1. That the applicant meets the first requirement is not in dispute. The respondent accepts that the applicant has impairment arising from 'fibromyalgia, osteoarthritis, lumbar spondylosis and bilateral knee deformity resulting in chronic pain, as well as major depression disorder and PTSD'.[6]
2. There is, though, a need for some precision about what impairments the applicant experiences, in order for the subsequent criteria to be fairly examined.
3. The applicant gave evidence that she had suffered from osteoarthritis, fibromyalgia, a disc problem in her back, spinal stenosis, migraine, tennis elbow, a recent tear in the pelvic area and, recently, an inflammatory problem affecting her hip. The applicant, though, professed to having a poor memory and had significant difficulty accurately recalling dates in the course of giving evidence, so I do not take that list to be exhaustive or any substitute for what is put in the ASFIC.
4. The better list, which tends to 'cover the field' of the applicant's diagnoses, if not her impairments, is in a report of Dr Khashaiar Shekarchi, general practitioner, dated 20 September 2024.[7] Dr Shekarchi identified the following diagnoses and impairments:
   • Bilateral knee deformity and pain due to meniscal tear and joint early arthritis, causing difficulty with walking and chronic pain which affected sleep
   • Cervical spinal disc herniation with nerve impingement and radiculopathy, which caused neck pain, radiculopathy and arm numbness, affecting daily activities and sleep
   • Lumbar disc herniation with radiculopathy, causing back pain, radiculopathy, limping and imbalance
   • Bilateral elbow bursitis and epicondylitis causing bilateral elbow pain and restricted range of movement due to pain
   • Major depressive disorder causing poor sleep, crying, anger, loneliness and avoidance of social contact
   • Anxiety and adjustment disorder causing stress, poor sleep, heart palpitations, fear and lack of confidence
   • Chronic migraine causing headaches, nausea and loss of concentration during 'attacks'
   • Dermatitis and psoriasis causing skin changes, itchiness and small joint disease
   • Bilateral wrist carpal tunnel syndrome causing wrist pain and numbness, particularly at night
   • Severe fibromyalgia causing chronic pain, poor sleep and depression
   • A bilateral heel spur and feet deformity causing pain and tendonitis in the feet, despite surgery.
5. There is more detailed information in the evidence about some of those conditions from treating medical specialists and allied health practitioners. For example, in a report dated 22 May 2024,[8] Mr Hamid Attai, psychologist, said the applicant had been receiving counselling and treatment for her psychological illness, which was consistent with post-traumatic stress disorder and major depressive disorder. Mr Attai described the applicant's current problems and symptoms as including:
   • diminished functioning which had impacted her social interaction, communication and psychosocial development,
   • reduced memory and concentration,
   • reduced self-esteem and self-confidence,
   • depressed mood, low motivation and lethargy,
   • limited family and social support, and
   • mood disturbances.
6. In a report dated 14 November 2024,[9] Associate Professor Ana Ananda, rheumatologist, said she had seen the applicant since 2022. The applicant had fibromyalgia and chronic pain syndrome, as well as cervical spondylosis and nerve root compression requiring C5/6 discectomy and fusion, osteoarthritis affecting the knees, lumbar spondylosis, depression, chronic migraines, bilateral carpal tunnel syndrome and elbow epicondylitis. Her conditions resulted in diminished cognitive function, widespread joint and soft tissue pain, emotional distress and social isolation.
7. Dr Shekarchi's list does not mention hip pain, but I accept the applicant's evidence that she suffers from hip pain, and it is likely to have commenced since Dr Shekarchi's report.
8. I accept, in general terms, that the applicant experiences long-term major depression (the diagnosis, including whether there is post-traumatic stress disorder, is not a significant issue), a constellation of musculoskeletal problems with chronic pain, and migraines. As her treating practitioners have set out, those problems collectively cause - amongst other things - impaired cognition, mood and motivation, impaired sleep, difficulty with walking, and joint pain at numerous anatomical sites. I am satisfied that she has a disability attributable to impairments and impairments to which a psychosocial disability is attributable.
9. I have not addressed the applicant's skin condition beyond this point. It is not identified in any terms in the ASFIC and is not a particular subject of discussion in the medical evidence before the Tribunal. It is uncontentious to observe that dermatitis is not a condition that would often result in significant impairment or disability for the purposes of the NDIS.

(b) Are the impairments likely to be permanent?

1. In relation to whether an impairment is permanent or likely to be permanent, the Rules provide:

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

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

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

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

1. I have set out the evidence about the applicant's psychosocial impairments (from her major depressive disorder), physical impairments (from her fibromyalgia and musculoskeletal conditions) and neurological impairments (from her migraines) separately. I have borne in mind, though, that the conditions are somewhat inter-related.

1. The applicant's conditions are longstanding. She was born in Iran to a Bahai'i family, where she suffered systemic discrimination. She left for Turkey and migrated to Australia in about 1999. She married a Bahai'i man in Australia and had 2 children. The relationship with her husband was conflictual and marked with reported domestic violence. They separated in about 2016 and divorced in 2019. The family breakdown resulted in a strained relationship with the applicant's now adult children.[10] Progress notes from her regular general practice indicate that the applicant first attended on 21 February 2012 and gave a history of suffering from depression for 7 years and been taking antidepressant medication Lovan (fluoxetine) for 5 years.[11] Depression is a feature of many subsequent progress notes, often in connection with family issues and domestic violence.
2. On 7 June 2012,[12] Dr Fiona Denton, clinical psychologist, said she had seen the applicant the previous day, and she reported low mood, loss of pleasure in life, sleeping difficulties, tearfulness, lack of motivation and social withdrawal. Dr Denton said the applicant's symptoms appeared to be contributed to by her isolation (the applicant had few friends and mostly stayed home), sleeping during the day instead of at night, and poor communication within her marriage.
3. On 13 December 2012,[13] Dr Denton reported that the applicant had improved her sleep patterns and energy, but her mood remained low, and she had not attended appointments (involving cognitive behavioural therapy) frequently enough for them to be of maximum benefit. The applicant was concerned about significant pain in numerous parts of her body.
4. On 15 May 2013,[14] Dr Denton said that recent sessions with the applicant had focussed on helping her adjust to the physical experience she experienced from fibromyalgia and migraines. A worsening of migraines, which the applicant experienced most days, significantly affected her mood and motivation.
5. In a report dated 17 August 2013,[15] Dr Richa Rastogi, psychiatrist, said:

She describes improvement in her relationship with her husband whom she identifies [as] having anger issues ad sought counselling which has helped to improve their relationship. Her onset of depression was related to dealing with his anger issues and some physical violence directed towards her and further relapses [occurred] in context of pregnancies as well as battling with recent diagnoses of fibromyalgia and chronic pain. Her pain is under good control since being on current medications but pain worsens with minimal movement.

Her current symptoms include [a] constant state of emotional lability, intolerance to situation and irritability, increased agitation, chronic headaches, feeling hopeless, worthless and sense of failure despite [that] the relationship [has] improved with [her] husband and he [is] being very supportive in her management. Her sleep, appetite, concentration and motivation are impaired with pervasive sense of sadness and anhedonia. ... She has been socially isolated and avoids social situations with limited social functioning which is restricted by chronic headaches. She also experiences nervous anxiety when going out and constant arguments initiated by her due to loss of control and feeling stressed by parenting needs.

She has trialled Aropax in the past for a period of 3 years since 2002 and then has been maintained on Lovan to date. She describes withdrawal symptoms of [a] physical nature when she has tried to withdraw from Lovan.

