments require review before a determination can be made about whether they are or are likely to be permanent. The Tribunal is similarly persuaded on the evidence before it that whilst Ms WZJZ's physical impairments will continue to be treated and reviewed so that they can be managed, that treatment and review is not required for the permanency or likely permanency of those physical impairments to be determined.[90]
4. Based on the Tribunal's findings [56] to [60], the Tribunal is satisfied that Ms WZJZ's physical impairments are, or are likely to be, permanent. Accordingly, the requirement in s 24(1)(b) is met in relation to those.
5. In circumstances where the Tribunal is satisfied that Ms WZJZ's psychosocial and physical impairments are, or are likely to be, permanent, those will hereafter be collectively referred to as her impairments.

Do Ms WZJZ's impairments result in substantially reduced functional capacity?

1. Section 24(1)(c) requires that Ms WZJZ's impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care and/or self-management.
2. Rule 5.8 of the Access Rules provides that:

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

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

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

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

1. The Tribunal must first consider whether Ms WZJZ's circumstances are within those set out in r 5.8 of the Access Rules. If they are, she will be deemed to have a substantially reduced functional capacity.[91] If they are not, the Tribunal must consider whether Ms WZJZ's functional capacity is nevertheless substantially reduced in any of the prescribed activities.[92]
2. The Access Guideline provides non-exclusive content to the range of tasks and actions that comprise each of the activities prescribed in s 24(1)(c).
3. When considering whether it is satisfied the requirement in s 24(1)(c) is met, the Tribunal must make a functional, practical assessment of what Ms WZJZ can and cannot do.[93] That assessment involves consideration of the full range of tasks or actions that comprise each of the prescribed activities.[94]
4. The Respondent contends Ms WZJZ's impairments do not result in substantially reduced functional capacity to undertake any of the prescribed activities.[95] Ms WZJZ broadly contends her impairments result in substantially reduced functional capacity to undertake each of the prescribed activities.

1. With respect to the activity of communication, the Access Guideline provides:

Communicating - how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.[96]

1. Dr SD reported that Ms WZJZ does not require any assistance to communicate.[97] Dr VR reported Ms WZJZ cannot communicate with strangers and prefers to listen than speak.[98] Dr LS stated Ms WZJZ has no reported issue with communication.[99]
2. Ms JG, a support coordinator, reported Ms WZJZ often misreads the meaning of conversations and the overall intentions of others because of her anxiety and depression.[100]
3. In oral evidence, Ms WZJZ stated she sometimes has a problem understanding verbal communication. During the hearing, the Tribunal was able to understand Ms WZJZ and she gave evidence relevant to the questions asked of her. Ms WZJZ prepared written statements which are in evidence.
4. Ms EC assessed Ms WZJZ in 2022.[101] Ms EC reported Ms WZJZ was easily understood throughout the assessment, can identify non-verbal cues and emotions in others with no issue, and feels understood by others.[102]
5. Mr TC assessed Ms WZJZ in 2024.[103] In response to the question 'Do you consider that the Applicant has any reduction in their functional capacity for communication?' Mr TC reported Ms WZJZ struggles to meet new people and engage in social interaction; because of anxiety and depression she avoids these situations; is socially isolated and has little interaction with people.[104]
6. The Tribunal accepts Ms WZJZ finds speaking with strangers difficult and will avoid having to do so. However, based on evidence referred to above, the Tribunal finds Ms WZJZ can speak and write to express herself, her communication can be understood by others, and whilst she may occasionally misread a conversation, she can generally understand people when they communicate with her. For these reasons, the Tribunal finds her circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied Ms WZJZ's impairments result in substantially reduced functional capacity to undertake the activity of communication.

1. The Access Guideline suggests the activity of social interaction is comprised of the following, non-exclusive content:

Socialising - how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.[105]

1. Ms WZJZ's evidence regarding social interaction is to the effect:

a) She attended sculpture classes on Mondays until late last year when her teacher retired. When she feels up to it, she attends an art group on Tuesdays which includes around 15 people. She interacts with those people and describes them as being 'art buddies' and 'like family', The art group, and the sculpture class until late last year, is a social interaction that feels safe and comfortable. She attends rock and roll dancing with Mr WZJZ; however, this is infrequent as they are often not up to it. She describes the rock and roll dancing as socially focused. > > b) Her father, sister and daughter live interstate. She speaks with them on the phone and tries to see them in-person once a year. She attempts to go with Mr WZJZ to see his father weekly. She and Mr WZJZ do not have a lot of friends and do not get visitors. She fears being a poor host. > > c) She hates small talk and avoids being involved in it. > > d) She struggles to manage her anxiety in public. She experienced a panic attack when she attended a funeral with lots of people in attendance. She chooses less crowded times if she needs to go shopping. Being agoraphobic, it is difficult to be motivated to leave the sanctuary of her home and this makes it difficult for her to interact with other people. She has anxiety at every medical visit. As at the time of the hearing, she did not feel confident going out and being with people.[106]

