1. Ms Harding 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.[9]
2. There is no dispute between the parties, and the Tribunal is similarly satisfied on the evidence before it, that Ms Harding meets the age and residence requirements in ss 22 and 23. The issue for determination by the Tribunal is therefore whether the Ms Harding 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 form 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 hearing bundle, which included the T-Documents filed by the Respondent on 1 June 2023 in accordance with s 37 of the AAT Act, and evidence filed by Ms Harding and the Respondent during the review. The agreed joint hearing bundle was received into evidence at the commencement of the hearing, marked 'Exhibit 1'.
2. A hearing was held by Microsoft Teams on 3, 4, 5 and 11 March 2025. Ms Harding, Dr Stephen Windley (Dr Windley), and Mr Glenn Dwyer (Mr Dwyer) gave oral evidence.
3. The Respondent filed a Statement of Facts, Issues and Contentions (Respondent's SFIC) on 22 November 2024. Ms Harding, who was not legally represented, did not file any submissions in reply. Both parties made closing submissions at the hearing.
4. The Tribunal has considered the written evidence, oral evidence, and submissions referred to above in paragraphs [12] to [14].
5. At times during the hearing, Ms Harding had difficulty speaking and her breathing was laboured. To meaningfully participate in the hearing within the limits of her symptomology, Ms Harding required very regular adjournments of varying lengths. By mid-morning on day 3 of the hearing, which was to be the final day of the hearing, the Tribunal became concerned Ms Harding was unable to meaningfully participate in the hearing any further on that occasion, irrespective of what reasonable adjustments were made. Ms Harding concurred with this assessment, and the hearing was therefore adjourned until the following week, at which time the hearing was concluded.

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

Does Ms Harding meet the disability requirements?

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 [18], the Tribunal must focus on Ms Harding's impairments, not her diagnosis or conditions, when considering whether she meets the disability requirements.

Does Ms Harding have a disability attributable to an impairment?

1. For the purposes of s 24(1)(a), the Tribunal must be satisfied that Ms Harding 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. 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]
2. Prior to the hearing, Ms Harding confirmed she does not rely on impairments arising from post-traumatic stress disorder (PTSD), major depressive disorder, generalised anxiety disorder, acquired brain injury and osteoarthritis.
3. It is not in contest between the parties that Ms Harding has a disability attributable to physical and sensory impairments.[14] On the evidence before it and the facts as the Tribunal has found them to be - both of which are detailed below - the Tribunal is similarly satisfied of this. Accordingly, the requirement in s 24(1)(a) is met.

Are Ms Harding'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 Harding'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.[15]
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.[16] The word 'remedy' in Rule 5.4 means something approaching a removal or cure.[17]
2. The Respondent does not accept that Ms Harding's impairments are, or are likely to be, permanent.[18] The Respondent contends:

a) The Tribunal cannot be satisfied that Ms Harding's impairments attributable to myasthenia gravis are permanent in circumstances where Ms Harding has been treated with a thymectomy and the expected recovery period has not elapsed so as to identify the extent of any improvement following treatment.[19] > > b) Given the potential overlap in the impairments experienced by Ms Harding with respect to her conditions of fibromyalgia and myasthenia gravis, it is premature to assess the permanency of Ms Harding's fibromyalgia prior to the outcome of her thymectomy being known.[20] > > c) With respect to the physical and sensory impairments attributable to either or both Ms Harding's fibromyalgia and myasthenia gravis, there is insufficient evidence for the Tribunal to be positively satisfied that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy Ms Harding's impairments.[21]