1. Dr Rastogi prescribed Cymbalta and recommended introducing Seroquel with graded titration.
2. In a report dated 10 November 2015,[16] Dr Tracey Fay, psychiatrist, recorded that the applicant's depression had worsened in the previous 12 months. The applicant attributed her depression to interpersonal problems with family. She was taking duloxetine (Cymbalta). She had tried a number of antidepressants over the years but found that, while initially effective, the benefit tended to plateau. She was seeing a psychologist. Dr Fay recommended an interpersonal approach to psychotherapy to broaden and strengthen the applicant's social ties, and moving from duloxetine to venlafaxine.
3. On 7 November 2016,[17] the applicant was admitted to hospital with worsening depression in the context of a marital breakdown, which had happened in July. Her children were, at that stage, living with their father. The hospital recorded that the applicant was taking venlafaxine and had been on 3 different SSRI medications before that. She had been seeing a psychologist regularly but had started cancelling appointments as she was not improving. The applicant reported crying every day and having no motivation or energy. The applicant was admitted on a crisis basis but discharged the next day.
4. In about 2017,[18] the applicant had 10 sessions with Dr Farangis Houshmand, psychologist. Dr Houshmand said that the applicant was seen for chronic, anxiety, depression and relationship issues. Despite psycho-intervention and cognitive behavioural therapy, the applicant's prognosis was poor and she was 'struggling significantly.'
5. In a report dated 19 August 2019,[19] Mr Massoud Amani, psychologist, said that the applicant was suffering with depression and panic attacks. Her separation and family issues negatively influenced her social life, development and self-esteem. She required ongoing psychological support.
6. In a report dated 28 August 2019,[20] Dr Susheel Manambrakkat, psychiatrist, said the applicant presented with significant anxiety and depressed mood. She had headaches when stressed. There was a history of panic attacks but not in the previous 4 months. The applicant had tried at least 4 different antidepressant medications without benefit. Dr Manambrakkat prescribed Lexapro (escitalopram) and Serenace (haloperidol), which had helped with panic attacks, but the applicant had nightmares and insomnia.
7. In a report dated 2 September 2020,[21] Mr Amani said he had seen the applicant since June 2019. She had symptoms consistent with post-traumatic stress disorder and major depression. Mr Amani was providing cognitive behavioural therapy and interpersonal therapy. He said that:

All available treatments which could alleviate the impairment of functioning for these conditions have been undertaken without any improvement. Ms Nematian's mental health impairment on daily life is likely to be permanent, and it will require the assistance of another person on most daily tasks or assistance equipment to support her daily life. Extra demanding mental activity at this stage increases the level of stress and it affects her mental health negatively due to her condition.

At this stage, Ms Nematian is not fit for any extra stress either physical or mental which could increase her stress levels and affect her mental health negatively. I believe she needs long‑term treatment in order to recover from her Depression, Anxiety and Domestic Violence. Ms Nematian obviously needs psychological intervention in order to cope with her current situation and underlying condition. Based on the facts regarding her mental health, I recommend continued therapy to recover from her severe anxiety and depression.

1. I observe there is some tension in that opinion, between the applicant's condition being permanent on the one hand, and the possibly of recovery on the other.
2. In letters to Centrelink dated 10 September 2020[22] and 3 December 2020,[23] Dr Mohsen Mirzale, psychiatrist, said the applicant had major depressive disorder in the context of a traumatic divorce and personality vulnerabilities. She was taking Pristiq and Seroquel, and seeing Mr Amani (psychologist) and Dr Bina (family therapist). Dr Mirzale said that the applicant's condition was enduring and unlikely to improve in the foreseeable future.
3. In a longer report addressed to Dr Shekarchi, also dated 10 September 2020,[24] Dr Mirzale said the applicant's symptoms of depression largely came from unresolved grief related to the end of her marriage. She was frustrated with her relationships with her children. Dr Mirzale recommended the applicant continue with Pristiq but switch from haloperidol to Seroquel.
4. In a further letter dated 20 April 2021,[25] Dr Mirzale said he had seen the applicant 3 times in 2020. She had post-traumatic stress disorder as well as major depressive disorder.
5. In a letter dated 28 July 2021,[26] Dr Mirzale made some treatment recommendations to assist with nightmares and said that long-term therapy would be immensely helpful.
6. In the applicant's NDIS application dated 25 October 2022,[27] Dr Shekarchi diagnosed major depression and anxiety disorder with adjustment disorder. He identified that treatment (identifying a mix of physical and psychological therapies) would be likely to substantially reduce the applicant's impairment, including by reducing stress and anxiety.
7. On 8 March 2023,[28] Ms Roshanak Vahdani, psychologist, wrote to Dr Shekarchi that she had seen the applicant for 6 sessions. She had stress and anxiety in relation to her marriage break-up and co-parenting arrangements.
8. Ms Roshanak Vahdani, psychologist, completed an NDIS 'evidence of psychosocial disability form' on 24 August 2023.[29] Ms Vahdani said the applicant had major depressive disorder and fibromyalgia. She had seen psychologists on and off for 10 years. She had had cognitive behavioural therapy, interpersonal psychotherapy and trauma counselling with little effect. She had been prescribed and taken several antidepressant medications with little effect. The applicant remained anxious and depressed.
9. Ms Vahdani made similar comments in another version of the form completed on 17 September 2023.[30]
10. Ms Vahdani's progress notes, spanning the period 12 April 2022 to 30 November 2023 are contained in the JTB.[31] The applicant consistently presented with low mood. Sources of distress reflected in the notes are mixed, but the applicant's relationship with her children is a consistent theme.
11. In late 2023 or early 2024, Ms Vahdani referred the applicant to the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS).[32] The referral information, as it appears in the JTB, is incomplete but says:

Khadijeh has lived in Australia over 25 years but never received trauma counselling in relation to trauma she experienced as a Bahai person in Iran and then in Turkey where she was a refugee. She has had multiple stressors throughout her life including discrimination and abuse because of her religion. This has affected her personality and ability to engage in relationships. She has had PTSD and Major depression for many years as well as muscle-skeletal issues and Fibromyalgia. She needs regular therapy and cannot afford to pay for this in the private health system. I have seen her on and off in the last couple of years in relation to family issues but she [text cut off] ...

Khadijeh needs more regular therapy to help her deal with issues from the past as a refugee and a minority in Iran as well as issues stemming from her marriage and separation. She has found it hard to accept this and has challenges in relating to her children. She needs to have regular therapy which she cannot afford as a pensioner.

1. In his report of 22 May 2024,[33] Mr Attai said the applicant had been receiving counselling and treatment for her psychological illness, which was consistent with post‑traumatic stress disorder and major depressive disorder. She had been taking psychotropic medication for over 20 years, including Serenace (haloperidol), Seroquel (quetiapine), and Lexapro (escitalopram), and was currently taking Pristiq (desvenlafaxine). He described her condition as permanent, however noted a need for further treatment including cognitive-behavioural therapy, acceptance and commitment therapy, mindfulness, diary entries, gradual desensitisation and progressive muscle relaxation. The applicant had been unable to have required treatment over the previous few years due to access and affordability issues.
2. In his report of 20 September 2024,[34] Dr Shekarchi said the applicant needed regular consultations with a clinical psychologist and annual review by a psychiatrist. If she was on 'regular treatment such as psychotherapy, consultation, physio and hydrotherapy, pain management program, she can live independently with less stress and anxiety.'
3. In a report dated 5 February 2025,[35] Mr Attai maintained his opinion that the applicant had symptoms consistent with major depressive disorder and post-traumatic stress disorder. Her psychological illnesses were debilitating and, in combination with physical ailments, significantly hindered her normal daily functioning. She required NDIS support because she could not afford required psychological intervention.
4. Ms Jacinta Kiraz, occupational therapist, reviewed the applicant and produced a report dated 13 March 2025,[36] said to be in support of the applicant's application to be a participant in the NDIS. Ms Kiraz noted the applicant's various diagnoses and said:

Taken together, these complex and chronic conditions result in significant, permanent, and non-improving impairments across both physical and psychosocial domains. Khadijah's disabilities are not responsive to standard treatments or rehabilitation interventions, and she requires ongoing, intensive, and sustained support to maintain basic functioning, safety, and participation in daily life. Her functional impairments substantially reduce her ability to undertake everyday activities independently and have led to a profound loss of capacity to engage meaningfully within her home and community environments.

