1. The Applicant seeks a total of 26 hours of psychology supports per year. She currently receives funding for 12 hours. She also receives 2 hours cleaning support per fortnight and has previously received funding for occupational therapy (OT).
2. As part of her application, the Applicant contends that impairments arising from an additional condition, namely Ehlers-Danlos Syndrome (EDS) - Hypermobility subtype (hEDS) meet the disability or early intervention criteria in sections 24 and/or 25 of the NDIS Act. The condition is described as a:

lifelong connective tissue disorder characterised by generalised joint hypermobility, joint instability, pain and hyperextensible skin that can lead to joint subluxations, dislocations, sprains and other injuries. Individuals with this disorder can experience both acute and chronic pain that interferes with daily life due to joint instability.[4]

3. If the Applicant meets the disability or early intervention criteria in respect of her physical impairments, she then seeks the following supports which she says are reasonable and necessary pursuant to section 34(1) of the NDIS Act and relevant rules:

(a) 52 hours of physiotherapy > > (b) Manual wheelchair and smart drive power assist - $26,047 > > (c) Electric lift recliner - $3,800 > > (d) Stair lift - $6,000 > > (e) Sports wheelchair - $12,500 > > (f) Rental equipment and repairs - $4,000 > > (g) Home modifications consultation - $612 > > (h) 8 hours support worker assistance per week (4 hours at Saturday rate and 4 hours at Sunday rate) - $45,243 > > (i) 50 hours of Occupational Therapy (OT) per year > > (j) 38 hours of house cleaning per year (2 hours per week) > > (k) House or yard maintenance totalling $2097 per year > > (l) Transport of $3,400 per year > > (m) Support Coordination level 2 totalling $5,007 per year.

1. The hearing was conducted by video over 6 days. The Applicant represented herself, having previously received legal advice and the assistance of a disability advocate. Ms Amy Douglas-Baker of Counsel represented the Respondent. The following witnesses gave oral evidence at the hearing:[5]

(a) the Applicant > > (b) the Applicant's husband > > (c) Occupational Therapist (OT), Ms CL > > (d) Provisional Psychologist, Ms IG > > (e) OT, Ms LB > > (f) Rheumatologist, Dr Herman Lau

2. The Tribunal will also refer to several other practitioners throughout this decision including:

(a) Rheumatologist, Dr Tim Lu, > > (b) Rheumatologist and pain specialist, Dr Raj Anand > > (c) Orthopaedic surgeon, Dr Anthony Leong > > (d) OT, Ms LG > > (e) Physiotherapist, Mr JW > > (f) Physiotherapist, Ms AL > > (g) General Practitioner (GP), Dr ES > > (h) Psychiatrist, Dr RB > > (i) Previous Provisional Psychologist, Ms CO

3. In arriving at its decision, the Tribunal has considered all the written evidence provided in the joint hearing bundle (JHB1), two supplementary bundles containing summonsed documents (JHB2 and JHB3), the Respondent's access records (JHB4) and the oral evidence given at the hearing. The following document was also admitted into evidence:

(a) Invoice of wheelchair purchase dated 16 September 2023.[6]

4. The Tribunal will refer to the evidence that is directly relevant to the determination of this matter, including an assessment of the weight that should be given to the evidence. The Tribunal's findings are based on consideration of all the evidence. For reasons of brevity and clarity, not every piece of evidence is referenced in discussion of each issue or finding. It is inevitable that some important pieces of evidence appear in later sections of the decision, often in relation to another issue and/or in support of another finding.