3. Following a motor vehicle accident in December 2015, Ms Harding was reviewed by Dr Robert Cooke (Dr Cooke), a senior consultant orthopaedic surgeon.[22] In January 2017, Dr Cooke reported Ms Harding's diagnosis as closed head injury resulting in concussion and mild brain injury; myofascial contraction injury; multi-axial traction, hyperflexion, hyperextension and rotational musculoligamentous and soft tissue injuries to the cervical spine; hyperflexion/hyperextension musculoligamentous injuries to lumbosacral spine; and secondary PTSD with anxious and depressed mood.[23] Dr Cooke reported that Ms Harding experiences neck, spine and upper limb pain, and that her physical injuries result in muscle guarding and spasm with loss of movement.[24] He opined there was at that time no indication for any form of surgical intervention.[25]
4. In February 2017, Ms Harding was reviewed by Dr Andrew Byth (Dr Byth), a psychiatrist. With respect to Ms Harding's physical symptoms, Dr Byth reported she continued to complain of pain in her lower back and thoracic spine, with shooting pain radiating down her left hip and left leg.[26] Dr Byth also reported that in her early 20s Ms Harding developed chronic fatigue syndrome and fibromyalgia, from which she gradually recovered over 2 years.[27] Whilst not entirely clear, it appears this was reported to Dr Byth by Ms Harding.
5. In April 2017, Rebecca Hague (Ms Hague), an occupational therapist reported that since December 2015 Ms Harding had been prescribed a range of medication (including Panadeine Forte, Voltaren, Panadol Osteo and Nurofen), had medical imaging, attended physiotherapy, chiropractics, remedial massage and psychology sessions, and attended the Axis Functional Rehabilitation Program (Axis).[28] Despite medical and rehabilitation efforts, Ms Hague reported Ms Harding's pain experience continued.[29] Ms Hague reported that Ms Harding's pain impacted her capacity to engage in employment, household activities and aspects of self-care.[30]
6. Ms Harding's attendance at Axis between 23 August 2016 and 3 November 2016 was confirmed by Sarah Walsh (Ms Walsh), a psychologist engaged as a pain and injury consultant at Axis.[31] Axis was a multidisciplinary program that provided education regarding pain processing and neurophysiology, graduated progression and pacing up of appropriate exercises and activities, improvement of functional tolerances and work capabilities, encouragement of good manual handling skills and postural awareness, explanation of physical, cognitive and emotional factors that affect pain, and self-management of all exercises and activities and their progression going forward.[32] Axis also provided education about the psychological component of pain and Ms Harding was taught cognitive behavioural and mindfulness-based strategies to assist her with pain management.[33]
7. In April 2022, Dr Tore Eivers (Dr Eivers), a general practitioner reported that Ms Harding rates highly on the American College of Rheumatology diagnostic criteria for fibromyalgia; this was first diagnosed when she was a teenager; she has tried various drug treatments that have been either ineffective or have intolerable side effects; a spinal surgeon deemed her injures unsuitable for surgical intervention; and she has been through physiotherapy and rehabilitation programs.[34] Dr Eivers reported that central and peripheral sensitisation is a key feature of fibromyalgia, and that he had been providing supportive treatment with perineural injection therapy and trigger point injections to reduce neural and muscular sensitivity.[35] He opined such treatments were helping Ms Harding to cope with her symptoms but do not have a curative intent.[36]
8. In 2023, Ms Gwenn Tasker (Ms Tasker), an occupational therapist reported that Ms Harding was diagnosed with fibromyalgia in 2019.[37] It is unclear from Ms Tasker's report whether this was reported to her by Ms Harding or taken from medical reports reviewed by Ms Tasker. Ms Tasker reported that Ms Harding was not managing a range of daily tasks, and that pain, extreme muscle weakness and fatigue contributed to this.[38]
9. Dr Windley has been Ms Harding's treating general practitioner since March 2019.[39] Dr Windley's evidence is that Ms Harding's diagnosis of fibromyalgia predates his involvement with her.[40] In July 2024, Dr Windley reported that Ms Harding experiences chronic pain secondary to fibromyalgia; and that chronic back pain, muscle spasm, and nerve pain have all been managed with basic cares (massage, liniments, hot and cold packs), physical therapy, home exercise programs, analgesics, muscle relaxants, anti-inflammatories, nerve agents (amitriptyline), and a SNRI (duloxetine).[41] At that time, Dr Windley reported that Ms Harding had been fully compliant with therapy to date, and opined her impairments had been optimally treated and there was no other evidence-based treatment available.[42]
10. In oral evidence, Dr Windley explained Ms Harding's fibromyalgia presents as sharp pains and reduced function, but that it was not excessively limiting in function. His oral evidence regarding what treatment for this has comprised since 2019 was generally consistent with his written evidence; and he opined that the treatments he has prescribed have covered the range of things available within Australia. Dr Windley gave oral evidence he has not referred Ms Harding to a rheumatologist in relation to fibromyalgia. He conceded in oral evidence that it would be a rheumatologist who would be most reliably aware of any new treatments for fibromyalgia.
11. Ms Harding's oral evidence was to the effect that she has daily pain, and very big flares involving extreme pain, that come with her fibromyalgia, and this limits her capacity to do things. In oral evidence Ms Harding opined her fibromyalgia also impacts her energy resources.
12. Dr Windley's evidence is to the effect that since 2021, Ms Harding's overarching primary diagnosis has been myasthenia gravis and the effects of that.[43] In December 2020, following 2 weeks of significant lethargy and 2 to 3 months of myalgias and arthralgias, especially in her hands and feet, Dr Windley ordered pathology testing.[44] Those results included a positive acetylcholine receptor (AChR) antibody.[45] In February 2021, Dr Windley referred Ms Harding to Associate Professor Stefan Blum (Associate Professor Blum), a consultant neurologist.[46] In a letter to Dr Windley dated May 2021, Associate Professor Blum opined Ms Harding is likely suffering from AChR antibody positive myasthenia gravis.[47] Associate Professor Blum reported:

'Her symptoms, which are likely attributable to myasthenia, started in November 2020. She had worsening of tiredness and fatigue. She found that she had more difficulties with swallowing and was choking at times. She had difficulties with chewing solid food and had to change her diet on occasion. She also feels that her voice is more croaky at times. She has difficulties hanging up the washing and some weakness in her arms more than her legs. She has diplopia and blurred vision with tiredness on occasion, but denies ptosis'.[48]

1. Associate Professor Blum commenced therapy with mestinon 60 mg 3 times daily and prednisone 5 mg daily as initial therapy for myasthenia gravis, and indicated he planned to review Ms Harding again in 1 month for further follow up and to discuss long term treatment of her condition.[49] Associate Professor Blum also reported that Ms Harding's medical history is of neuropathic pain after a motor vehicle accident in 2015, and she has been diagnosed with fibromyalgia.[50]
2. Ms Harding has been attending the Neuroimmunology Clinic at Princess Alexandra Hospital since May 2021, overseen by Associate Professor Blum.[51] In later reports prepared by Associate Professor Blum, he confirms Ms Harding was diagnosed with myasthenia gravis in 2021 based on a typical clinical presentation, positive AChR antibody blood tests, and a beneficial response to mestinon which is regarded as both a treatment and a diagnostic test.[52] He also confirmed that since that time, Ms Harding has been treated with a number of immunotherapies for myasthenia gravis, including prednisolone, IVIg, rituximab and mycophenolate.[53]
3. In January 2023, Ms Harding was reviewed by Dr Liora Ter Horst (Dr Ter Horst), a consultant neurologist, who reported that Ms Harding had commenced on IVIg, her response to that was very good, mainly on her bladder problems, and that she has symptom relief for 2 weeks after her IVIg but after this, she experiences severe problems breathing, bladder problems and problems with talking.[54] Dr Ter Horst further reported that physical examination showed severe symptoms of her myasthenia gravis, mainly weakness of her limbs and neck, problems with breathing at rest, blurred vision with drooping eyelids, and constant slurring whilst talking.[55]
4. In July 2024, Dr Windley reported that Ms Harding experiences excessive fatigue, muscle weakness and altered sensation secondary to myasthenia gravis, resulting in difficulty eating, drinking, breathing and urinary incontinence.[56] He further reported that myasthenia gravis management has consisted of prednisolone, pyridostigmine and mycophenolate from May 2021, IVIg and rituximab therapies from June 2022, and a thymectomy in January 2024.[57]
5. On 9 January 2024, Ms Harding underwent a transsternal thymectomy for myasthenia gravis.[58] The surgical procedure was complicated by dysphonia and left vocal cord palsy which required follow up and treatment by an ENT.[59] Ms Harding attended a rehabilitation program following her total thymectomy, which included occupational therapy, physiotherapy and speech pathology.[60] Ms Harding was discharged from that rehabilitation program around May 2024 and it was recommended she have a GP initiated referral to access a Chronic Disease Management Plan (CDMP) for ongoing occupational therapy, PT and psychology input.[61] In oral evidence, Dr Windley confirmed that Ms Harding's most recent CDMP was competed on 30 August 2024 and was utilised for a dietitian. Associate Professor Blum opined he would regard early intervention supports to be helpful for Ms Harding, in particular physiotherapy and speech therapy, and to a lesser degree occupational therapy.[62] Dr Windley gave oral evidence that allied health practitioners usually charge a fee in excess of that covered by Medicare for services delivered under a CDMP. Ms Harding's oral evidence was to the effect that as she is a single mother with 3 children and is reliant on a Centrelink payment, she cannot afford to pay gaps associated with allied health support.
6. In April 2024, Dr Laurie McLaughlin (Dr McLaughlin) a neurology fellow reported that based on her review of Ms Harding, she has myasthenia gravis with a recent thymectomy complicated by dysphonia and left vocal cord palsy with no significant change so far in her myasthenia gravis control and wearing off with IVIg.[63]
7. In May 2024, Associate Professor Blum reported that the main therapy of myasthenia gravis is long term immunosuppressive therapies which often involves a combination of agents.[64] He reported Ms Harding did have severe rather treatment refractory myasthenia gravis in the last years in spite of rather high doses of immunotherapy.[65] Her immunotherapy as at May 2024 included mycophenolate 750mg twice daily, prednisolone 5 mg once daily, IVIg 10 percent 35 g every 4 weeks, and rituximab (last administered December 2023).[66] Associate Professor Blum reported that it is possible Ms Harding 'will get some improvement of her symptoms after thymectomy'.[67] He also reported that at her assessment in April 2024, that being 3 months post-surgery, Ms Harding had ongoing signs and symptoms of generalised myasthenia gravis of moderate to severe severity.[68] Specifically, he reported:

'Symptoms included difficulties with talking and chewing as well as swallowing intermittently. She had mild shortness of breath. She had some difficulties with activities of daily living such as brushing her teeth or brushing her hair. She had frequent episodes of double vision and droopy eyelids. She has proximal arm and leg weakness with difficulties with mobilising from a chair. I believe that all of the above-mentioned symptoms are secondary to her myasthenia gravis. This is a typical presentation of this illness.'[69]

'Goal of therapy is stabilisation of her myasthenia. Myasthenia gravis is a complex autoimmune disorder. By its nature, it is fluctuating in severity on an irregular basis and as such, immunotherapy often needs to be adjusted depending on the clinical presentation and associated side effects of therapy. The impact on quality of life, mobility, community, and activities of daily living is substantial and will likely persist'.[70]

1. In September 2024, Associate Professor Blum reported that at her assessment in August 2024, that being 7 months post-surgery, Ms Harding displayed a myasthenia gravis composite score of 18 with a myasthenia gravis activities of daily living score of 13, which he opined is consistent with moderate to severe myasthenia gravis.[71] Associate Professor Blum stated the goal of a thymectomy is stabilisation of disease and induction of remission, and that clinical improvement post thymectomy usually occurs in between 6 months and 2 years.[72] He opined that Ms Harding had to date not had clinical improvement post thymectomy.[73] He elaborated:

'[I]t is difficult to predict long term outcome in myasthenia gravis and whether meaningful improvement is possible. At present, she displays ongoing symptoms in the realms of talking, chewing and swallowing as well as breathing. She has ongoing difficulties with self-care such as brushing her teeth and combing her hair. She also has weakness of arms and legs with difficulties rising from a chair. Finally, she does have ongoing visual dysfunction with double vision'.[74]

1. Dr Windley gave oral evidence that he had received a neurology report from Associate Professor Blum dated 21 October 2024. In oral evidence, Dr Windley read that report to the Tribunal:

'Melissa came back for review of her severe myasthenia gravis. She still has a myasthenia composite score of 13 and clearly symptomatic with predominantly bulbar symptoms. This is in spite of substantial doses of immunotherapy including mycophenolate 750 milligrams twice a day prednisone 15 milligrams daily, IVIg 4 weekly and rituximab in June this year. She is now 9 months after her thymectomy.

Further therapeutic avenues are limited. I did mention Zilucoplan to her which is a novel therapy which is not yet on PBS but is TGA approved and available through early access program. We will discuss this further with her in subsequent appointment. She would need to be vaccinated against meningococcus and pneumococcus before she could commence on this medication. I plan to review her in a few weeks.'

1. In oral evidence Dr Windley opined that the fact Associate Professor has not started treating Ms Harding with Zilucoplan 'probably means that either he hasn't got the right ticks in the boxes or he is waiting for something else like PBS approval'. Counsel for the Respondent asked Dr Windley whether they were right to presume this new medication would only be added to a regime if there was some expectation it would improve function as opposed to simply just maintaining function, to which Dr Windley answered 'essentially yes', and explained 'it works in the complement systems to inhibit the progression of the immune mediated steps so it works as basically a hand brake to try and slow things down'.
2. In oral evidence, Dr Windley stated the most recent neurology report he had received from Associate Professor Blum was dated 3 February 2025, that being approximately 13 months post-surgery. Dr Windley gave evidence that in that, Associate Professor Blum reported a slight improvement had been achieved with higher prednisone doses which he wanted to bring down from 15 milligrams to 7 milligrams due to side effects of long-term use; and that he planned to continue current medication with a slight increase in the mycophenolate, and to review Ms Harding in 4 months.
3. Associate Professor Blum has confirmed he does not look after Ms Harding's fibromyalgia as this is not a neurological condition; and opined that whilst separate conditions it is possible her fibromyalgia does overlap to some degree with her myasthenia gravis symptoms.[75] Dr Windley confirmed that whilst he supports Ms Harding in relation to myasthenia gravis, that condition is very much managed by Associate Professor Blum.[76] Dr Windley opined that 'whilst there is some overlap of the conditions, they are not downstream of each other'.[77]
4. In oral evidence, Ms Harding explained myasthenia gravis is her most impactful condition, and described the fatigue that comes with that condition as 'excruciating'. With respect to treatment, Ms Harding gave evidence that her 2 main myasthenia gravis treatments were rituximab which she has every 6 months and IVIg which she has every 28 days. At the time of the hearing, Ms Harding was 3 weeks post rituximab and one week post IVIg, which she explained was her 'peak existence' as these medications 'are at their very best point of working'. She stated that all treatment methods have been exhausted.
5. With respect to the thymectomy, Ms Harding gave evidence to the effect that before that procedure Associate Professor Blum advised she was on the strongest medication that could be prescribed and whilst she did not have a thymoma, a thymectomy was the only other treatment option available. He further informed her there were 3 possible thymectomy outcomes, those being little to no symptoms, able to reduce medication, or no improvement; and the results of a thymectomy would generally become clear around the 12-month mark post-surgery. From her perspective, she believes she has fallen into the third category as she has seen no improvement, and her mestinon, prednisone and mycophenolate dosages have all been increased since her thymectomy. She gave oral evidence Associate Professor Blum has informed her they would have liked to have seen improvement by now post-thymectomy.
6. With respect to Zilucoplan, Ms Harding gave evidence to the effect that as at the date of the hearing, she has not been prescribed that medication as it was decided she would be prescribed rituximab for a further 6 months, after which time her neurologist would consider whether rituximab would be substituted with a different medication as part of the management of her myasthenia gravis symptomology.
7. Having considered the evidence as outlined above, and the weight that can be appropriately given to that evidence, the Tribunal makes the following findings:

a) Whilst it is not entirely clear when Ms Harding was first diagnosed with fibromyalgia, the Tribunal accepts that she does live with fibromyalgia, and for her this presents as chronic sharp pain which affects her ability to function (physical impairment). In making this finding, the Tribunal notes that Dr Windley has been Ms Harding's treating general practitioner since 2019 and has overseen the management of her physical impairment since that time. The Tribunal considers he is therefore well placed to comment on both her physical impairment and the management of that. > > b) The Tribunal further finds that irrespective of when Ms Harding was diagnosed with fibromyalgia, her physical impairment preceded her involvement with Dr Windley. In making this finding, the Tribunal has accepted and given weight to the evidence from 2016 and 2017 authored by Dr Cooke, Dr Byth, Ms Hague and Ms Walsh confirming that Ms Harding was experiencing persistent pain that impacted her ability to function at that point in time. > > c) The Tribunal accepts Dr Windley's evidence that since 2019, Ms Harding's physical impairment has been treated with basic cares, physical therapy, home exercise programs, analgesics, muscle relaxants, anti-inflammatories, nerve agents, and a SNRI; and that to the best of Dr Windley's knowledge these treatments cover the range of treatments available in Australia to manage the symptomatology of fibromyalgia. The Tribunal further finds that prior to 2019, Ms Harding's physical impairment was reviewed by a senior consultant orthopaedic surgeon, treated with a range of medications and allied health therapies, a multidisciplinary rehabilitation program, and specified exercise. > > d) The Tribunal accepts Ms Harding was diagnosed with myasthenia gravis in 2021, and that for Ms Harding this currently presents as extreme fatigue, muscle weakness, difficulty chewing and swallowing, difficulty speaking and breathing, visual dysfunction, and bladder incontinence (physical and sensory impairments). In making these findings, the Tribunal has accepted and given significant weight to Associate Professor Blum's evidence in circumstances where he is a consultant neurologist and has also overseen the management of Ms Harding's myasthenia gravis since 2021. The Tribunal found Associate Professor Blum's reporting to be clinical and measured. The Tribunal has also given some weight to Dr Ter Horst's and Dr Windley's evidence, which included reference to bladder incontinence. > > e) The Tribunal accepts Associate Professor Blum's evidence that Ms Harding's physical and sensory impairments have been treated with long term immunotherapy which has comprised a range of medications used concurrently in varying dosages. Ms Harding's evidence that any improvement from IVIg does not last the full 28 days between treatments was corroborated by Dr Ter Horst's and Dr McLaughlin's evidence, and the Tribunal accepts this is so. The Tribunal is persuaded by Associate Professor Blum's evidence that despite rather high doses of immunotherapy, Ms Harding has severe, treatment refractory myasthenia gravis, and finds accordingly. > > f) Whilst Associate Professor Blum's evidence is that the goal of a thymectomy is stabilisation of disease and induction of remission, upon close analysis of his evidence as it relates to Ms Harding's thymectomy, Associate Professor's Blum's clinical opinion in May 2024 was that whilst it is possible Ms Harding will get some improvement post-thymectomy, the impact of her physical and sensory impairments will likely persist. This suggests to the Tribunal that Associate Professor Blum does not consider it likely the outcome of Ms Harding's thymectomy will be something approaching the removal or cure of her physical and sensory impairments, yet rather, at best it may result in some improvement of those impairments or a reduction of the medications which comprise her immunotherapy. The Tribunal finds accordingly. > > g) On the basis of Associate Professor Blum's reporting in May and September 2024, and Dr Windley's oral evidence regarding what had been reported to him in writing by Associate Professor Blum in October 2024 and February 2025, the Tribunal finds that as at February 2025 no clinical improvement had been achieved by Ms Harding's thymectomy, her myasthenia gravis remained severe, and 3 of the medications which comprise her immunotherapy had been increased. The Tribunal makes these findings despite Associate Professor Blum reporting that a slight improvement had been achieved by February 2024, as it is clear from that report that slight improvement had been in response to higher prednisone doses, not the thymectomy, and sustaining this dosage is problematic due to the side effects of long-term use. The Tribunal further finds that the trajectory of Ms Harding's myasthenia gravis post-thymectomy is, most unfortunately, moving in the wrong direction as evidenced by the dosage of 3 agents that comprise her immunotherapy having been increased. > > h) With respect to Zilucoplan, whilst raised by Associate Professor Blum in October 2024 as a medication he would discuss with Ms Harding at her subsequent appointment, his report to Dr Windley in February 2025 made clear he had decided not to change her medication at that time, other than to increase the dosage of one of her existing medications, and to review her in 4 months. This is consistent with Ms Harding's oral evidence that Zilucoplan was discussed but has not been included as part of her myasthenia gravis management. The Tribunal accepts Ms Harding's evidence that the information she was given during her neurology review was that if Zilucoplan was prescribed, it would replace rituximab and be one agent that comprises her immunotherapy.