1. In a report dated 16 April 2025,[37] Mr Attai said that:

Ms Nematian's illnesses and conditions are permanent and stabilised. Ongoing treatment will not cure or remedy her illnesses, but are necessary to ensure she does not develop additional illnesses for which she is at risk of (such as schizophrenia), and that her illnesses are managed and do not worsen in intensity, frequency and duration. Treatment provides temporary relief and aims at increasing quality of life despite her permanent conditions.

1. The applicant said she had last seen Mr Attai about 3 months before the hearing (so about June 2025). She said she needed to see him more but had not been able to (which she variously attributed to difficulties travelling and running out of medicare‑subsidised sessions).
2. In a report dated 23 April 2025,[38] Dr Shekarchi said:

From a professional perspective, it is important to note that while the recommended treatments (e.g., physiotherapy, psychotherapy, acupuncture, etc.) can help manage symptoms and improve her quality of life, they may not entirely cure chronic conditions such as fibromyalgia, osteoarthritis, or major depressive disorder. These treatments are designed to relieve symptoms, enhance mobility, and improve functional capacity. While they could substantially benefit Ms. Nematian, they cannot completely eradicate the impairments.

1. Mr Miszczuk assessed the applicant in her home and provided a report at the request of the respondent. In his report of 30 August 2024,[39] Mr Miszczuk suggested that the medical consensus was that symptoms (of both physical and psychological conditions) were likely to persist for the foreseeable future, and treatment would not be curative.
2. On the issue of permanence of the applicant's psychosocial impairments, the RSFIC[40] says that although the applicant's psychiatric diagnoses are longstanding, 'they appear to have arisen at an acute point in the applicant's life (separation and divorce 2016-2019)'. The applicant's treating practitioners (including Dr Shekarchi and Mr Attai) have made comments consistent with the proposition that the applicant's condition might improve with more regular treatment. The evidence before the Tribunal 'does not establish the frequency, duration and nature of therapy sessions which the applicant has received in order that the respondent and the Tribunal can make a proper assessment of the evidence as to the permanency or otherwise of the applicant's impairments in respect of her MDD and PTSD'.
3. In closing submissions, counsel for the respondent said that the evidence was that the applicant's engagement with treatment (for both physical and psychological issues) was sporadic and inconsistent.
4. That has been true at times, but a wider look at the evidence reveals that:
   • The applicant has had symptoms of depression since perhaps 2005 (7 years before the earlier evidence of treatment in the hearing papers, in 2012). The main drivers of the applicant's symptoms appear to be her social isolation and her interpersonal relationships with family members, against a background of trauma from events in Iran and Turkey. While the respondent is not quite correct to point out that the applicant's diagnoses arose with her separation and divorce, those were clearly very significant stressors in that context.
   • The applicant has seen at least 5 psychologists: Dr Denton, Dr Houshmand, Mr Amani, Ms Vahdani and Mr Attai. She has been treated with cognitive behavioural therapy and psychotherapy, amongst other interventions.
   • The applicant has seen at least 4 psychiatrists: Dr Rastogi, Dr Fay, Dr Manambrakkat and Dr Mirzale.
   • The applicant has tried a number of antidepressant medications, including fluoxetine, paroxetine, duloxetine, venlafaxine, escitalopram, haloperidol and desvenlafaxine, as well as quetiapine (which is an antipsychotic medication rather than an antidepressant medication).
   • The treatment that Mr Attai recommended in his 2024 report (essentially, cognitive behavioural therapy, psychotherapy, and concentration and relaxation techniques) are not, at least generally speaking, new treatment ideas. The applicant has had cognitive behavioural therapy with a range of providers and psychotherapy with at least Ms Vahdani, both of which - on Ms Vahdani's account - were not particularly successful. Mr Attai clarified in his 2025 report that treatment would be aimed at preventing deterioration.
5. I accept it is the case, as Dr Shekarchi's reports suggest, that the applicant would benefit from more regular treatment and has been limited to medicare‑subsided psychological treatment in more recent years. I do not put much weight on the opinion contained in Dr Shekarchi's responses in the original form seeking access to the NDIS - while Dr Shekarchi identified that a substantial decrease in impairment was likely, the form does not facilitate the provision of any nuanced opinion about which of the applicant's various impairments might improve.
6. The question, in all of that, is whether the applicant's psychosocial impairments are, or are likely to be, permanent. That turns on whether there are known, available and appropriate treatments, as described in rule 5.4, that would be likely to remedy the impairments. In my view, the evidence establishes that there are known, available and appropriate treatments - per Mr Attai and Dr Shekarchi, regular cognitive behavioural therapy and psychotherapy supported by antidepressant medication and psychiatric review - but that the treatments would not be likely to remedy the applicant's psychosocial impairments.
7. That is because the applicant has actually availed herself of recommended treatments over a great many years. There is no suggestion that engagement has always been a problem (though I accept it has at times and has been a problem recently). Nonetheless, the applicant's impairments have not improved over time. The acute worsening of the applicant's condition in 2016 has clearly not abated. To take Mr Attai's 2024 opinion as persuasive evidence that psychosocial impairments are capable of being remedied ignores his subsequent clarification that treatment will only prevent deterioration and, more significantly, disregards the applicant's extensive treatment history.
8. I have, below, found that the impairments resulting from the applicant's musculoskeletal conditions are not permanent, in the sense required by subsection 24(1). That raises a question as to whether, if those impairments were remedied, the applicant's psychosocial impairments might improve as a result. I do not think that is the case. The evidence is that the applicant's depression predates her complaints of pain, and - although chronic pain is a factor - to the extent that the depression has an external cause it has mostly been linked to interpersonal, family problems. In fact, I note Associate Professor Ananda's opinion that the applicant's fibromyalgia has a psychological input, rather than the other way around.
9. That the applicant's impairments are likely to be permanent is consistent with the explicit opinions of Ms Vahdani, Mr Amani and Dr Mirzale, notwithstanding that each of them recommended continuing treatment of one kind or another.
10. Per rule 5.5, this is a case where the applicant's condition will fluctuate, and the extent of the impact on the applicant's functional capacity may improve, but her psychosocial impairments are nonetheless likely to be permanent.
11. It follows that the requirement in paragraph 24(1)(b) is met, in relation to the applicant's psychosocial impairments, including her impaired mood and emotional regulation, sleep, social functioning, motivation and cognition.