(a) (b) (c) (d) (e) (f) (g) (h)

(i) the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;[7] and

(j) (k) (l) (m) (n) (o) (p) (q) (r) (s) (t) (u) (v) (w) (x) (y) (z) (aa) (bb) (cc) (dd) (ee) (ff) (gg) (hh)

(ii) the scope of the Tribunal's jurisdiction is determined by reference to the scope of the internal reviewer's powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.[8]

1. The relevant provisions under the new Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.

1. On 13 February 2025, following a request from the Respondent on 13 January 2025, the Tribunal issued several summons to the Applicant's past and present treating practitioners. On or about 10 March 2025, the summons material was released to the Applicant for first inspection. On 21 March 2025, the Applicant wrote to the Tribunal to advise that she did not oppose the release of the summons documents to the Respondent, except for the psychological records from Ms CO. On 24 March 2025, the Respondent wrote to the Tribunal indicating it did not press for release of those psychological records. The balance of documents were released to the Respondent shortly thereafter.
2. Further summons were issued to the Applicant's other practitioners on 16 April 2024. These documents were released to the Applicant on the 30 April and 1 May 2025. A final set of documents, returned under the second summons, were released to the Applicant on the 5 May 2025, as discussed further below.[9]
3. On 5 May 2025, the fourth substantive day of hearing was unable to proceed because the Applicant's provisional psychologist, Ms IG was unavailable to re-attend to complete her evidence. The Tribunal held a directions hearing in the morning to discuss several procedural matters with the parties. By this time, the Applicant had reviewed material produced under summons from several practitioners including documents from Ms IG which had been released to her on 30 April 2025. The Applicant indicated her objection to the release of some of these documents. The Tribunal noted there was additional material not yet released to the Applicant. The Applicant indicated she was confident in her ability to review and provide grounds for any objection later that day. These documents were released to the Applicant and the conclusion of the directions hearing.
4. For reasons of expediency, an interlocutory hearing was listed later that same day, in the afternoon, so that a decision could be made prior to the next substantive hearing day on 9 May 2025, when Ms IG would attend to complete her evidence. An OT, Ms LB, and Rheumatologist, Dr Herman Lau were also due to give oral evidence on 9 May 2025.
5. The Tribunal explained the legal principles informing the issuing of summons and inspection of documents, considered by Deputy President Forgie in Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565:

[24] The fact that any applicant must face when applying for review of a decision in the Tribunal is that things that are personal to him or to her must be revealed if they are relevant to the issues raised by his or her application. This case provides a very clear example. Mr Panagiotou may well regard matters relating to his health as personal to him as do most, if not all, people. That does not make them irrelevant to the issues that must be decided on his application. Mr Panagiotou cannot control what the Tribunal regards as relevant and nor can TNT. Only the Tribunal can do that. > > [25] What the Tribunal regards as relevant when it is actually reviewing a decision may be different from what it regards as relevant when it issues a summons. When reviewing a decision, it must have regard only to evidence or material that it actually regards as relevant. When it is issuing a summons for documents or material, it requires only that they appear to have relevance to the issues to be decided. That is, it may issue a summons requiring their production if they can reasonably be expected to throw some light on the issues that will have to be decided in reviewing the decision.

6. The Tribunal then stood the matter down to review the materials and to allow the Applicant time to raise any objection. The Applicant provided written submissions via email prior to the resumption of proceedings in the afternoon, indicating she was content for most of the new material produced under summons to be released to the Respondent for inspection. However, she objected to the release of some documents from her psychologist and two older psychological reports from 2015 and 2016 contained in records produced by her GP's clinic.
7. The Applicant's reasons for objection can be summarised as follows:
   • The release of full clinical records would be an unnecessary breach of privacy.
   • Targeted questions would have been a more appropriate means of obtaining further information from a treating psychologist.
   • Her treating psychologist had already provided a report outlining key concerns, limitations, strategies, interventions, and recommendations.
   • The older reports are confidential and unrelated to the issues before the Tribunal.
   • GP records date back to birth and these older records were irrelevant.
8. The Respondent submitted that the clinical records would assist the Tribunal to understand the nature and clinical content of the psychological sessions, noting a key question was whether the sessions were being used exclusively for capacity building purposes related to impairments arising from the Applicant's ASD, or used to address other issues including childhood trauma.
9. After reviewing the material, the Tribunal acknowledged to both parties that some of the material touched on very private and sensitive detail. The Tribunal also decided, that whilst involving matters that are sensitive to the Applicant, the records appeared to have relevance to the issues for determination by the Tribunal, particularly the request for increased psychology hours. For this reason, the Tribunal determined the records should be released to the Respondent.
10. The Tribunal applied one minor redaction to a clinical note out of an abundance of caution regarding possible legal professional privilege. The Tribunal indicated that had the GP records been sequential, it would have elected to remove much older records however time pressures did not allow such an exacting process. The Applicant was reassured of the Respondent's legal and ethical obligations in relation to all documents and that only relevant material would be considered by the Tribunal when making its decision.