a) He drives Ms WZJZ to medical appointments and attends those appointments with her. If he cannot go with Ms WZJZ to an appointment, Ms WZJZ will sometimes still attend the appointment, whilst at other times she will not. They currently have a friend living with them who will sometimes take Ms WZJZ to appointments. > > b) Ms WZJZ can independently attend her art group, drive a short distance, and go to the pathologist for a blood test. She will sometimes go on her own to the pharmacy and the supermarket to pick a few things up. > > c) When they attend rock and roll dancing they will speak with people opposite them.[107]

3. Both Dr SD and Dr VR reported Ms WZJZ requires a companion to leave home.[108] Dr DP opined that Ms WZJZ's anxiety and heightened sensitivity can affect her relationships with people outside close family connections; and Dr LS opined Ms WZJZ has social anxiety in talking with unfamiliar people and adjusting to new situations, is reluctant to leave the house without assistance and does so only if necessary.[109]
4. Ms JG suggested Ms WZJZ is often overwhelmed in unfamiliar social settings, has trouble developing and maintaining friendships, and will often choose to remove herself from a social setting unless supported by another person.[110]
5. Ms EC recorded Ms WZJZ reported to her she is unable to attend places with crowds or engage in small talk; is apprehensive when meeting new people; will not attend unfamiliar or new settings independently; does not have friends she sees regularly; engages in creative arts groups weekly; and attempts to attend rock and roll dancing weekly.[111] Ms EC opined Ms WZJZ's anxiety impacts her ability to engage in the community, spend time with friends, and engage in groups or programs that are new and unfamiliar.[112]
6. In January 2024 Ms WZJZ reported to Mr TC she feels socially isolated, no longer attends sculpture classes and craft shows, and has longstanding friends she will arrange to meet every few months but does not have regular or frequent visitors.[113] Ms WZJZ also reported to Mr TC she struggled to sleep prior to meeting him, however Mr TC reported that during the course of the assessment, Ms WZJZ's ability to interact improved and she engaged more freely in conversation.[114] Mr TC opined Ms WZJZ struggles with social interaction and becomes anxious meeting new people; does not have the necessary skills to find new pathways for social activities and would be excessively anxious about attempting this; is able to interact with long-standing friends and family by telephone and face-to-face; needs support to commence conversations with new people and soft introductions to new groups.[115]
7. Based on the evidence referred to above, the Tribunal accepts Ms WZJZ finds it very difficult to engage with new people. However, Ms WZJZ attended sculpture classes until her teacher retired; attends an art group, albeit irregularly, and describes other attendees at that as 'like family'; will sometimes attend and speak with others at rock and roll dancing; speaks with family members on the phone; whilst those family members live interstate, spends time with them in-person approximately once a year; and has friends that she catches up with every few months. In these circumstances, the Tribunal finds Ms WZJZ can make and keep friends and can interact with the community.
8. The Tribunal accepts Ms WZJZ is reluctant to leave home without assistance from another person, finds unfamiliar and/or crowded places very difficult, and will avoid unfamiliar or crowded places. The Tribunal also accepts that Mr WZJZ will often accompany Ms WZJZ when she leaves home, particularly if she has a medical appointment.
9. However, Ms WZJZ independently attended sculpture classes until her teacher retired; gets herself to and from her art group and weekly psychology sessions; manages the social engagement that comes with being a part of an art group that has approximately 15 members; will sometimes attend medical appointments when Mr WZJZ cannot accompany her; and can attend a supermarket on her own to get basic items. On this basis, the Tribunal finds that Ms WZJZ can leave home independently, when necessary, albeit she finds this very difficult and would prefer not to. The Tribunal also finds she can usually cope with feelings and emotions in familiar social and community situations. In these circumstances, the Tribunal does not consider Ms WZJZ usually requires assistance from other people to participate in the activity of social interaction or to perform the tasks or actions required to undertake or participate in the activity of social interaction.[116]
10. Given the Tribunal's findings at paragraphs [83] to [85], the Tribunal finds Ms WZJZ's circumstances are not captured by those described in r 5.8 of the Access Rules. Whilst the Tribunal accepts that Ms WZJZ's impairments result in reduced functional capacity to undertake the activity of social interaction, the Tribunal is not satisfied that reduction is substantial. Accordingly, the Tribunal finds Ms WZJZ's impairments do not result in substantially reduced functional capacity to undertake the activity of social interaction.