8. In circumstances where Ms Harding's treating neurologist does not expect Ms Harding's thymectomy will remedy the physical and sensory impairments arising from myasthenia gravis - that is he does not consider it likely the outcome of that procedure will be close to a removal or cure of those impairments - the Tribunal does not agree with the Respondent that those impairments need to be reviewed in January 2026 before a determination can be made that they are, or are likely to be, permanent in the sense that they will endure.
9. Contrary to the Respondent's closing submission that Zilucoplan ought to be trialled, Associate Professor Blum has, as at the time of the hearing, not introduced Zilucoplan into the management of Ms Harding's myasthenia gravis, and he made no mention of it in his most recent report to Dr Windley. Indeed, in his most recent report to Dr Windley, Associate Professor Blum advised he had decided not to change Ms Harding's medication. This is a decision most appropriately made by Ms Harding's treating consultant neurologist. Further, the Tribunal is not persuaded on the evidence before it that Zilucoplan, even it was prescribed, would be likely to remedy Ms Harding's physical and sensory impairments in circumstances where Ms Harding has severe, treatment refractory myasthenia gravis, and it would be but one agent within the context of her immunotherapy.
10. On the evidence before the Tribunal, and the facts as the Tribunal has found them to be, 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 Harding's physical and sensory impairments arising from myasthenia gravis. The Tribunal is also persuaded those impairments do not require medical treatment and review before a determination can be made about whether those impairments are, or are likely to be, permanent. Whilst it is possible the impact of those impairments on Ms Harding's functional capacity may fluctuate in severity or improve, the Tribunal is persuaded they will nevertheless endure. Accordingly, the Tribunal is satisfied that the physical and sensory impairments Ms Harding has arising from myasthenia gravis are, or are likely to be, permanent. Accordingly, s 24(1)(b) is met with respect those.
11. With respect to Ms Harding's physical impairment arising from fibromyalgia, the Respondent contends that in circumstances where there is an overlap of impairments, as it relates at least to fatigue, between the 2 conditions of myasthenia gravis and fibromyalgia, any decision on permanence of both impairments before 2 years has passed since the thymectomy would be premature.[78] However, the Tribunal does not agree with that contention in circumstances where the Tribunal is satisfied that the physical and sensory impairments arising from myasthenia gravis are, or are likely to be, permanent.
12. The question remains whether the Tribunal is satisfied there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the physical impairment arising from fibromyalgia; or whether further medical treatment or review is required in order for its permanency or likely permanency to be demonstrated. The Respondent contends the fact Dr Windley has not referred Ms Harding to a specialist for her fibromyalgia reinforces that there remain steps to be taken in exploring and addressing Ms Harding's physical impairment.[79] However, the Tribunal has accepted that Ms Harding's physical impairment has been comprehensively treated with a wide range of medications and therapies, and those treatments have in Dr Windley's view included all treatment options available in Australia. Dr Windley has not referred Ms Harding to a rheumatologist or other specialist for review in relation to her fibromyalgia, nor in oral evidence did he suggest this was necessary, or likely to be useful. There is no evidence before the Tribunal that there is any treatment, or combination of treatments, that Ms Harding has not yet trialled, that may remedy her physical impairment. The Tribunal has also accepted that Ms Harding has been compliant with all recommended treatment. For these reasons, the Tribunal is satisfied there is no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy Ms Harding's physical impairment; and is similarly satisfied her physical impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated. It follows that the Tribunal is satisfied that Ms Harding's physical impairment is, or is likely to be, permanent. Accordingly, s 24(1)(b) is met with respect to that.
13. As Ms Harding's physical impairment, and physical and sensory impairments, meet the requirement in s 24(1)(b), they will hereafter be collectively referred to as her 'impairments'.

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

1. Section 24(1)(c) requires that Ms Harding'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 Harding'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.[80] If they are not, the Tribunal must consider whether Ms Harding's functional capacity is nevertheless substantially reduced in any of the prescribed activities.[81]
2. 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 Harding can and cannot do.[82] That assessment involves consideration of the full range of tasks or actions that comprise each of the prescribed activities.[83]
3. Whilst the Respondent accepts that Ms Harding's impairments result in reduced functional capacity to undertake the activities of self-care and mobility, they contend that reduction is not substantial.[84]
4. Mr Dwyer is the occupational therapist who has most recently completed a comprehensive functional capacity assessment of Ms Harding in her home environment. Mr Dwyer prepared a functional capacity assessment report in April 2024, and gave oral evidence at the hearing.[85] With respect to the activities prescribed in s 24(1)(c), Mr Dwyer considered that it was the activities of mobility and self-care which are most impacted by Ms Harding's impairments. In light of this, and the Respondent's position as outlined above in paragraph [64], the Tribunal will firstly consider Ms Harding's functional capacity to undertake those activities.[86]
5. 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).[87] With respect to the activity of self-care, the Access Guideline suggests this includes personal care, hygiene, grooming, eating and drinking, and health; and states that the Respondent considers how a person gets dressed, showers or bathes, eats or goes to the toilet.[88]
6. Mr Dwyer identified Ms Harding's impairments as high daily fatigue and weakness, including vocal weakness, severely impaired activity tolerance, widespread joint and musculature pain, diminished bladder control and intermittent bladder incontinence.[89] With respect to self-care, Mr Dwyer assessed Ms Harding's functional capacity as follows:

a) Excluding intermittent bladder incontinence, she is independent with toileting.[90] > > b) She experiences difficulties with all aspects of showering. Pain limits her ability to reach and wash all areas of her body. She relies on a carer provided through the Queensland Community Support Scheme (QCSS) for showering once per week and does not shower between her weekly supported shower. She feels overwhelmed with the task of showering and that undertaking this task will deplete her energy levels too much. He opined she would benefit from the use of a wall mounted shower seat, long handled shower aids, a grab rail in the shower and support around energy conservation.[91] > > c) She has modified her technique with dressing to maintain her independence, such as sitting to dress and wearing loose fitting garments. She also uses a dressing stick for lower limb dressing tasks.[92] > > d) She is impacted by fatigue when completing grooming tasks which necessitates pacing. By pacing she can usually participate in essential grooming, however occasionally she neglects these tasks. He opined she would benefit from advice around fatigue management and energy conservation.[93] > > e) She is able to participate in light meal preparation tasks. Her pain impacts her standing tolerance and hand function. Her eldest daughter provides some assistance with meal preparation tasks, and she receives commercial assistance for bulk meal preparation through QCSS. He opined she is likely to benefit from several items of assistive equipment.[94] > > f) She can complete grocery shopping online.[95] With pacing, she can load and unload a dishwasher.[96] > > g) She does not have the functional capacity for completing heavier house cleaning tasks such as vacuuming, mopping, bathroom scrubbing or window cleaning. She is able to complete short sessions of light cleaning of accessible surfaces.[97] > > h) Managing heavier laundry tasks is outside her functional capacity. With respect to lighter laundry tasks, her children load the machine, she operates the machine, her cleaner hangs the washing out to dry, and her children usually bring the washing in. He opined minor modifications to her laundry would improve her capacity to engage in this task.[98]