Independent Medical Examination or Functional Capacity Assessment

1. At a telephone directions hearing on 18 October 2024, the Respondent indicated its intention to seek an independent functional capacity assessment (FCA) from an OT. At this hearing, the Applicant indicated her clear preference for the matter to be heard and determined as quickly as possible. It was determined that at least 3 functional capacity assessment reports were already in existence from 3 separate OTs.
2. On this basis, and in contemplation of the likely delays associated with the Respondent obtaining an independent FCA, the Tribunal decided to list the matter for hearing and invited the Respondent to address any concerns through the cross-examination process.
3. For reasons which will become apparent, towards the end of the hearing, the Tribunal raised the question of whether an independent medical examination or FCA would assist the Tribunal. The Applicant did not express a strong view either way. The Tribunal accepts the Respondent's submission that such an assessment would cause further delay and that it was not appropriate for such an assessment to be conducted at the conclusion of a hearing.
4. Had the Tribunal been aware of the issues with the assessments conducted by the Applicant's 3 OTs, it would have permitted time for an independent FCA and report. While such an assessment and report might have helped to answer certain questions or address gaps in evidence, the Tribunal notes that the Applicant filed a significant amount of material from the various practitioners who she chose to engage with, utilising funding provided by the Respondent for at least some of the OT assessments. The Tribunal has made its decision based on the available material before it.

1. The NDIS was established under the NDIS Act. Its objectives are set out in section 3 and its general principles guiding actions taken under the NDIS Act are set out in section 4.

1. The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth) came into force on 3 October 2024, changing several key provisions including sections 34 and the introduction of a new section 10.
2. Subitem 129(2) of Schedule 1 of the Amending Act provides that if a statement of participant supports is approved or varied on or after 3 October 2024, the amendments apply irrespective of whether the Applicant's plan came into effect before, or on or after commencement. Therefore, section 34 as amended applies to the Applicant's statement of participant supports and must be considered by the Tribunal.
3. The Applicant's request for external review by the Tribunal concerns whether additional psychology hours are reasonable and necessary pursuant to section 34(1) of the Act. As part of this application, she also requests several new supports arising from impairments connected to her hEDS diagnosis. By reason of the introduction of section 34(1)(aa), the Tribunal must consider whether the Applicant's hEDS impairments also meet the disability or early intervention requirements under sections 24 or 25 of the Act.
4. A question arises whether the Tribunal should apply the provisions of sections 24 or 25 of the NDIS Act that applied at the time the application was made to the Tribunal, or the Act as amended.
5. Under item 126 of Schedule 1 to the Amending Act, the amendments to section 24 and 25 apply to access requests that are made to the NDIA by a prospective participant on or after 3 October 2024. This means these amendments will only apply to access matters that are before the Tribunal if the prospective participant made an access request on or after 3 October 2024.
6. The Applicant's request for review cannot be properly considered an access request because she is already a participant. As the pathway to considering the provisions of sections 24 and 25 of the Act are through section 34(1)(aa), the Tribunal considers that the provisions of the Amending Act apply, including the amended operational guidelines.