1. The Access Guideline suggests the activity of learning is comprised of the following, non-exclusive content:

Learning - how you learn, understand and remember new things, and practise and use new skills.[117]

1. Dr SD reported Ms WZJZ does not need assistance with learning.[118] Dr VR reported Ms WZJZ needs a methodical, slow approach to understand information; and Dr LS reported Ms WZJZ's cognition and capacity to learn and practise new skills is impacted by her mental health issues.[119]
2. Ms JG opined Ms WZJZ is heavily reliant on her informal support network to act on her behalf for any activities that require high levels of memorisation.[120]
3. Ms EC recorded that Ms WZJZ reported to her she requires additional time to process a task before she can complete it and described herself as a kinaesthetic learner meaning she prefers to be involved in the task as a learning strategy.[121] Ms EC opined that once shown a few times Ms WZJZ can learn new things, and is able to follow a series of steps when following instructions.[122]
4. Mr TC opined Ms WZJZ has reduced concentration and attention, struggles to learn new activities or skills, and needs to read instructions multiple times.[123] Mr TC further opined that if engaging with a new activity, Ms WZJZ would require support over a period to ensure she fully understands what is required and it can be broken down into small components for her.[124] In oral evidence, Mr TC explained his opinion was based on his interactions with Ms WZJZ during his assessment, in that she at times needed things explained to her a couple of times or in a couple of ways, and she needed questions simplified; and at a point during the assessment her concentration was visibly reduced and she needed a period in the middle of the assessment to pause, after which her concentration improved.
5. Ms WZJZ indicated she gets stressed and anxious about assessment tasks and time limits, finds it difficult to sit to learn for more than 30 minutes, needs support to attend classes, and that organising equipment and dressing appropriately for classes causes her anxiety.[125] She contends that the fact she has not accessed further education since 2015 demonstrates her substantially reduced functional capacity to undertake the activity of learning.[126] However, within the context of s 24(1)(c), the activity of learning is considerably broader than what might take place within a formal learning environment.
6. Ms WZJZ gave oral evidence she has difficulty concentrating, keeping focus, and remembering things and this affects her being able to learn; and she needs to be shown how to do things several times before she can do them.
7. The Tribunal accepts Ms WZJZ's evidence, which is consistent with Ms EC's opinion, that if she is shown how to do things several times, she can do them; and she learns best by being involved in the completion of something that is new to her. The Tribunal also accepts Ms EC's and Mr TC's evidence that learning new activities or skills is difficult for Ms WZJZ; and she may need to read instructions several times, or have instructions broken down into steps, to follow them. But the Tribunal is persuaded that in those circumstances, she can understand and follow instructions. Whilst Ms WZJZ may need to learn new things and skills in a particular way, this may take some time, and she may find this difficult, the Tribunal is persuaded on the evidence that she can learn, understand and remember new things, and she can practise and use new skills.
8. Whilst Mr TC opined that if engaging in a new activity, Ms WZJZ would require support over a period to ensure she fully understands what is required and it can be broken into small components for her, the Tribunal does not accept this of itself means she usually requires assistance from other people to participate in the activity of learning or to perform tasks or actions required to undertake or participate in the activity of learning.
9. Given the Tribunal's findings at paragraphs [94] and [95], the Tribunal finds Ms WZJZ's circumstances are not captured by those described in r 5.8 of the Access Rules. Whilst the Tribunal accepts that Ms WZJZ's impairments result in reduced functional capacity to undertake the activity of learning, the Tribunal is not satisfied that reduction is substantial. Accordingly, the Tribunal finds Ms WZJZ's impairments do not result in substantially reduced functional capacity to undertake the activity of learning.

1. The Access Guideline suggests the activity of mobility is comprised of the following, non-exclusive content:

Mobility, or moving around - how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.[127]