7. Mr Dwyer opined Ms Harding's restricted functional capacity with respect to self-care was entirely explained by the effects of her medical conditions.[99]
8. In other evidence relevant to Ms Harding's capacity to engage in the activity of self-care:

a) In February 2023 Dr Windley reported she finds it particularly difficult to lift arms over her head to wash or brush her hair because of poor muscle tone and fatigue; cannot always wash the lower part of her body; sometimes requires support to wash her entire body; has to wear slip on clothing and shoes; rarely brushes her teeth due to upper body strength and focus; has difficulties completing laundry tasks such as loading the laundry tub and hanging out washing; is limited with the time she can spend on folding and putting away laundry due to fatigue and limited mobility; is unable to complete cleaning tasks such as mopping, vacuuming, cleaning windows or walls and cleaning bathrooms; is unable to stand for long periods to prepare food and is limited to quick easy meals that do not require significant preparation or cooking time. He opined she would benefit from a shower chair or bench, and formal support with self-care and domestic tasks.[100] > > b) In March 2023 Ms Tasker reported that for Ms Harding, dressing is very slow due to fatigue and the need for energy conservation; she cannot wash her hair due to muscle weakness and fatigue when lifting her arms above her head; she receives physical assistance with showering; she struggles to shower once a week which is hygienically insufficient; she cannot manage big shops and has groceries delivered; she is unable to cook as she cannot stand for food preparation; she finds chopping and movement around the kitchen fatiguing; she can complete light household chores if she paces herself; heavier household chores do not get done; her children will on occasion help with the kitchen, but dishes are often left for a week; she is not managing laundry, cannot hang clothes out because of upper limb weakness, and does not have energy to fold washing.[101] Ms Tasker recommended support worker assistance for assistance with cooking, cleaning, laundry, shopping, showering, and hair washing.[102] > > c) In May 2024, Ms Yasmeen Hassan (Ms Hassan), an occupational therapist, reported that Ms Harding remains highly fatigable in the context of her myasthenia gravis and thus would highly benefit from additional services and assistance as outlined in Mr Dwyer's functional capacity assessment report.[103] Ms Hassan reported that Ms Harding's main barrier is her fatigue and the lack of formal and informal supports. She opined Ms Harding would benefit with support for hygiene, domestic assistance, meal preparation, transport, occupational therapy, PT, psychology, unspecified adaptive aids/technology and support for social engagement.[104] > > d) In May and September 2024, Associate Professor Blum reported that Ms Harding has some difficulties with activities of daily living such as brushing her teeth and brushing her hair.[105]

9. In oral evidence, Ms Harding explained that myasthenia gravis is a muscle weakness disease which affects voluntary muscles, so the more she uses her muscles the weaker they get. Ms Harding emphasised that it is because of her excruciating fatigue that from the minute she wakes up, she must log her day - that is, she must work out what she has to do that day and plan how she will achieve that. She elaborated that by this what she meant was she must choose what she will not physically do on that day so that she can achieve that which must be completed.
10. Ms Harding explained she has limited capacity to maintain clean clothes for herself, she had not washed or brushed her hair for 3 weeks as at the time of the hearing, she cannot brush her hair independently, she now has a shower chair but that cannot be kept in the shower as her children also need to use the shower, and she cannot move the shower chair into the shower independently. When pressed as to whether she could shower herself, Ms Harding gave evidence 'only with extreme difficulty and extreme consequences'. She described a period in late 2024 where her support to shower through QSCC fell away, and to shower she would sit on the shower floor, it was hard to get up or down and she would get stuck, she would cry, it was a big process that took hours. She said this is not the way anybody wants to live. She gave further evidence that it was rare she showered during that period, she just would not shower 'because that takes all the spoons and that is not worth my spoons to be clean'.
11. In oral evidence, Mr Dwyer explained that one of the problems for Ms Harding is that it is not her capacity for any given task in isolation to the exclusion of any other activity, it is when each task is considered in the context of the cumulative demands of all daily activities that the problem starts to emerge around her capacity. He further explained that looking at individual tasks in isolation is not necessarily the big picture for someone with very low levels of activity tolerance and fatigue, because that translates across all activities. It then becomes a priority issue that people tend to not have the energy to get through everything they need to in a day. Typically, Mr Dwyer said in such circumstances people tend not to get the heavy physically demanding tasks such as housework done, however for Ms Harding, he opined this seems to even be impacting on her own personal care and she is not getting a good enough routine, which in his opinion should be a daily healthy personal care routine, not a weekly one. He stated that energy conservation was a predominant issue that seemed to taint everything, or there was consideration given to that in pretty much all aspects of the assessment. For Ms Harding, Mr Dwyer opined any deconditioning is explained by activity tolerance and fatigue and not some other factor that should be disentangled. He gave evidence to the effect that Ms Harding's lack of participation in tasks during the day was necessary given her impairments.
12. With respect to each of the tasks that comprise the activity of self-care, when those tasks are considered in isolation, the Tribunal makes the following findings:

a) Ms Harding can independently toilet, dress, complete light meal preparation tasks, complete light household cleaning tasks (such as wiping the kitchen bench), and complete online shopping. In making these findings, the Tribunal accepted Mr Dwyer's evidence in relation to these tasks and noted that was generally consistent with Ms Tasker's evidence. Whilst Ms Harding's evidence was that she no longer uses online shopping for financial reasons, her evidence was to the effect that she does have the functional capacity to complete that task. > > b) Ms Harding cannot complete heavy cleaning tasks (such as vacuuming, mopping, bathroom scrubbing and window cleaning), heavy laundry (including bed linen), or meal preparation (excluding light meal preparation tasks). Mr Dwyer's and Ms Tasker's evidence in relation to these tasks was generally consistent, and the Tribunal accepts that evidence. > > c) Ms Tasker reported Ms Harding cannot wash her hair due to muscle weakness and fatigue; and consistent with this Ms Harding's own evidence is that she cannot wash her hair. Mr Dwyer did not expressly address this specific aspect of self-care, other than to say that within the context of showering, Ms Harding's widespread joint and muscle pain makes reaching and washing all areas of her body difficult; and the long-handled shower aids Mr Dwyer recommended appear to relate to washing difficult to reach body parts, rather than the task of hair washing.[106] The Tribunal accepts Ms Tasker's and Ms Harding's evidence with respect to this, and finds Ms Harding cannot wash her hair. > > d) Ms Tasker reported Ms Harding receives assistance with showering and that she struggles to shower once a week, which Ms Tasker considered to be hygienically insufficient. Ms Tasker opined Ms Harding needs support worker assistance for showering. Mr Dwyer reported that Ms Harding experiences difficulties completing all aspects of showering, showers once a week and relies on the use of a carer to shower. Ms Harding gave evidence to the effect that if she absolutely must shower herself, she can do this, but not without extreme difficulty and extreme consequences. The Tribunal found Ms Harding's evidence in relation to this, and indeed in general, to be honest, frank and without embellishment. The Tribunal is persuaded by the collective evidence that Ms Harding experiences such tremendous difficulty showering that she cannot shower often enough for the Tribunal to find that she can in fact shower independently. In the alternative, the Tribunal finds that there are limits to the difficulty and indignity a person can be expected to endure to shower themselves independently, and the experience as described by Ms Harding in evidence, which the Tribunal accepts as truthful, exceeds that limit. It follows that the Tribunal finds Ms Harding cannot shower without physical assistance. > > e) Mr Dwyer reported that Ms Harding is impacted by fatigue with grooming which necessitates pacing, but with pacing she can usually participate in essential grooming. Neither Ms Tasker nor Ms Hassan expressly reported on Ms Harding's functional capacity with respect to this task. In September 2024, Associate Professor Blum specifically identified brushing teeth and hair as tasks Ms Harding had difficulty with. The Tribunal presumes this is what was reported to him by Ms Harding. As at the time of the hearing, Ms Harding's evidence was that she had not brushed her hair for 3 weeks and cannot brush her hair independently. The Tribunal finds Ms Harding often neglects the task of grooming, and that this is because she usually requires physical assistance to complete this task. As is noted above, the Tribunal found Ms Harding to be a truthful witness who did not embellish when giving evidence. In relation to this task, the Tribunal preferred Ms Harding's evidence to that of Mr Dwyer's, which was based on an assessment completed on 6 March 2024. > > f) The Tribunal noted that both Mr Dwyer's and Ms Tasker's evidence was to the effect that Ms Harding has a very low participation rate in lighter laundry tasks. The Tribunal finds Ms Harding cannot hang clothes out to dry or bring them in once dry. In making this finding, the Tribunal noted Ms Tasker's assessment was consistent with Ms Harding's self-reporting to Dr Windley in relation to this and was corroborated by Mr Dwyer's evidence that this is completed by Ms Harding's informal and formal support. The Tribunal finds Ms Harding cannot fold clothing. In making this finding, the Tribunal noted that Mr Dwyer was silent in relation to this, and accepted Ms Tasker's evidence that Ms Harding does not have the energy for this. The Tribunal accepts Ms Harding can operate a washing machine and dryer, in that she can set those going, however it finds she cannot load and unload washing into those. In making this finding, the Tribunal gave weight to Mr Dwyer's evidence that Ms Harding's children currently do this for her, and to Dr Windley's evidence that Ms Harding reported to him this was something with which she had difficulty. Whilst Dr Dwyer opined that changing the layout of Ms Harding's appliances would significantly reduce the functional demands associated with this, he did not go so far as to say that modification will result in Ms Harding being able to do this. Considered as a whole, the Tribunal finds Ms Harding cannot complete lighter laundry tasks.

13. When considered in isolation, the Tribunal has found that Ms Harding can independently toilet, dress, complete light meal preparation tasks, complete light household cleaning tasks (such as wiping the kitchen bench) and complete online shopping; she cannot complete heavy cleaning tasks (such as vacuuming, mopping, bathroom scrubbing and window cleaning), lighter laundry tasks, heavy laundry (including bed linen), or meal preparation (excluding light meal preparation tasks); and she requires physical assistance to shower and groom.
14. Ms Harding uses a shower chair and a dressing stick, and it has been suggested she would benefit from a range of other equipment in relation to showering, light meal preparation and laundry. However, consistent with the Tribunal's reasoning in Rooney and National Disability Insurance Agency [2021] AATA 3523, the Tribunal considers those to be commonly used items in circumstances where they are generally accessible, need not be customised, are relatively simple to use and are relatively inexpensive.[107] Whilst Mr Dwyer has recommended minor modifications to Ms Harding's laundry, those only relate to the discreet task of light laundry. In those circumstances, the Tribunal is not satisfied Ms Harding is unable to participate effectively or completely in the activity of self-care, or to perform tasks or actions required to undertake or participate effectively or completely in the activity of self-care, without assistive technology, equipment (other than commonly used items) or home modifications.[108] It follows Ms Harding's circumstances do not fall within those described in r 5.8(a) of the Access Rules.
15. Given the extent of tasks Ms Harding cannot complete within the activity of self-care, even with assistance from other people, the Tribunal is also not satisfied that she usually requires assistance (including physical assistance, guidance, supervision or prompting) 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. It follows that Ms Harding's circumstances do not fall within those described in r 5.8(b) of the Access Rules.
16. When the tasks that comprise the activity of self-care are each considered in isolation, the Tribunal would not conclude Ms Harding is unable 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, even with assistive technology, equipment, home modifications or assistance from another person.[109]
17. However, the Tribunal accepts Mr Dwyer's evidence that given the nature of Ms Harding's impairments, assessing her functional capacity to complete tasks in isolation provides an incomplete picture. Ms Harding's evidence that she must choose what she will not do, so that she can achieve what she must do, was consistent with this. The Tribunal accepts that Ms Harding's activity tolerance and fatigue bear upon all tasks that comprise the activity of self-care, and as such, some of those tasks which Ms Harding can do when those tasks are considered in isolation, she in fact cannot do when one factors in that she must prioritise the tasks she will complete on any given day because of her impairments. In such circumstances the Tribunal finds that on any given day, Ms Harding would need to choose not to do one or more of those tasks it has found she can in isolation do, because her impairments require that she prioritise specific tasks over others. It is in these circumstances that the Tribunal is satisfied Ms Harding is unable 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, even with assistive technology, equipment, home modifications or assistance from another person. It follows that Ms Harding's circumstances do fall within r 5.8(c) of the Access Rules, and she is therefore deemed to meet the requirement in s 24(1)(c).
18. In any event, even had the Tribunal not been satisfied Ms Harding's circumstances fall within r 5.8(c) of the Access Rules, given the extent and the nature of tasks that comprise the activity of self-care which Ms Harding cannot do all, or cannot do without physical assistance, even when each of the tasks that comprise the activity of self-care are considered in isolation, the Tribunal is satisfied her impairments result in substantially reduced functional capacity to undertake the activity of self-care. Accordingly, the requirement in s 24(1)(c) is met.