(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 NDIS supports 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 NDIS supports 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 NDIS supports under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments. > > (4) Subsection (3) does not limit subsection (2). > > Note 1: The time at which a requirement in this section needs to be met is the time the matter falls to be determined. For an access request, that time is the time of considering the request (see paragraph 21(1)(c)). > > Note 2: National Disability Insurance Scheme rules may be made in relation to this section under subsection 27(1).

2. If the Applicant does not meet the disability requirements, the Tribunal must consider whether she meets the early intervention requirements set out in section 25 of the Act which relevantly states:

(1) A person meets the early intervention requirements if: > > (a) the person: > > (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 > > (iii) improving 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; and > > (d) the CEO is satisfied any early intervention supports that would be likely to benefit the person as mentioned in paragraphs (b) and (c) would be NDIS supports for the person. > > 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. > > Note 1: The time at which a requirement in this section needs to be met is the time the matter falls to be determined. For an access request, that time is the time of considering the request (see paragraph 21(1)(c)). > > Note 2: National Disability Insurance Scheme rules may be made in relation to this section under subsection 27(1).

3. Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that the NDIS rules may prescribe criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules in the Applicant's case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) ('the Access Rules').
4. In relation to the question of permanency of an impairment, the Access Rules state:

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.

5. In relation to substantially reduced functional capacity the Access 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.

6. The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal, unless there is good reason not to do so.[11] The relevant Operational Guidelines at time of decision include Becoming a participant - Applying to the NDIS (10 December 2024) (the Access Guideline) and Reasonable and Necessary supports (28 March 2025).
7. The Tribunal notes that in Mulligan,[12] Mortimer J held that the legislation pertaining to the access criteria requires "a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted".[13] The Full Court of the Federal Court of Australia in Foster also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[14]

1. A participant's plan must include a statement of participant supports (SOPS), approved in accordance with section 33 of the NDIS Act, and any relevant rules.
2. Further, section 34(1) of the NDIS Act provides:

(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);

(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

(f) the support is an NDIS support for the participant.

(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and

(b) a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.

(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).

1. The Tribunal must be positively satisfied about each of the matters set out in section 34(1) of the Act.[15] The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[16]
2. The Tribunal must consider any relevant rules including the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) ('the Supports Rules'), the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) ('the Transitional Supports Rules') and the National Disability Insurance Scheme (Getting the NDIS back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) ('the Miscellaneous Transitional Rules').

1. The Applicant told the Tribunal that she lives with her husband in a double-storey townhouse which they bought in early 2023. They recently got a dog and occasionally look after small animals on a short-term basis as part of volunteer work with a wildlife agency.[17]
2. The Applicant works as a national team manager for a large insurance company with case managers reporting to her from across the country.[18] She has knowledge of relevant workers' compensation legislation and provides technical support for complex workers compensation claims including litigated matters. She also has a role in audit and compliance. Industry mentors told the Applicant she needed to get some experience managing people to progress her career which led to her applying for her current role. The Applicant reported she has difficulty managing people; however, her manager provides additional support, for example, when she needs to have difficult conversations with staff.

I have difficulty answering questions on the spot, so I go into all of my conversations with my team with a pre prepared script and if it was to go off script I'd have a lot of trouble actually addressing what they need.[19]

3. The Applicant confirmed that she sought a diagnosis for ASD in 2023. She was also diagnosed with ADHD at this time. She had previously been treated for anxiety when she was younger and believes her autism symptoms were misdiagnosed as anxiety.