1. In a document dated June 2023, Ms WZJZ stated she can walk around the block near her home with breaks, which is a distance of approximately 200 metres; can drive to locations within a 20 kilometre radius of her home and to locations she has previously been supported to drive to and knows the route; does not have a walker; had 3 falls between December 2022 and February 2023; and is helped by Mr WZJZ with her hair and to sometimes do up her bra.[128] In a document filed in July 2024, Ms WZJZ stated she had a further fall May 2024, which is the fourth fall she has had in total.[129] In oral evidence Ms WZJZ stated it is sometimes difficult for her to get in and out of her car, out of bed, and up from the couch; she cannot lift anything heavy; and she cannot bend down to garden. Ms WZJZ also gave evidence that whilst she can go for a walk, she rarely does because of her psychosocial impairments.
2. Mr WZJZ's evidence is that Ms WZJZ's physical impairments prevent her from independently dressing, washing and drying her hair, hanging washing, and carrying heavy items.[130] Mr WZJZ also gave oral evidence that Ms WZJZ independently gets herself to and from her weekly psychology sessions; will get herself to and from her art class when she feels up to attending; and can independently get to and from the shops to buy dog food, milk or bread.
3. Dr SD reported Ms WZJZ occasionally requires physical help with stairs.[131] Dr DP reported Ms WZJZ's mobility is restricted due to agoraphobia and depression and opined she will need transportation assistance for medical and other appointments; and Dr LS reported Ms WZJZ has difficulty walking due to pain and needs help from Mr WZJZ to dress and maintain her hair.[132]
4. Ms EC recorded that Ms WZJZ reported to her she can stiffen up after being seated for too long; has adequate balance and had nil falls in the preceding 12 months; is independent with all transfers inclusive of bed, lounge, shower, toilet, and car; had not recently walked a long distance but believes she could do it; has a driver's license and drives independently when required; prefers to travel short and familiar routes and with someone if she can; cannot bend and kneel to access garden beds; requires assistance from Mr WZJZ to wash and blow-dry her hair as she has difficulty lifting her arms above her head; requires assistance from Mr WZJZ with her bra clasp when she cannot reach behind her back; and requires assistance from Mr WZJZ to carry a basket of wet washing.[133] Ms EC reported Ms WZJZ is able to mobilise both indoors and outdoors without the use of aids or equipment.[134]
5. Mr TC observed Ms WZJZ transferring on and off a standard chair independently, walk around her home independently but slowly, occasionally furniture walk or lean on walls, walk with a shuffling gait, and fatigue quickly on minimal exertion.[135] Mr TC recorded that Ms WZJZ reported to him she can transfer in and out of bed independently, drive up to 30 minutes, lift up to 10 kilos occasionally, walk up to 350 metres before she needs to sit and rest, and climb a short flight of stairs.[136] Mr TC also recorded that Ms WZJZ reported to him she cannot carry a laundry basket, struggles to hang clothes on a washing line, struggles to physically manage cleaning tasks due to generalised weakness and reduced range of movement, and does not have the stamina or standing capacity to prepare dinner.[137]
6. Mr TC opined Ms WZJZ can mobilise fully in her home without the need for physical assistance or the use of any aids; walk short distances in the community but needs to take regular breaks; walk up to 350 metres before she needs to sit and rest, and needs to rest for about 5 minutes before she could resume her journey; climb up a short flight of stairs; drive for 30 minutes before needing a rest; and perform all transfers independently.[138]
7. It is consistent across the evidence, and the Tribunal finds, Ms WZJZ can perform all transfers independently, can mobilise fully in her home without the need for physical assistance or the use of any aids, and can independently drive up to 30 minutes or within a 20-kilometre radius of her home on familiar routes. Based on what Ms WZJZ reported to Mr TC, and Mr TC's opinion, the Tribunal finds Ms WZJZ can walk up to 350 metres in the community before she needs to rest; can climb a short flight of stairs if necessary; and can occasionally lift up to 10 kgs.
8. The Tribunal accepts Ms WZJZ's evidence, which has been consistent over time, that she has trouble lifting her arms over her head and reaching behind her back and cannot lift a basket of wet clothes. In those circumstances, the Tribunal accepts that Mr WZJZ assists Ms WZJZ wash and blow-dry her hair, do up her bra, and carry baskets of wet clothing. Whilst the Tribunal accepts Ms WZJZ will often not leave home unless accompanied, and prefers to only leave home accompanied, it finds that she can and does mobilise outside of the home independently. Given the very discreet nature of the assistance Mr WZJZ provides Ms WZJZ to mobilise at home, and the fact Ms WZJZ can and does mobilise outside of the home independently, the Tribunal does not consider she usually requires assistance from other people to participate in the activity of mobility or to perform tasks or actions required to undertake or participate in the activity of mobility.[139]
9. The Tribunal finds Ms WZJZ's circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied that any reduction in Ms WZJZ's functional capacity to undertake the activity of mobility is substantial. Accordingly, the Tribunal finds Ms WZJZ's impairments do not result in substantially reduced functional capacity to undertake the activity of mobility.