1. It is unclear precisely how long the applicant has experienced symptoms from her musculoskeletal or chronic pain conditions. I note she was concerned about the possibility of multiple sclerosis in 2012.[41] On 19 November 2012, she reported that all her joints were painful and she wanted an MRI or bone scan.[42] Soon after, she was referred to a rheumatologist and a neurologist.
2. In a report dated 15 February 2013,[43] Associate Professor Ananda said that the applicant reported a 5-month history of insidious onset of generalised pain affecting the hands, feet, shins, elbows, forearms and shoulders. Associate Professor Ananda said the applicant had features of fibromyalgia in the context of depression and migraines. There were no clinical features to suggest inflammatory arthritis. Management of the condition would require an understanding of the condition, psychological input, lifestyle factors, exercise and medication.
3. In a report dated 7 April 2013,[44] a trainee doctor writing on behalf of Associate Professor Ananda said that physical examination was unremarkable. Fibromyalgia symptoms had improved significantly with Lyrica (pregabalin) but due to a change in Pharmaceutical Benefits Scheme criteria for prescribing Lyrica, the applicant was switched to Neurontin (gabapentin).
4. In a report dated 4 July 2013,[45] Dr Richard Holland, rheumatology registrar writing on behalf of Associate Professor Ananda, said the applicant was encouraged to continue taking duloxetine (prescribed by her psychiatrist) and gabapentin, and to commence a regular exercise program, slowly upgrading the level of intensity.
5. On 25 November 2013,[46] Dr Holland said he had encouraged the applicant to develop an exercise routine, which at first could be as simple as walking around the block twice a week. He also suggested aqua aerobics.
6. In a report dated 24 June 2014,[47] Dr Daniel Sumpton, rheumatology trainee, said the applicant's pain was well controlled, her mood had improved, and her fibromyalgia was stable. Her 'main issue' was that she was not exercising, and there had been a long discussion about the benefits of exercise for fibromyalgia, including improvements in mood, pain and sleep.
7. In a report dated 18 August 2016,[48] Dr Farhaan Altaf, orthopaedic surgeon, said the applicant had left knee pain which had started 8 months earlier. Dr Coolican would review her to see if she was a candidate for realignment surgery.
8. In a report dated 7 September 2020,[49] Dr Shekarchi listed diagnoses of bilateral knee deformity due to a meniscal tear and arthritis, a cervical spinal disc herniation with nerve impingement and radiculopathy, a lumbar disc herniation causing radiculopathy, bilateral elbow bursitis and epicondylitis, chronic migraine, dermatitis and psoriasis.
9. In a report dated 7 October 2020,[50] Dr Chi-Yueh Yang, general practitioner, referred the applicant to a neurosurgeon, in connection with her cervical spine pathology. On 8 November 2020,[51] the applicant reported to Dr Yang that she was on a waiting list for Royal North Shore Hospital 'orthospine'.
10. In a report dated 27 November 2020,[52] Associate Professor Ali Ghahreman, neurosurgeon, noted the applicant had been referred for cervical spine pathology. She also had lower back pain, knee pain, migraine, depression and anxiety. Associate Professor Ghahreman recommended injections to control symptoms and delay surgery.
11. In a report dated 14 December 2020, Dr Sean Suttor, orthopaedic surgeon, said the applicant had a 4-month history of left arm and neck pain with radicular symptoms, on a background of chronic neck and lower back pain. Examination was normal. Dr Sutton recommended a left C6 nerve root injection.
12. In a report dated 28 January 2021,[53] Dr Justine St George, orthopaedic surgeon, saw the applicant with bilateral knee pain. Dr Coolican had discussed options with the applicant and felt that the best course of action was to refer her to the Osteoarthritis Chronic Care Program (OACCP), for education and exercises. Surgery would be contraindicated in the absence of arthritis.
13. On 2 July 2021,[54] Associate Professor Ghahreman said the applicant had not responded to steroid injections and continued to have low back pain.
14. The applicant said the same at the hearing: over the years she had had multiple cortisol injections, including for the back, neck, knee, elbows and shoulders. She had not experienced any relief.
15. On 6 September 2021,[55] Associate Professor Ghahreman said that taking Palexia would allow the applicant enough pain relief to participate in an intense core strengthening exercise program and he had referred her to a physiotherapist to arrange that.
16. In a letter dated 26 July 2022,[56] Associate Professor Ghahreman said he had referred the applicant for transforaminal injections which the applicant was keen to have while waitlisted for neck surgery.
17. In a report dated 23 September 2022,[57] Dr Mayuran Suthersan, orthopaedic surgeon, said he had seen the applicant with bilateral forefoot pain, apparently attributable to osteophytes at the first metatarsophalangeal joint on each foot. The applicant was waitlisted for surgery. The applicant was going to the gym at that stage.
18. In connection with the applicant's NDIS application dated 25 October 2022,[58] Dr Shekarchi diagnosed fibromyalgia, cervical disc herniation and bilateral knee deformity. The applicant's treatment at that time included physiotherapy. As above, Dr Shekarchi thought that treatment (including physiotherapy and pain management) would be likely to substantially relieve the applicant's impairment.
19. In a report dated 9 November 2022,[59] Associate Professor Ananda said (consistent with her 2013-2014 reports), that the applicant had symptoms of fibromyalgia in the context of depression, migraines and social stress. There were no clinical features of inflammatory arthropathy. The applicant was on waiting lists for neck surgery and for bunion surgery. Associate Professor Ananda restarted Neurontin and encouraged exercises and lifestyle modification.
20. On 20 January 2023,[60] Associate Professor Ananda recorded that the applicant had mechanical knee pain and a surgeon, Dr Graham, had apparently advised knee arthroscopy and put the applicant on a waiting list. Because of upcoming neck surgery, the applicant would put her gym membership on hold. Associate Professor Ananda recommended ongoing physiotherapy exercises and told the applicant that arthroscopy was only indicated for an unstable knee.
21. On 31 March 2023,[61] Associate Professor Ghahreman certified that the applicant could use a treadmill for exercise.
22. On 19 May 2023,[62] Associate Professor Ananda noted that the applicant had now had an anterior C5/6 cervical discectomy and fusion (the anticipated neck surgery), but it had made no difference to the arm pain.
23. The scope of time that the applicant was engaging in exercise is somewhat unclear. She said at the hearing that she had had a few sessions at the gym and done some simple things like use a treadmill. She had not continued after the neck surgery despite Associate Professor Ghahreman recommending that she do so.
24. On 19 July 2023,[63] Associate Professor Ananda noted the applicant reported ongoing pain in the shoulders, elbows, wrists and shins. Given significant synovitis in the wrists, the applicant was referred for MRI scans to exclude inflammatory arthropathy.
25. On 10 August 2023,[64] Dr Myles Coolican, orthopaedic surgeon, completed an NDIS access form. Dr Coolican diagnosed osteoarthritis in both knees. The condition would not be lifelong because the applicant would eventually have a knee replacement and impairments would largely cease. She needed physiotherapy, hydrotherapy and other treatment.
26. The applicant told the Tribunal that despite Dr Coolican recommending a knee replacement in 2023, she had been told more recently that it was not an option and she might have to wait until she was 70 years old.
27. On 16 August 2023,[65] Associate Professor Ananda also completed an NDIS access form. Associate Professor Ananda diagnosed fibromyalgia and osteoarthritis, for which the applicant had tried a number of medications. She had had neck surgery and physiotherapy. Like Dr Coolican, Associate Professor Ananda recommended physiotherapy and hydrotherapy.
28. In a report dated 24 August 2023,[66] Ms Yun (Ching) Qing, physiotherapist, said that the applicant had a complex pattern of pain involving her neck, shoulders, elbows and low back. There was a full range of motion in the shoulder and elbow, but reduced range of motion in the neck. She 'might benefit' from ongoing weekly physiotherapy for complex pain.
29. The applicant said that she had not seen a physiotherapist since seeing Ms Qing, which she thought had happened 5 times. She had driven herself to some of those appointments. The physiotherapist gave her exercises, but she had not been able to do much.
30. In a report dated 14 September 2023,[67] Dr Shekarchi said the applicant had been advised to have knee surgery for years but could not afford the operation. She had had physiotherapy and hydrotherapy. She had had surgery for her spine issue. For her elbow, she needed physiotherapy, hydrotherapy, acupuncture and nerve stimulating therapy. For her fibromyalgia, she needed 'regular team work', psychology, a pain clinic, physiotherapy and exercise physiology.
31. A nerve conduction study on 20 October 2023[68] showed no evidence of focal or generalised neuropathy or radiculopathy. The neurologist recommended a course of physiotherapy.
32. On 2 November 2023,[69] the applicant underwent a left great toe metatarsophalangeal joint fusion and arthrodesis.
33. In a report dated 22 November 2023,[70] Associate Professor Ananda noted the applicant had had left foot surgery to correct a bunion and possibly osteoarthritis. The applicant continued to be troubled by widespread soft tissue pain which was out of proportion to the degree of osteoarthritis present.
34. In an NDIS form dated 20 April 2024,[71] Associate Professor Ghahreman listed diagnoses of fibromyalgia, depression and anxiety, polyarthropathy (affecting the shoulder, foot and knee), spinal spondylosis (causing lower back and neck pain, and canal stenosis), plantar fasciitis, arthritis of the foot and migraines. Associate Professor Ghahreman said that the impairment would be lifelong.
35. He said the applicant had undergone anterior cervical discectomy and fusion and foot surgery (which appears to be for bunions), and been treated with hydrotherapy, physiotherapy, spinal injections, remedial massage. She was awaiting a knee arthroscopy but would continue to have pain from spinal degeneration.
36. Associate Professor Ghahreman recommended psychology or psychiatry, physiotherapy, hydrotherapy, acupuncture, and assistance with domestic activities.
37. On 26 April 2024,[72] Associate Professor Ananda noted the applicant was using a crutch because of left foot pain. She would see her foot surgeon the following week. The applicant's main issue was ongoing soft tissue pain and osteoarthritis. Associate Professor Ananda said she had re-referred the applicant to the OACCP at Westmead Hospital and she would benefit from hydrotherapy.
38. On 14 May 2024,[73] though, the Westmead Hospital said it could not re-enrol the applicant as she had previously attended the program in 2022-23, finishing hydrotherapy in May 2023, and there was no current capacity to offer the program to previous participants.
39. At the hearing, the applicant thought she had participated in hydrotherapy more recently than May 2023 and perhaps as recently as December 2024. Mr Miszczuk understood in August 2024 that she was attending hydrotherapy at that time, or at least had done so recently. She recalled doing some walking in water after her November 2023 procedure. She had not explored any alternative to hydrotherapy, like using the local public pool.
40. In a report dated 13 September 2024,[74] Associate Professor Ananda said, against, that the applicant had widespread soft tissue pain related to fibromyalgia and no clinical evidence of inflammatory arthritis. She increased the dosage of Neurontin.
41. On 27 September 2024,[75] Associate Professor Ananda said:

I had a long discussion with her reassuring her that she does not have any radiological evidence of an inflammatory arthropathy and this is consistent with the clinical findings and normal inflammatory markers. She was getting confused about the intensity of her symptoms and equating that to inflammation. I have explained to her that that is not the case. It is imperative that she embark on some regular exercises and continue hydrotherapy and also address the significant stress in her life. I have advised make more frequent contact with her psychologist. She has tolerated the increased Neurontin.

1. In her report of 14 November 2024,[76] Associate Professor Ananda said the applicant had had treatment consistent with best practice, but the cost of physiotherapy, hydrotherapy and psychology had been prohibitive. She was taken gabapentin, paracetamol and meloxicam. In Dr Ananda's view, regular physiotherapy, hydrotherapy and psychological, and some psychiatry, would collectively reduce joint pain, improve function and improve mental wellbeing.
2. In a report dated 22 November 2024,[77] Associate Professor Ghahreman said he had seen the applicant for spinal spondylosis, but she also had polyarthropathy, neck and lumbar pain, shoulder pain, knee pain, and depression and anxiety. The applicant's spinal disc herniation and nerve root compression had been resolved through surgery but there was continued arthropathy limiting the applicant's ability to carry, cook and care for herself. The applicant was not a candidate for further neurological investigation. She would benefit from ongoing mental health care, physiotherapy and hydrotherapy for maintenance. Associate Professor Ghahreman noted he had previously advised the applicant about the importance of exercise.
3. On 12 February 2025,[78] Associate Professor Ananda said:

She was reviewed earlier than planned because of ongoing chronic pain. Unfortunately, [the applicant] is having a hard time trying to understand the connection between the depression, significant life trauma, stress and chronic pain. She reports widespread areas of soft tissue and intermittent joint pain. The extra dose of Neurontin has not made a difference to her pain. She is still on the waiting list for the Westmead pain clinic. She does not do any exercise and is also experiencing spasms. She has been taking excessive magnesium as well. ...

I have asked her to check with Westmead pain clinic when her appointment will be. In the meantime, I have increased Neurontin to 300 mg tds. It is imperative that she also embark on exercise. I have reduced Magnesium.

1. As above, in his report of 23 April 2025,[79] Dr Shekarchi said that recommended treatments could help manage symptoms but would not cure the underlying conditions.
2. In a report dated 2 September 2025,[80] Associate Professor Ghahreman said that the applicant had exhausted all treatment that was reasonable for her lower back. Symptoms were permanent and irreversible. Lumbar spinal surgery was not advisable due to multisegmental pathology. Associate Professor Ghahreman suggested that the report be tendered in this application, and he 'strongly supported' NDIS services for the applicant.
3. The respondent, in its RSFIC, said that while the applicant's fibromyalgia and osteoarthritis were likely to be permanent, the evidence did not establish that the applicant had undergone all appropriate treatment to remedy the resulting impairments. The RSFIC points to Dr Shekarchi's treatment recommendations in his 14 September 2023 report and Associate Professor Ananda's recommendations for regular physiotherapy and hydrotherapy in her 14 November 2024 report.
4. The applicant described at hearing a deterioration in her condition since a number of the reports in evidence were generated. She said that until about 2 years earlier she was able to get to places that were reasonably close by, by car and train. She had not driven since 2024.
5. As above, in closing submissions, counsel for the respondent drew attention to the applicant's sporadic and inconsistent engagement with treatment.
6. Clearly, the applicant is impaired by pain at a number of anatomical sites. Again, the question arises as to whether that impairments are, or are likely to be, permanent.
7. It does not appear that the applicant's impairments arise to a significant extent from spinal pathology. The applicant's cervical nerve root impingement has been remedied but her symptoms continue. Although radiology has demonstrated degenerative changes, those do not appear to account for the applicant's pain syndrome. As Associate Professor Ananda has repeatedly said, the applicant's symptoms are explained by soft tissue mechanics and not any arthropathy seen on radiology or any inflammatory arthritis. That is, the applicant has fibromyalgia and chronic pain. The apparent lack of improvement in the applicant's condition following neck surgery is consistent with Associate Professor Ananda's diagnosis.
8. There may be separate pathology affecting the knees (osteoarthritis), elbows (epicondylitis) and hips (the applicant's more recent complaint of pain). I accept the applicant's evidence, which is consistent with Associate Professor Ananda's reports, that a knee replacement is no longer a current recommendation.
9. Whatever the proportion of neck, elbow and hip symptoms that results from pathology demonstrable by radiology rather than fibromyalgia, in respect of the whole constellation of musculoskeletal/chronic pain conditions, the evidence is consistent. The applicant needs regular physiotherapy, hydrotherapy and commitment to exercise. Although the applicant went to the gym for a time, appears to have participated in hydrotherapy at times, and saw Ms Qing for physiotherapy in 2023, none of those things have occurred with any apparent regularity. On Associate Professor Ananda and Dr Shekarchi's account, more regular psychology would also help. More than anything, the applicant's treating specialists appear to have repeatedly expounded the necessity for the applicant to consistently engage in an exercise regime and, other than what seems to be a short period attending a gym to use the treadmill, that has not tended to happen.
10. The respondent's submission here must be accepted: the medical evidence consistently indicates that there is scope for improvement in the extent of the applicant's musculoskeletal impairments if she was to engage in more regular therapy and exercise.
11. I note this is a different conclusion to the one I have reached in relation to the applicant's psychosocial impairments, despite the applicant having suffered from both mental health and pain symptoms for a very long time. There are 2 principal reasons for that. First, with the psychosocial impairments, there is at least mixed evidence on the question of whether improvement in the applicant's impairments is likely. There is more consistent evidence in respect of the applicant's musculoskeletal impairments that exercise and other things would help. Second, on a wide view of evidence, the applicant has tried treatments for her mental health condition (different antidepressant medications, cognitive behavioural therapy and the like) that have been unsuccessful, which suggests that repeating that treatment would not have the effect of remedying the impairment. For her chronic pain, though, the evidence is that exercise treatment has tended to be successful, but it has not been committed to.
12. I find that the requirement in paragraph 24(1)(b) is not met in relation to the applicant's musculoskeletal and chronic pain impairments.