So growing up, I didn't have any means to get an ASD diagnosis, but it was when I moved out of living with my dad and into my own house, and I felt like I could look into it myself. And I realized that there was a lot of similarities in what I was experiencing compared to what autistic people experience. And I just wanted to find out whether that was correct... I was really struggling at the time with becoming overwhelmed with lots of things, like from a sensory perspective or communication, and I wasn't coping well with all of that overwhelm.[20]

4. The Applicant told the Tribunal she met her husband online and commenced a relationship with him about one or two months after first meeting. They were married last year and have been together for about 4 years. The Husband later explained the Applicant had a previous boyfriend who introduced her to snowboarding.[21]
5. The Applicant was unsure how she met the disability requirements with respect to the relevant activity or functional domain(s) under section 24(1)(c). The Respondent was also unable to confirm which activity involved substantially reduced functional capacity, which will be discussed further below.

1. The Applicant told the Tribunal she was referred to an orthopaedic surgeon in 2023 by her General Practitioner (GP) Dr ES because of joint instability and left knee and hip pain. She consulted with Dr Anthony Leong, an orthopaedic surgeon, in August 2023.[22] The Applicant explained that Dr Leong concluded there were no structural or acute conditions causing the instability problems and thought it could be linked to rheumatoid arthritis, hypermobility syndrome or EDS.
2. Dr Leong's letter to Dr ES dated 18 August 2023 noted "she was a long distance runner but despite stopping this and having 3 months of physiotherapy working on strengthening she continues to have left sided knee and hip pain... She can usually only last 15-20 minutes [of walking] before having to sit down".[23]
3. The Applicant then consulted with rheumatologist, Dr Tim Lu. He wrote to Dr Leong on 31 October 2023 advising that the Applicant has hypermobile joints and could be classified as classic Ehlers Danlos Syndrome (EDS), agreeing with Dr Leong that the Applicant "is suffering from arthralgia and myalgia". The Tribunal understands these terms to mean joint pain and muscle pain. Dr Lu reported she is "otherwise well systemically and reports no inflammatory swelling in the peripheral joints or autoimmune symptoms", "hand function and grip strength were normal". The Applicant had told him she was attending the gym 3 to 4 times per week. In terms of management, Dr Lu advised her to "avoid high impact-exercises" and suggested aqua aerobics and hydrotherapy as appropriate forms of exercise.[24] The Tribunal observes Dr Lu did not mention permanent impairments or the need for NDIS support.
4. The Applicant described how she responded at the time:

So I started reading into it then and then when I got my formal diagnosis, I read into it some more just so that I could understand more about the condition because I was told that it was something that I'm always going to need to manage.[25]

5. The Applicant then consulted with two EDS specialists. She first saw Rheumatologist and pain medicine specialist Dr Raja Anand on 30 November 2023. The Applicant claimed Dr Anand did not pay a lot of attention to the history she provided. In his letter dated 13 December 2023, Dr Anand noted that the Applicant was referred to him "for further management of hypermobile Ehler Danlos Syndrome in the context of chronic pain right ankle, left knee and hip". He opined the Applicant "clearly faces a number of ongoing physical and psychological challenges leading to her predicament" and that she "would benefit from physical therapies and mobility aids to help maintain her general function and independence".[26]
6. Dr Anand indicated a comprehensive assessment was required and provided a referral to two physiotherapists which included a suggestion for:

assessment of physical capacity, tolerance, kinesiophobia, followed by delivering a tailored pain education and developing an activity plan with aim to functional restoration, SMART goal setting, improving physical tolerances, upgrading physical activity and limit avoidant behaviours and exercise / activity plan to current physiotherapist.[27]

7. Although Dr Anand recommended interventions to improve the Applicant's physical tolerance and upgrade her physical activity, he also wrote in support of the Applicant's request for NDIS funding, stating: "The underlying medical condition is permanent and has been stabilised. The disability impacts her function in a persistent and permanent manner with fluctuating functional status".[28] Dr Anand did not elaborate on how the 'disability impacts her function' or identify specific impairments except for clear concerns about pain. Dr Anand also wrote:

A more detailed letter will follow, along with recommended / suggested self-reading material to enhance understanding of the underlying mechanisms of chronic pain / fatigue and some helpful management strategies.[29]