1. The Access Guideline suggests the activity of self-care is comprised of the following, non-exclusive content:

Self-care - personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.[140]

1. Ms WZJZ's written evidence is that each day she hopes her pain level is tolerable so she can successfully complete some household chores; she cannot vacuum or mop floors; she can assist with basic food preparation but cannot coordinate main meals; she can load items into the washing machine but cannot carry the laundry basket to the machine or hang out wet clothes; and Mr WZJZ assists with her hair, bra clasp, shopping, cooking and laundry.[141] In oral evidence Ms WZJZ confirmed she can load and unload the dishwasher, make a sandwich, and will sometimes make a meal in the slow cooker. She also gave evidence that as part of Mr WZJZ's NDIS plan, he is funded for domestic assistance which is used to engage a cleaner 2 hours each week to vacuum and mop, clean toilets and the kitchen.
2. Mr WZJZ gave evidence Ms WZJZ lacks motivation for self-care; and he cooks dinner, helps remove clothes from the washing machine and hang them.[142] With respect to his help removing clothes from the washing machine, Mr WZJZ explained this is because Ms WZJZ cannot reach clothes at the bottom of the washing machine due to her height, not her impairments.
3. Dr SD reported Ms WZJZ requires assistance from another person with dressing.[143] Dr VR reported that Ms WZJZ requires assistance from another person to do her hair and with dressing, and lacks motivation to attend to self-care.[144] Dr LS reported Ms WZJZ needs assistance to care for herself independently, is unable to manage household chores on her own due to physical limitations, and needs Mr WZJZ's help to dress and maintain her hair.[145] Ms JG reported that Ms WZJZ has been known to neglect elements of self-care.[146]
4. Ms WZJZ reported to Ms EC she can independently shower (excluding hair washing), dry herself (excluding blow-drying her hair), dress (excluding her bra clasp), toilet, feed herself, complete laundry tasks (excluding carrying heavy baskets of wet clothing), make her own lunch and simple meals such as a sandwich or hot drink, and complete a very small shop.[147] Ms WZJZ further reported to Ms EC that she had trouble vacuuming for sustained periods, cannot mop, and has difficulty maintaining her home when she is feeling depressed and overwhelmed and will not engage in this task.[148] Ms EC recommended Ms WZJZ would benefit from receiving cleaning services to assist with maintaining a clean home.[149]
5. Ms WZJZ reported to Mr TC that she is independent with dressing and undressing, daily grooming (although Mr WZJZ assists with her hair), eating and drinking, toileting and personal hygiene, and can load the washing machine and put clothes on hangers to dry.[150] Mr TC observed Ms WZJZ make a light meal and sandwich independently and that she fatigued quickly during this task.[151] Mr TC opined Ms WZJZ is able to perform all self-care activities independently, however she performs those tasks slowly and needs to rest at times; and she struggles to motivate herself to shower at times and needs prompting.[152]
6. Having considered the material before it, the Tribunal finds as follows:

a) Ms WZJZ requires assistance to wash and blow-dry her hair and to do up her bra clasp, but can otherwise shower, groom and dress independently. She can dry herself and toilet independently. On occasion, she relies on Mr WZJZ to prompt her to shower. > > b) Ms WZJZ can eat and drink independently. With respect to meal preparation, she can prepare a light meal and make herself a drink. The Tribunal accepts that Mr WZJZ usually prepares the evening meal, and that Ms WZJZ can find cooking a main meal overwhelming. However, based on Ms WZJZ's evidence that she can and does sometimes prepare a main meal in the slow cooker, the Tribunal finds her capacity to prepare a main meal that is not complex fluctuates - sometimes she can do this, sometimes she cannot. > > c) Ms WZJZ can complete light laundry and hang clothes on hangers to dry. However, she cannot carry a basket of wet clothes or hang clothes on a clothesline. > > d) Ms WZJZ cannot complete heavy cleaning tasks. Whilst she can complete light cleaning tasks, whether she does do this and the difficulty she may have doing this fluctuates given the nature of her impairments. > > e) Whilst Ms WZJZ does sometimes lack motivation to attend to self-care, she generally manages to shower, groom, dress, eat, and wash her clothes.

7. Whilst the Tribunal accepts that Ms WZJZ requires assistance from Mr WZJZ to do her hair, do up her bra, and to sometimes prepare dinner and prompt her to shower, it considers these are only a discreet component of the range of tasks or actions that comprise the activity of self-care. For this reason, the Tribunal finds Ms WZJZ does not usually require assistance from other people to participate in the activity of self-care or to perform tasks or actions required to undertake or participate in the activity of self-care.
8. The Tribunal finds Ms WZJZ's circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied that any reduction in Ms WZJZ's functional capacity to undertake the activity of self-care is substantial. Accordingly, the Tribunal finds Ms WZJZ's impairments do not result in substantially reduced functional capacity to undertake the activity of self-care.