1. The applicant has complained of headaches about as long as she has been concerned about her pain symptoms.[81] On 8 July 2019, she told her general practitioner that although she had had migraine headaches in the past, she was experiencing headaches of a different character. On 17 July 2019, she was referred to neurologist Dr Elizabeth McCusker.[82]
2. On 6 October 2020,[83] Dr Katelaris (in the same practice as Dr McCusker) recommended referral to a neurosurgeon for review of spinal pathology and that the applicant continue to take Maxalt, which had previously been prescribed.
3. In a report dated 10 November 2020,[84] Dr Ruhaida Daud, neurologist, recorded that the applicant had migraine 2 days a week, as well as neck and back pain. Dr Daud prescribed Inderal.
4. In a report dated 22 February 2013,[85] Dr McCusker recorded that the applicant had been having headaches since she was 16 years old. Dr McCusker diagnosed migraine headache and recommended strategies to manage the problem and other further treatment if required.
5. On 26 September 2013,[86] Dr McCusker said that the applicant's headaches had improved. She thought the applicant might have early diabetes or glucose intolerance.
6. In his report of 14 September 2023,[87] Dr Shekarchi said the applicant had seen a specialist for her migraines but might benefit from Botox.
7. In his report of 30 August 2024,[88] Mr Miszczuk recorded that the applicant was still taking Maxalt for migraine, on an as-required basis.
8. Although it is clear enough that the applicant continues to suffer from migraine, and 'chronic migraine' was one of the many conditions identified by Dr Shekarchi in his report of 20 September 2024,[89] it is not a condition identified in connection with the applicant's application to access the NDIS,[90] and does not appear to have been given much attention by the parties thereafter. It is not mentioned in the RSFIC.[91]
9. The applicant bears a practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that each of the access criteria are met.[92]
10. The difficulty I come to, in examining whether the applicant's neurological impairments are, or are likely to be, permanent, is a lack of evidence that the applicant has undergone the available and appropriate evidence-based treatments that would be likely to remedy the impairment. The applicant does not appear to have seen a specialist since about 2013 and there is no explicit discussion in reports from that time about stabilisation or prognosis. The clearest evidence on point is that the applicant might benefit from Botox, treatment she has not undergone.
11. On the basis of that evidence, I do not find that the in paragraph 24(1)(b) is met in relation to the applicant's neurological impairments.
12. In summary, then, the requirements of paragraph 24(1)(b) are met, but only in relation to the applicant's psychosocial impairments.

(c) Do the impairments result in a substantially reduced functional capacity to undertake one or more activities?

1. As above, the next requirement is that the impairments result in substantially reduced functional capacity to undertake at least one of 6 identified activities.
2. Because the disability requirements require that all the criteria be met in relation to an impairment or impairments, the reference to 'the impairment or impairments' in paragraph (c) can be taken to be a reference to only those impairments that are, or are likely to be, permanent. That is, for reasons above, the applicant's psychosocial impairments. There is no use in determining whether the applicant's other impairments result in a substantially reduced functional capacity because those impairments cannot ground access to the scheme.
3. On the issue of substantially reduced functional capacity, the Rules provide:

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. Rule 5.8 operates as a deeming provision.[93] That is, if any of rule 5.8(a), (b) or (c) are made out, the person is taken to have substantially reduced functional capacity. If not, it remains to be determined whether the person has substantially reduced functional capacity on the ordinary meaning of those words.
2. Here, the legislation calls for a functional, practical based assessment of what a person can and cannot do.[94] That the enquiry is as to what a person can do, and not what a person is prepared to do, was discussed by the Full Federal Court in Lampard, which was handed down shortly after the hearing in the present matter. The Court said:

[50] The distinction between functional capacity and functional performance is fundamental. ... [51] It follows that the task both for ... the ART is to maintain a distinction between a person's functional capacity to carry out a task or action and their functional performance of that task for the purposes of assessing whether s 24(1)(c) has been met. Functional performance is relevant to the s 24(1)(d) enquiry and may be impacted by, as French SM helpfully put it,[95] "personality, personal characteristics, and various extrinsic factors in the legal, social and built environment", but that is not relevant to the s 24(1)(c) enquiry as to capacity.

1. 'Substantially', in this context, implies a high threshold for the test to be met. It is not enough that there is a demonstrable disability, or a reduction in functional capacity that is less than that high threshold.[96]
2. The 'Applying to the NDIS' guideline[97] sets out the content of each of the 6 activities as follows:
   • 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.
   • Socialising[98] - 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.
   • Learning - how you learn, understand and remember new things, and practise and use new skills.
   • 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.
   • 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.
   • 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-to-day 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.
3. As I said recently in another decision,[99] I am satisfied that those are appropriate descriptions of each of the activities set out in paragraph 24(1)(c). Those descriptions help to consider each of the 6 activities as conceptually separate from one another. The question is whether there is substantially reduced functional capacity in the whole of the activity, not whether there is a substantially reduced functional capacity to do a particular task or set of tasks that might form part of the activity.[100]
4. It is sufficient, in order to make out the requirement in paragraph 24(1)(c), that a person has substantially reduced functional capacity in just one of the 6 identified activities, and so it is necessary to address each in turn.[101]
5. I have set out the evidence about the applicant's functional capacity - particularly as it relates to her psychosocial impairment - before coming to look at whether there is a substantial reduction in functional capacity in each of those 6 activity areas.
6. For context, in Ms Kiraz's report of 13 March 2025,[102] she outlined the applicant's living situation as follows, which is consistent with the applicant's own oral evidence:

Khadijah currently lives with her two adult children ... however, she reports a strained relationship with both. While they remain physically present in the home, there is minimal communication and no practical support offered to Khadijah. She reports that her children "are physically here, their stuff is here, but they don't talk to me or help me, they leave early in the morning and return late at night" limiting any interaction. ...

Khadijah receives the Disability Support Pension through Centrelink and has been largely unable to maintain employment due to the combined impact of her mental health and chronic pain conditions. Although she attempted to engage in the workforce following her divorce, she was unable to sustain this due to her disabilities. Khadijah completed Certificate III in Disability and Aged Care; however, she was unable to complete the work placement component due to her limited physical and emotional capacity. She also attempted a six‑month course for a Retail Assistant position but was unable to complete this due to difficulty sitting or standing for long periods and challenges with lifting. These experiences highlight her severely limited functional capacity for employment and economic participation.

Khadijah reports limited informal family or community supports. Although she has two sisters, Khadijah reports that she rarely sees them due to their own personal challenges, and she feels disconnected from extended family. Her primary informal support is her niece, Noushi, who acts as an informal carer. However, Noushi's availability is inconsistent due to her own study and employment commitments, and she is unable to provide regular care. When available, Noushi assists approximately five hours a day, 5-6 days per week, supporting Khadijah with essential tasks such as community access, meal preparation, laundry, and showering. This informal care arrangement is unstable and insufficient to meet Khadijah's daily care needs, particularly as Noushi is seeking full-time employment, which will likely reduce her capacity to assist further.