8. The Applicant indicates she followed up with Dr Anand for many months but did not obtain a further report from him.[30]
9. The Applicant then sought a further and final opinion from rheumatologist Dr Herman Lau on 14 December 2023. Dr Lau wrote that the Applicant "has subluxation of her shoulder and her hip but not complete dislocation. She has features of hypermobility syndrome and she fulfils the criteria for hypermobility EDS". Dr Lau indicated the Applicant "has a degree of joint pain which is manageable with paracetamol and anti-inflammatory. She does not want to go onto stronger analgesia". He said, "joint discomfort and instability does affect her day-to-day activity", although Dr Lau he did not describe how. Notwithstanding this, Dr Lau offered to draft a medical report to help with her NDIS application.[31]
10. The Applicant told the Tribunal she only met with Dr Lau once in person on 14 December 2023, with other consultations conducted via telehealth. The Applicant also confirmed in her oral evidence that she provided Dr Lau with an undated treatment summary document which she prepared. The document provides an overview of treatments the Applicant says she underwent between 2014 and 2024.[32] The Applicant said:

And Dr Lau was able to give me some guidance on what sort of management I would need and also gave me some information about things that I can and shouldn't be doing. Like Doctor Tim Lu as well, for example, said that I should be avoiding high impact activities, for example.[33]

11. The Applicant gave evidence that Dr Meghan Dares performed ankle surgery shortly prior to her consult with Dr Anand, which had previously caused acute pain.[34] The Applicant indicated the surgery had resolved her right-ankle pain and Dr Anand's reference to chronic ankle pain in his letter dated 13 December 2023 was incorrect.[35]

hEDS impairments and impact on functional capacity

1. The Applicant provided an undated statement of lived experience (first statement).[36] She confirmed in her oral evidence that this statement was prepared sometime in early 2024 because it was submitted with her application for review to the AAT in April 2024. She confirmed that Dr Lau had asked her to prepare a statement because "he knew that it was an important part in lodging the application, but he didn't help me write it". The Applicant indicated she provided a copy of this statement to Dr Lau in early 2024 but couldn't remember exactly when.[37]
2. The Applicant also filed a statement dated 11 September 2024 (second statement) which utilised a template provided by a disability advocate.[38] The Applicant was given an opportunity to review and correct any inaccuracies in her statements at the commencement of her oral evidence. She indicated she wanted the Tribunal to rely on her second statement as it was more up to date in terms of her functional capacity.

I experience daily subluxations and joint instability, skin fragility and other Ehlers Danlos related impairments. In particular, my left hip and knee, fingers, bilateral wrists and bilateral feet/ankles have shown significant instability with impaired function since childhood.[39]

2. The Applicant indicated the following with respect to her functional capacity in relation to mobilising:

(a) has a standing tolerance of 2-3 minutes. > > (b) restricts her travel up and down stairs in her home to 1-2 times per day because "repeated stair usage results in a temporary flare up of symptoms and subsequent reduced capacity". > > (c) walks within a range of 500-800 meters at a time, after which she requires a period of seated rest for 15 minutes. > > (d) in a good week, can walk up to 2km on a flat surface or as little as 100m in a bad week. > > (e) uses a wheelchair for activities that take more than 10 minutes, such as shopping. > > (f) plays tennis once per week for one hour, with a seated break every 10 minutes. > > (g) can snowboard and requires breaks approximately every 10 minutes.[40]

3. The Applicant indicated the following in relation to self-care tasks:

(a) Because of daily subluxations and joint instability, she experiences "consistent difficulty with most day-to-day tasks" including cooking, food preparation, cleaning, shopping, home maintenance and self-care activities. > > (b) takes baths 30-40% of the time to reduce physical strain but trialled a shower chair which improved independence. > > (c) Putting on enclosed shoes strains her fingers ("hyperextension or subluxation occurs on most occasions").[41] > > (d) She relies on her partner to bring her food and drink throughout the day from the kitchen located downstairs.[42]