1. With respect to the activity of self-management, the Access Guideline provides:

Self-management (if older than 6) - how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-today tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.[153]

1. Ms WZJZ's evidence regarding self-management is to the effect:

a) Making decisions is difficult and can cause panic attacks. Sometimes it takes her a long time to decide. Automatic type decisions are alright, however ones that involve planning and thinking about how to do something are difficult. > > b) She has difficulty concentrating and keeping focus on tasks. > > c) If she is looking for something and cannot find it within 10 minutes, she will have a panic attack. She wants to reorganise the house so that things are easier to find but lacks the motivation and energy to do this. > > d) She and Mr WZJZ struggle with the cost of living. Mr WZJZ was not paying bills due to anxiety, and when several overdue notices arrived, he pushed that task to her. She had to ask for extensions when they could not pay their bills. She pays most of their bills on-line, but it is a difficult and draining process for her. This would be easy if she and Mr WZJZ had more income. > > e) Completing forms causes intense anxiety for both she and Mr WZJZ, they often become anxious, need to leave the task, and return to it later. > > f) Mr WZJZ monitors her medication intake, helps work out how much insulin to take, and reminds her to take her blood sugar levels and insulin.[154] When asked in cross-examination whether a reminder on her phone or the like may help to prompt her to take her medication and check her blood sugar levels, she said she did not know if that would work, she would need someone to show her how to do that, 'I don't know until I've tried'. > > g) She prompts Mr WZJZ to take his medication and for personal hygiene and grooming. > > h) She and Mr WZJZ have been married for 47 years so there is a lot of invisible communication and understanding between them. They can pre-empt what the other one is going to need.

a) He prompts Ms WZJZ to take her medication, perform regular BSL testing, and calculate appropriate insulin doses. She does not require prompting in the mornings regarding medication as she has an established routine. > > b) Ms WZJZ has great difficulty dealing with household management tasks such as finances, organisation and decision making.[155] He previously looked after the finances; however, it made him very anxious and eventually Ms WZJZ began looking after the finances. That continued for some time. Since COVID, they tend to deal with the finances together. > > c) Sometimes Ms WZJZ will ask for help to problem solve, such as when she is reading a sewing pattern, and he will help with that. Sometimes if he does not have an answer for Ms WZJZ's question, she will sleep on it, and often the next morning she will come up with her own solution. > > d) Ms WZJZ prompts him to take medication and make important phone calls. He finds clothes shopping very stressful, so he makes sure he has Ms WZJZ with him when he does that and she helps select items, make decisions about what he needs and how much money they have to spend. He is an amateur musician, and when he is getting ready to go out and perform, Ms WZJZ will ask whether he has remembered items.

3. Dr SD reported Ms WZJZ requires assistance from Mr WZJZ with self-management, however provided no further particulars.[156] Dr VR reported Ms WZJZ requires help with organising and managing finances, has problem solving difficulties, and difficulty making decisions as she has panic attacks.[157] Dr LS reported Ms WZJZ needs help with medication management, planning daily activities, problem solving, and managing money.[158]
4. Ms JG opined Ms WZJZ's disability detrimentally impacts her capacity to make logical and prompt decisions regarding aspects of financial management, completion of daily tasks, problem solving, and overall cognitive processes.[159] She reported Mr WZJZ is often left to make decisions independently regarding important shared aspects of their life.[160] It is unclear on the face of Ms JG's report what informed her opinion. Nor is Ms JG's qualification, other than that she is a support coordinator, clear.
5. Ms EC recorded that Ms WZJZ reported to her:

a) Her memory can be poor, and she can forget things easily such as appointments and where she has placed items. Mr WZJZ will remind her about appointments, and she relies on SMS reminders sent by her GP as a prompt for appointments. She uses an application on her phone to create reminders for other appointments and meetings. > > b) Whilst Mr WZJZ manages her prescriptions, she is independent with medication management. She is independent in creating and managing her own medical appointments. > > c) She experiences significant panic and anxiety when required to make decisions; and extreme difficulty following a diabetic diet and knowing what she can and cannot eat. > > d) She cannot manage her finances as she has panic attacks when she looks at bills, due to being in a low-income bracket. Finances and financial tasks cause her significant stress and anxiety. She therefore does not engage in any financial tasks or decisions, and these are completed by Mr WZJZ.[161]