1. At the hearing, the applicant confirmed that she lived with her 2 children, at least 'on paper' as there was little contact between them. The applicant has 2 sisters in Australia. Noushi is the daughter of a third sister, who lives in Iran. The applicant confirmed she had previously studied a TAFE course that would enable her to work in aged care. She had felt better at that time, and had sometimes driven to TAFE and sometimes taken a train.
2. In the NDIS application form completed on 25 October 2022,[103] Dr Shekarchi said that:
   • the applicant's mobility and capacity for self-care were restricted due to pain, and
   • the applicant's capacity for socialising was impacted by stress, anxiety and depression.
3. Dr Shekarchi did not identify any substantial reduction in functional capacity for communication, learning or self-management.
4. Dr Coolican completed an NDIS supporting evidence form on 10 August 2023.[104] He also identified mobility problems due to a combination of musculoskeletal problems and fibromyalgia. As to social interaction, the applicant had a carer helping her with social interaction and had poor social confidence (partly related to having limited English). There was a need for assistance with self-care (showering and bathing) but Dr Coolican did not identify the cause of that need.
5. Dr Coolican did not identify any issue with learning or self-management. There was a need for assistance with communication, but it related to a language barrier and not any impairment.
6. Associate Professor Ananda completed the same form on 16 August 2023,[105] and gave much the same responses as Dr Coolican. Associate Professor Ananda noted in relation to self-management that the applicant took on her own financial management.
7. Associate Professor Ghahreman also completed the form, giving nearly identical answers to Dr Coolican and Associate Professor Ananda.[106]
8. Ms Vahdani completed an NDIS 'evidence of psychosocial disability form' on 24 August 2023.[107] Ms Vahdani said, of the 6 activities:
   • Social interaction: the applicant cannot maintain friendships and harmonious relationships. She gets irritated and angry easily and finds it hard to cope with her emotions.
   • Self-management: the applicant finds it difficult to make decisions due to a high level of anxiety. This impacts her capacity to solve problems, particularly involving emotional and psychosocial difficulties.
   • Self-care: the applicant needs assistance with personal care due to depression and chronic pain associated with fibromyalgia and a neck injury. She needs help with cleaning, cooking and attending to self-care.
   • Communication: at times, the applicant can misconstrue what others say and mean, and can become hurt easily.
   • Learning: poor concentration and memory affect the applicant's ability to learn and practice new skills - she cannot manage a course of study.
   • Mobility - there are major musculoskeletal issues which affect her physical mobility.
9. On 22 May 2024,[108] Mr Attai said that due to the applicant's illnesses and lack of support she was unable to participate in activities that would be beneficial for her such as social programs, community programs, skills-development programs and hobbies such as music and painting workshops. In a supplementary report dated 16 April 2025,[109] Mr Attai said there was a substantial reduction for functional capacity in self‑care and mobility, but was apparently not asked about the other domains.
10. In a letter dated 7 September 2024,[110] Seyedeh Noushin Abedini Kafshgari (Noushi, the applicant's carer), said the applicant needed help with personal care, domestic tasks, appointments, medication management, gardening and community participation.
11. In her report of 14 November 2024,[111] Associate Professor Ananda said that the applicant had depression and brain fog, which affected her concentration and interactions with other people. She experienced emotional lability including crying and anger. The applicant had limited social contact with other people and was stressed and lonely. She was highly stressed and unable to interact confidently with people, which was negatively affecting her interactions.
12. In her report of 13 March 2025, Ms Kiraz said:
    • The applicant mobilised slowly, demonstrating a fear of falling and reduced confidence. Her psychological symptoms, such as hypervigilance, fear of injury and diminished self-efficacy inhibited her capacity to mobilise safely without support. There had been multiple falls in the home environment. The applicant had stopped driving due to back pain.
    • The applicant was reluctant to engage in some self-care activities due to depressive symptoms and low motivation, compounded by her physical limitations. She had difficulty dressing due to pain and fatigue. Sleep was significantly impaired.
    • The applicant often forgot to take her medication, though that was mitigated by the involvement of her carer. She reported significant stress and anxiety when dealing with financial management tasks, especially if she had to do so over the phone. She could become overwhelmed and unable to cope with tasks requiring decision‑making or problem-solving.
    • The applicant attempted grocery shopping with the help of her carer but faced significant challenges doing so independently because of psychosocial limitations. Her carer often completed shopping for her.
    • The applicant was socially isolated. She did not want to go out and preferred to remain at home, reflecting low motivation and avoidance behaviours. She was observed to cry during the assessment and her frustration and anxiety were triggered by things not going to plan. There was impaired emotional regulation in response to unexpected events or stress, including in social interactions. The applicant described feeling emotionally isolated and unsupported, particularly in her relationship with her children, who rarely interacted with her. She had a reduced ability to engage in healthy, supportive relationships and was socially withdrawn.
    • The applicant's psychosocial limitations were more debilitating than her physical symptoms.
13. Mr Miszczuk, in his report of 30 August 2024,[112] said:
    • There was no need for assistance with communication because of an impairment (like the treating practitioners, Mr Miszczuk noted the applicant needed an interpreter, though she had been able to make herself understood in English during a phone call).
    • There was a need for assistance in the other 5 domains.
    • The applicant had a 'partial capacity for independently accessing community-based activities' which she would be able to build on, reducing her reliance on a carer. She had some long-term friends she had met as a refugee in Turkey. Community engagement was limited. She preferred to be accompanied in the community by a carer but reported being able to drive and access public transport to attend weekly hydrotherapy sessions alone. She managed independently if her carer was not available.
    • The applicant had 'modified independence in learning tasks', which means that she could use a modified technique to complete tasks and maintain independence. There were intermittent periods of reduced concentration and attention. She had been able to participate in TAFE study in about 2020 or 2021 but her capacity for learning could be impacted by impaired motivation and other symptoms.
    • The applicant also used modified techniques for dressing and grooming tasks, largely related to having limited energy to attend to things. Mr Miszczuk indicated the applicant would be able to improve her capacity and reduce reliance on a carer over time.
    • The applicant mobilised with a crutch, though her dependence on it was erratic. She was able to drive at that time, though apparently did so rarely.
    • The applicant, on Ms Vahdani's evidence, had difficulty making decisions and problem-solving, and her propensity for fatigue also reduced her capacity. Nonetheless, she was able to organise her own medical appointments, management her finances, budget, arrange for commercial services (including occasional gardening) and pay bills.
14. Mr Miszczuk recorded that the applicant had a greater capacity than was indicated in the medical evidence. That opinion appears to derive from a combination of the applicant having been able to participate in a TAFE course a few years earlier, from his observations about inconsistent dependence on the crutch, and from 'at times vague and contradictory' answers to questions asked of her.
15. Mr Miszczuk gave evidence in connection with his report. Counsel for the respondent put to him, in relation to social interaction, that he had not known that the applicant had been taken out for coffee by her sisters on occasion and spoke to her children on the phone every few days. He was asked whether that would change his description of the applicant's capacity for social interaction and he indicated it would depend on what supports were available and the frequency of engagement.
16. The applicant provided a statement of lived experience (undated) in connection her Tribunal application.[113] She said, amongst other things:
    • She could walk for only 4 to 5 minutes without taking a break. She relied on a walking stick. She owned a car and could drive short distances, which she did about twice a month.
    • She did not have friends and had trouble socialising. She would go out for coffee or a meal if someone took her but that happened 'rarely'. She might attend a club or restaurant a couple of times a year.
    • She required assistance with self-care due to the risk of falls and a need to be reminded and encouraged to attend to some things.
    • She tried to manage her own finances but sometimes had help from her carer. She needed to be reminded to take medication almost every day.
    • She sometimes had problems concentrating and expressing herself clearly.
    • Although she had previously studied and tried to work, it was now difficult to focus properly so as to learn new things.
17. The applicant gave evidence at the hearing that she used email and social media. She did not tend to speak with any friends but spoke to her sisters on occasion, usually on the phone. The applicant has a dog and said she could manage the feeding herself but needed help with bathing. She does not walk the dog. She could not remember the last time she prepared a proper meal.
18. In the RSFIC, the respondent said there was not a substantially reduced functional capacity in any one activity.
19. I come, then, to examine the question of whether there is a substantial reduction of functional capacity in each activity, both by reference to rule 5.8 and the ordinary meaning of the statutory language.
20. I am readily satisfied that there is no substantial reduction in functional capacity in mobility, communication, learning or self-management, resulting from the applicant's psychosocial impairments (by reference to rule 5.8 or otherwise). The applicant's mobility problems stem from her musculoskeletal and chronic pain impairments. There are no notable communication difficulties other than the applicant's difficulties with the English language, which are not related to any impairment.
21. The applicant's learning and capacity for self-management are impaired by reduced concentration and fatigue, but that is no more than a minor reduction where the applicant manages her own finances, has previously been able to complete a TAFE course (though I accept her function now is not what it was then) and was able to concentrate through a 2-day Tribunal hearing.
22. The other 2 activities require more detailed consideration.
23. Turning to social interaction, I note the applicant is largely housebound, preferring to leave the house rarely and only with her carer, when she has to attend to shopping or the like. She is occasionally taken out by someone to have coffee, as her sisters had done shortly before the hearing. The applicant does not appear to have any regular social engagement and does not participate in any community activities. As above, though, the question is what she can do, not what she prefers to do, when it comes to making and keeping friends, interacting with the community, and coping with feelings and emotions in social situations.
24. On the evidence of the applicant's treating practitioners, the applicant cannot maintain friendships and harmonious relationships. In social interactions, she finds it hard to cope with her emotions. The applicant has poor social confidence and is impeded by stress and anxiety. Her carer helps her with community interaction.
25. In my view, rule 5.8(b) is made out: on the face of the evidence, the applicant usually requires assistance, including physical accompaniment, to participate in the range of tasks that make up social interaction. That is not to say that the applicant is unable to participate in social interaction (and for that reason, rules 5.8(a) and (c)) are not made out). I accept that she interacts with her sisters, children and medical practitioners, and there may be somewhat more social interaction than Mr Miszczuk understood. Nonetheless, because the impairment described by her treating practitioners, she usually requires assistance.
26. If I am wrong about the application of rule 5.8(b), I am nonetheless satisfied that there is a reduction of functional capacity in social relationships. As I said in King,[114] the capacity required to socially interact with a family member and to make and keep a friend are very different. It does not follow that because the applicant is occasionally taken out of her house by her sisters for coffee that she does not have a reduced capacity to engage in the community, with non-family members, for social, pleasurable or cultural reasons.
27. Where the applicant is largely housebound (for a combination of reasons, and I am cognisant that her preference is irrelevant here), avoidant of social interaction, cannot maintain friendships, has trouble with emotional regulation and is largely dependent on a carer for social interaction beyond the immediate family, I am satisfied that the reduction in capacity is substantial.
28. It follows that the requirement in paragraph 24(1)(c) is made out.
29. It is unnecessary to consider whether there is a substantial reduction in functional capacity in the remaining activity, self-care.