Do Ms Harding's impairments affect her capacity for social or economic participation?

1. Section 24(1)(d) requires that the impairment or impairments affect Ms Harding's capacity for social or economic participation.[110] It is not in contest between the parties that Ms Harding's impairments affect her capacity for social or economic participation.[111] On the evidence before it and the facts as the Tribunal has found them to be, the Tribunal is similarly satisfied of this. Accordingly, the requirement in s 24(1)(d) is met.

Is Ms Harding likely to require support under the National Disability Insurance Scheme for her lifetime?

1. Section 24(1)(e) requires that Ms Harding is likely to require support under the NDIS for her lifetime.

1. In National Disability Insurance Agency v Foster (Foster), the Full Court of the Federal Court confirmed that the focus of s 24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems.[112] It would be wrong for the Tribunal to ask itself whether supports available under other systems would be comparable to what would be available under the NDIS.[113] The Access Guideline provides:

'NDIS supports are investments that help you build or maintain your functional capacity and independence, and help you work, study or take part in social life ...

... When we decide if you'll likely need support under the NDIS for your whole life, we consider:

• your life circumstances
• the nature of your long-term support needs
• whether your needs could be best met by the NDIS, or by other government and community services.'[114]

1. Ms Harding's evidence, which the Tribunal accepts, is that she is a single parent with 3 children who are themselves NDIS participants, and her only income is that which she receives from Centrelink. The Tribunal has accepted that Ms Harding's permanent impairments substantially reduce her functional capacity to undertake the activity of self-care. In evidence are recommendations that the supports Ms Harding requires include support worker assistance, allied health support, assistive technology and support coordination.[115] The nature of those recommended supports align with those Dr Windley reported Ms Harding will require under the NDIS when he completed her Access Request Form.[116] Ms Harding's oral evidence was that under the NDIS she is hoping to receive support with personal care, laundry, cleaning and meal preparation; access to a number of allied health therapies; and assistive technology. The Tribunal generally accepts this evidence as it relates to the nature of Ms Harding's current support needs. Mr Dwyer opined Ms Harding's future support needs are unlikely to change in the future to any significant degree.[117] The Tribunal accepts this evidence and finds that the nature of Ms Harding's current support needs is likely indicative of the nature of her long-term support needs.
2. Mr Dwyer identified various community-based supports and services that may be available to meet Ms Harding's needs, including QCSS, the Queensland Community Transport Program (QCTP), Taxi Subsidy Scheme (TSS) and Lift Payment, and the Medical Aids Subsidy Scheme.[118] He provided general information in relation to each of those services, which included that persons with a disability who are eligible for the NDIS are ineligible for QCSS services; to be eligible for QCTP services a person must not be receiving transport services for the same or similar purpose under another government program such as the NDIS; and TSS membership lasts for a maximum of 5 years, after which someone must reapply.[119] Ms Harding confirmed in oral evidence that she is eligible to receive 5 hours per week of support from QCSS; she is eligible for the Taxi Subsidy Scheme however there are gap payments incurred which she cannot afford; and her current shower chair was obtained under the Medical Aids Subsidy Scheme. The Tribunal accepts Ms Harding's evidence with respect to this.
3. Dr Windley gave evidence that under a CDMP, Ms Harding can access 5 funded or co-funded visits per calendar year with a range of allied health professionals; and he understood Medicare covered approximately $53 for each of those 5 visits. Dr Windley last completed a CDMP for Ms Harding on 30 August 2024 and that was utilised for a dietitian.[120] Ms Harding's oral evidence was to the effect that she cannot afford out of pocket expenses associated with accessing allied health. Dr Windley confirmed in oral evidence that allied health therapists usually charge a fee which exceeds what Medicare covers when delivering services under a CDMP.
4. The Tribunal does not consider that the fact Ms Harding is currently or has in the past, received support from other systems, or that she may be eligible to receive support from other systems in the future, in and of itself means her support needs are most appropriately met by other systems. Having considered Ms Harding's circumstances and the nature of her long-term support needs, the Tribunal is satisfied that she is likely to require support under the NDIS for her lifetime, and that those support needs are not most appropriately provided by other systems. Accordingly, the requirement in s 24(1)(e) is met.
5. In circumstances where the Tribunal is satisfied that each of the requirements in s 24(1) are met, it follows that Ms Harding meets the disability requirements in s 24. As Ms Harding meets the age requirements in s 22, the residence requirements in s 23, and the disability requirements in s 24, the Tribunal finds she meets the access criteria to become a participant of the NDIS.[121]

1. The Tribunal sets aside the decision under review and decides in substitution that Ms Harding meets the access criteria to become a participant of the National Disability Insurance Scheme as set out in s 21 of the National Disability Insurance Scheme Act 2013.

for the decision herein of General Member L Proske

[6] 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.

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

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

[9] In circumstances where Ms Harding's access request was made before 3 October 2024, amendments made by the National Insurance Scheme Amendment (Getting the NDIS Back on Track) Act 2024 (Amending Act) to the NDIS Act do not apply to this application: s 126 of the Amending Act.

[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].

[14] s 24(1)(a); Respondent's Statement of Facts, Issues and Contentions (Respondent's SFIC), [19]-[21]; Respondent's closing submission.

[18] s 24(1)(b); Respondent's SFIC, [17], [29]-[31].

[40] E1, 443; Dr Windley, oral evidence.

[43] E1, 443; Dr Windley, oral evidence.

[45] E1, 133; Dr Windley, oral evidence.

[46] E1, 133, 334; Dr Windley, oral evidence.

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

[84] Respondent's SFIC, [51], [56], [59], [65], [71], [74]; Respondent's closing submissions.

[107] Rooney and National Disability Insurance Agency [2021] AATA 3523, [27].

[110] Respondent's closing submissions.

[111] s 24(1)(a); Respondent's SFIC, [19]-[21]; Respondent's closing submission.