6. Ms EC reported that Ms WZJZ demonstrated a good level of insight into her diagnosis and the impact it has on her engagement in daily life.[162] She opined that due to Ms WZJZ's anxiety, difficulty with problem solving, financial tasks and decision-making, it is clinically evident she would be unable to independently manage a NDIS plan, and recommended funding for support coordination.[163]
7. Relevant to Ms WZJZ's functional capacity to undertake the activity of self-management, Mr TC reported:

a) She is able to independently make all personal decisions. > > b) She struggles to maintain the level of paperwork which she is required to. She stated that she struggles to keep on top of bills due and medical appointments. > > c) She is able to make appointments; however, at times she struggles to remember what she needs to book and struggles to motivate herself to arrange these. > > d) She demonstrated good insight. > > e) She demonstrated her use of a Webster pack for managing medication, has a separate fridge to store multiple medications, and was independent with medication management. > > f) She is limited in motivation and self-direction, secondary to major depression and anxiety. Her difficulty with self-management is attributable to her depression and anxiety.[164]

8. Mr TC recommended the provision of a support worker for 2 hours per month to help Ms WZJZ work through required paperwork and ensure she is booking and recording any appointments due.[165]
9. With respect to self-management, Ms EC's report largely records what was reported to her by Ms WZJZ. Whilst Ms EC did complete the WHODAS 2.0 and Kessler Psychologist Distress Scale during her assessment, these are both self-report questionnaires. Ms EC makes no mention of having had access to any objective clinical information to supplement Ms WZJZ's self-reporting; and it is unclear the extent to which she performed her own observations and investigations relevant to Ms WZJZ's functional capacity to undertake the range of tasks that comprise the activity of self-management, before forming any opinion and making recommendations. For this reason, to the extent Ms EC's assessment and opinion of Ms WZJZ's capacity to undertake the range of tasks that comprise the activity of self-management differ from those of Mr TC, the Tribunal has preferred and given more weight to Mr TC's evidence.
10. The Tribunal accepts Ms WZJZ's evidence that she can pay bills online and manage finances, albeit that she finds this stressful due to limited financial means. This is corroborated by Mr WZJZ's evidence, including that when they go shopping for his clothing it is Ms WZJZ who knows how much money they can spend. The Tribunal accepts Ms WZJZ finds decision-making difficult and it can take her a long time to make decisions, however the Tribunal is persuaded by Mr TC's evidence that she can independently make decisions and finds accordingly.
11. The Tribunal accepts that Mr WZJZ prompts Ms WZJZ to check her blood sugar levels and helps her to work out insulin dosages. The Tribunal also accepts Mr WZJZ's evidence that Ms WZJZ does not require prompting in relation to her medication in the morning because she has a good routine around that. That, together with Mr TC's evidence that Ms WZJZ demonstrated her use of a Webster pack for managing medication and was independent with mediation management, persuades the Tribunal that except for her diabetes management for which she will sometimes require Mr WZJZ's assistance, Ms WZJZ can manage her medication, albeit that this is challenging and requires a strict routine. The Tribunal finds accordingly.
12. The Tribunal finds Ms WZJZ can and does schedule her own appointments and will also prompt Mr WZJZ to schedule his appointments. The Tribunal accepts Ms WZJZ's evidence that by using reminders on her phone, she can remember appointments and meetings.
13. Dr VR, Ms EC, Ms WZJZ and Mr WZJZ gave evidence that Ms WZJZ has difficulty problem-solving, and the Tribunal accepts this is so. The Tribunal accepts Ms WZJZ will sometimes seek assistance from Mr WZJZ to problem-solve. However, the Tribunal notes Mr WZJZ's evidence that often when problem solving Ms WZJZ with 'sleep on it' and come up with her own solution. Whilst problem-solving is difficult for Ms WZJZ, the Tribunal finds she can do it, albeit slowly.
14. Whilst the Tribunal has accepted that Ms WZJZ will sometimes require Mr WZJZ's assistance with her diabetes management, it considers this is only a discreet component of a particular task that comprises the activity of self-management. For this reason, the Tribunal finds Ms WZJZ does not usually require assistance from other people to participate in the activity of self-management or to perform the tasks or actions required to undertake or participate in the activity of self-management.
15. The Tribunal finds Ms WZJZ's circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied that any reduction in Ms WZJZ's functional capacity to undertake the activity of self-management is substantial. Accordingly, the Tribunal finds Ms WZJZ's impairments do not result in substantially reduced functional capacity to undertake the activity of self-management.
16. In circumstances where the Tribunal has found Ms WZJZ's impairments do not result in substantially reduced functional capacity to undertake any of the activities prescribed in s 24(1)(c), the Tribunal finds the requirement in s 24(1)(c) is not met. It follows that Ms WZJZ does not meet the disability requirements in s 24.

Does Ms WZJZ meet the early intervention requirements?