(d) Do the impairments affect the applicant's capacity for social or economic participation?

1. The respondent accepts that this requirement is met. I agree. The applicant's capacity for social participation is clearly affected by her psychosocial impairments, as set out above. Her capacity for economic participation has been affected by her psychosocial and other impairments. She cannot work and receives the disability support pension.

(e) Is the applicant likely to require support under the NDIS for her lifetime?

1. In relation to this requirement, the Guideline says:

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. ... [You may have an impairment which is caused by a chronic health condition. Many chronic health conditions are most effectively managed or remedied through medical management through the health system. If this is the case, we may decide that you don't have a lifetime need for support under the NDIS.

1. In relation to the support that the applicant might derive from the NDIS for her psychosocial impairments, Ms Kiraz said:

With NDIS funding for personal care, Khadijah will receive the necessary support to maintain basic hygiene and feel empowered in managing her own care. Community access support is also essential, as her mental health barriers prevent her from engaging in community activities or attending appointments independently. Support in these areas will alleviate psychological strain, allowing Khadijah to access the community, attend appointments, and participate in social interactions, thus reducing her isolation and improving her overall quality of life. Providing funding for these services will allow Khadijah to address her psychosocial limitations, ensuring she has the necessary resources to improve her mental and emotional wellbeing and work towards a more independent and fulfilling life.

1. I would not prefer Ms Kiraz's opinion over other evidence where the report was prepared for the purposes of supporting the applicant's application for access to the NDIS and not in the capacity as an objective, expert witness.[115] It is, though, consistent with other evidence.
2. Mr Attai in his report of 22 May 2024 noted a need for the applicant to learn about coping mechanisms. That is, capacity building and not just symptomatic treatment.
3. Mr Miszczuk, in his report, noted the applicant's reliance on current supports (especially on her carer, Noushi) and noted the value of capacity-building supports especially in gradually reducing that reliance.
4. The respondent says (in both the RSFIC and closing submissions made at the hearing) that this requirement is not met because the treatment recommendations made by the applicant's treating practitioners are for therapies and interventions available in the public health system, including medicare-subsidised allied health and potentially referral to a pain clinic.
5. That is largely true, and it may be that the applicant's treating practitioners have unrealistic expectations of the sorts of supports the NDIS might provide for the applicant. It is not the case, though, that the supports the applicant is likely to need are only those available in the public health system.
6. The applicant has a permanent psychiatric condition, causing permanently impaired mood and motivation. The evidence is that she would benefit from capacity building, including long-term psychological assistance and continued support worker assistance.
7. Those are things the NDIS might provide. Given the history of the applicant's depression and the treatment she has had historically, there is no reason she would not require support for her lifetime even if, as Mr Miszczuk says, the applicant's dependence on supports might gradually decrease over time.
8. I am satisfied, then, that the requirement in paragraph 24(1)(e) is made out.

1. As I am satisfied that each paragraph 24(1)(a) to (e) is made out, the disability requirements are met.
2. It follows that the applicant meets the criteria for access to the NDIS. The decision under review will be set aside.

Does the applicant meet the early intervention requirements?

[2] Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.

[10] The applicant's social history is set out in a number of reports, for example at A7 and T3.

[18] The report, at O2, p 282, has an incomplete date. It appears amongst documents that are in roughly chronological order, and from its placement I infer it is from about 2017.

[54] O7, p 530. The letter is addressed 'to whom it may concern' but appears to address Centrelink criteria.

[81] See progress note of 5 July 2012, O2 p 157.

[92] Foster and National Disability Insurance Agency (NDIS) [2025] ARTA 718, endorsed by the Full Federal Court in National Disability Insurance Agency v Lampard [2025] FCAFC 139 at [31].

[93] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [67] and [77].

[94] National Disability Insurance Agency v Foster [2023] FCAFC 11 at [64].

[95] In Foster and National Disability Insurance Agency (NDIS) [2025] ARTA 718 at [82].

[96] Garcia Albiol and National Disability Insurance Agency [2024] AATA 496 at [68].

[98] The statutory language is 'social interaction' and not 'socialising'. Where the description of the content of the activity is consistent with social interaction, I do not think there is a meaningful distinction.

[99] King and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 2406 at [47].

[100] Nika and National Disability Insurance Agency [2021] AATA 2127 at [248].

[106] T18 - the form is undated but likely to be from around the same time. The applicant referred in her oral evidence to Dr Coolican being unfamiliar with NDIS forms and asking to see what Dr Shekarchi had done as an example. It seems more likely that Dr Coolican's form was copied by the other specialists, but nothing turns on it.

[115] Counsel for the respondent made the same point about some things said by Associate Professor Ghahreman.