1. For the reasons outlined above in relation to ss 24(1)(a) and 24(1)(b), the Tribunal accepts that Ms WZJZ has one or more physical impairments that are, or are likely to be, permanent; and one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be permanent. Accordingly, the requirement in s 25(1)(a) is met.
2. Section 25(1)(b) requires that the Tribunal is satisfied that provision of early intervention supports for Ms WZJZ is likely to benefit her by reducing her future needs for supports in relation to disability. Rule 6.9 of the Access Rules provides that in deciding whether provision of early intervention supports is likely to benefit Ms WZJZ in that way, it is expected the Tribunal will consider:

a) the likely trajectory and impact of her impairments over time. > > b) the potential benefits of early intervention on the impact of the impairments on her functional capacity and in reducing her future needs for supports. > > c) evidence from a range of sources, such as information provided by her or her family members or carers.

3. The evidence overwhelming establishes that Ms WZJZ's impairments have endured over many years. Despite having undergone a range of treatments, her impairments have persisted and continue to impact her functional capacity. Given the longstanding nature of Ms WZJZ's impairments, and their impact on her functional capacity, the Tribunal is not persuaded that the likely trajectory and impact of her impairments will be altered or improved if she is provided with early intervention supports.
4. When completing an Access Request form in September 2022, Dr VR ticked 'yes' to the question 'Are Early Intervention supports likely to reduce the applicant's future support needs?'.[166] Interventions recommended by Dr VR included physiotherapy, massage, dietitian, hydrotherapy, and psychotherapy.[167] The form asked the doctor to indicate the duration and expected result of interventions, to which Dr VR responded they would be long-term and will help improve her quality of life.[168] That duration does not suggest the recommended supports are early interventions. Whilst the Tribunal accepts the supports recommended by Dr VR would help improve Ms WZJZ's quality of life, that does not mean they would reduce her future needs for supports.
5. The supports recommended by Ms EC include support worker assistance, support coordination, occupational therapy, psychology, physiotherapy and a dietitian.[169] The supports recommended by Mr TC include support worker assistance and an occupational therapy assessment.[170] Neither Ms EC nor Mr TC suggest that by providing Ms WZJZ with those supports now, her future needs for supports will be reduced. The Tribunal is not persuaded on the material before it that by providing Ms WZJZ early intervention supports the impact of her impairments on her functional capacity will be such that her future needs for supports will be reduced. The Tribunal finds accordingly.
6. For the above reasons, the Tribunal is not satisfied the provision of early intervention supports for Ms WZJZ is likely to benefit her by reducing her future needs for supports in relation to disability, and the requirement in s 25(1)(b) is not met. It follows that Ms WZJZ does not meet the early intervention requirements in s 25.
7. In circumstances where Ms WZJZ does not meet the disability requirements in s 24 or the early intervention requirements in s 25, she does not meet the access criteria to become a participant of the NDIS.

1. The Tribunal affirms the decision under review.

[7] All sections referred to in this Statement of Reasons, including in the footnotes, are sections in the National Disability Insurance Scheme Act 2013 (NDIS Act) unless otherwise stated.

[8] s 8 of the Administrative Review Tribunal Act 2024.

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

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

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

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

[16] Respondent's Statement of Facts, Issues and Contentions (Respondent's SFIC), [29]; Respondent's Statement of Facts, Issues and Contentions in Reply (Respondent's Reply), [10].

[17] Respondent's SFIC, [30]; Respondent's Reply, [11]; Respondent's closing submissions.

[18] Respondent's Reply, [12]; Respondent's closing submissions.

[30] E2, 64, 65, 66, 67, 88, 93,182, 298-299, 301, 304, 324.

[37] Respondent's SFIC, [33]-[44]; Respondent's Reply, [15].

[39] E1, 48, 52, 54, 61, 62, 69, 71, 154, 83, 74, 77-79, 82, 83, 97, 100, 102, 104, 105, 156, 172, 293, 296, 329-330.

[47] Respondent's SFIC, [46], [51]; Respondent's Reply, [20]; Respondent's closing submissions.

[48] Respondent's SFIC, [46], [51]; Respondent's Reply, [18], [20]; Respondent's closing submissions.

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

[95] Respondent's SFIC, [65], [70], [76], [80], [84], [88]; Respondent's Reply. [30], [35], [39], [42], [46], [49]; Respondent's closing submissions.

[106] E1, 176, 177; 288, 289, 292, 358, 359, 360, 369; Ms WZJZ's oral evidence.

[107] E1, 333, 334; Mr WZJZ's oral evidence.

[154] E1, 175, 177, 291, 362, 364; Ms WZJZ's oral evidence.

[155] E1, 333, 334; Mr WZJZ's oral evidence.