4. The Applicant explained she had started using a low-cost manual, foldable wheelchair in the past 12 months for accessing the community but relies on her husband to push her due to her limited capacity to self-propel.[43]
5. Records produced under summons indicate the Applicant told her physiotherapist on 29 May 2024 that she "went on a trip interstate, did a lot of walking with tape on. Knee seemed ok when walking but was very sore during the evening". She complained of low back pain and patellofemoral pain.[44]
6. On the 4 July 2024, the Applicant also told her physiotherapist that her back was feeling much better after getting a new work chair and she could "sit for long periods at work with no pain". The Applicant informed him that she had been to the snow over the weekend and "only started to become uncomfortable towards the end of the drive (~5hrs), settled quickly when got out of the car and was fine all weekend". She indicated her knee was still bothering her when standing and doing exercise.[45]

1. The Applicant indicated the following with respect to her functional capacity in relation to mobilising:

(a) can walk 500 meters on a flat, sealed surface, followed by 15-20 minutes of rest. > > (b) cannot walk more than 1-1.5km for the entire day. > > (c) can only walk between 50 and 200 metres on a bad day. > > (d) can stand for 2-3 minutes (or 5 minutes dynamic standing) but less than 1 minute on a bad day. > > (e) drives up to 30 minutes on an average day. > > (f) uses public transport, but due to "limited standing / walking capacity and weakness" relies on partner to accompany her. "If I am travelling with my wheelchair, I require assistance to be pushed..." [46]

I use a wheelchair for most occasions where I would need to be walking or standing for more than a few minutes. Without my wheelchair, I am significantly impaired in my ability to access the community, attend appointments, travel or socialise... A manual wheelchair has been recommended by my treating specialist, Dr Lau, and has been recommended through various engaged Occupational Therapists. My current wheelchair is not prescribed, as it was purchased privately through an online store. I have recently completed a wheelchair assessment with my OT, and a manual wheelchair with power assist has been prescribed, trialled and quoted.[47]

3. The Applicant indicated the following with respect to her functional capacity in relation to self-care:

(a) Partner usually assists her to shower ("passing me shampoo bottles, opening containers, and assistance for me to get down to and up from my shower chair".) > > (b) Has a history of falls in the shower and bath. > > (c) Requires partner to help her dress including buttons, zippers and taking clothes off hangers. > > (d) Requires partner to "heat style" or blow dry her hair due to weakness and poor grip. > > (e) Requires partner to take her to "most medical appointments". > > (f) Cannot cut her own food. > > (g) Cannot open packaging or drinks. > > (h) Cannot open the mailbox.[48]

4. The Applicant said when in the community, she relies on her partner to push her wheelchair, carry her belongings/bag, speak on her behalf in overwhelming situations and provide continued assistance with activities such as dressing, navigating uneven surfaces and grooming. At home, her partner completes all meal preparation, cooking, cleaning and most of the gardening.[49] She indicated due to impaired fine motor skills, she has difficulty using cutlery and cannot use a knife or cooking utensils.
5. The Tribunal observes this statement did not mention snowboarding or tennis, which will be discussed further below.

1. In her oral evidence, the Applicant told the Tribunal she played soccer, netball, nippers/surf lifesaving, tennis, and swimming as a child. She did representative sport for cross country running, swimming and athletics. She also played in local tennis competitions until she was 16 or 17 years old. At about that time, the Applicant explained that she restricted herself to doubles tennis because she was experiencing joint instability and relied on her tennis partner to run for the ball.[50]
2. The Applicant explained that her parents took her to see a GP when she was 11 or 12 due to issues with her joints. She indicated that her parents were quite dismissive of her concerns because they wanted her to continue playing sport. The Applicant described 'band-aid' fixes at the time including rubbing ointments into the joint, strapping the knees, ankles and wrists, and using braces to assist with sport. In relation to the feeling of instability in her joints, the Applicant said, "it started with a clicking sensation, like a quite uncomfortable clicking sensation_"._[51]
3. In relation to her current function, the Applicant explained the following in relation to her standing tolerance:

And so the first thing that I notice my body do is it will rock to one side, it will rock to my left side and it will put a lot of strain and weight on my left knee and hip. Within that period of time, my left hip will usually partially or full dislocate and my left knee will become wobbly. So I'm not actually able to sustain the standing for longer periods than that because I don't have, I don't have the strength to maintain that position. So I need to go and sit down.[52]

4. She also described muscle fatigue because "the muscles are having to work overtime to try and stabilize those joints". The Applicant told the Tribunal that her standing tolerance has further reduced in the past 6 months and currently she would usually only be able to stand for 1 - 2 minutes, unless she was having a particularly good day, in which case she might be able to stand for 3 minutes maximum. She also explained that she can now only walk 3 to 5 minutes.[53]
5. The Applicant indicated she learnt how to snowboard when she was 18 and initially went to the snow a couple of times per year. The Tribunal observes this occurred around the same time that the Applicant claims to have stopped playing singles tennis due to joint instability.[54] A report dated 6 April 2023 from provisional psychologist Ms CO, noted the Applicant was rock climbing at the time.[55]
6. About 4 years ago, the Applicant indicated she was snowboarding 4 or 5 times per year for a couple of days during each trip to the snow. In the last 2 years, the Applicant estimated about 3 trips to the snow per year. In response to questions from Counsel, the Applicant confirmed she had snowboarded in Utah (United States) and Whistler (Canada), most recently in February 2024. On that trip, the Applicant and her husband stayed at Whistler for 8 days and went snowboarding on 6 of those days, though not always full days. She took the wheelchair with her to Whistler.[56]
7. The Applicant told the Tribunal she can now only snowboard for about 2 minutes at a time which is down from the 10 minutes in her first statement. She mainly snowboards down green runs (beginner) and blue runs (intermediate) if there is no other option, and then rests for 5 or 10 minutes after every 2 minutes of snowboarding. The Applicant said the runs can last anywhere from 3 minutes to 15-20 minutes. "[I]f it's later in the day we'll often go inside and rest for like half an hour or longer". In the last 2 years, she has used step-on bindings which means she can step onto the board and her husband clicks the safety device which joins the snowboard to her boot. Her husband carries her snowboard. She uses ankle and wrist guards and bum pads, to provide protection from falls. The Applicant has not purchased a snow pass this year because she's not sure she "will be able to do it in any capacity".[57]
8. The Applicant confirmed she bought a cheap wheelchair online. She later provided a receipt confirming it was purchased on 16 September 2023, over a month before her ankle surgery with Dr Dares on 23 October 2023.[58] The following exchange took place between Counsel and the Applicant

Counsel: Did anyone recommend to you 18 months ago that you use a wheelchair? > > Applicant: No, there was a conversation with Dr Dare about my wrists not being able to handle the weight of crutches after I got that [ankle] surgery. That's a time where I started using a wheelchair more because I couldn't hold my weight on the crutches. And since then and since getting my EDS diagnosis, then it became recommended that I keep using that wheelchair and eventually get something that's more suitable. > > Counsel: So is this the case, that in lieu of crutches, Dr Dare suggested that you use a wheelchair? > > Applicant: Yes. > > Counsel: Were you using a wheelchair before you had surgery under Dr Dare? > > Applicant: The timing of it, I think we had just bought it and I was using it for long days, like if we were at the zoo or going to an aquarium or like a, a big shopping trip, something like that. I was already using the wheelchair for those long days because I couldn't get through it otherwise. And then when I had that surgery, I had to use it more often because I wasn't weight bearing. And then once I recovered from that surgery, I went back to only using the wheelchair for like long distances. But over the last 18 months, I've had to increase how much I use it. And now I use it almost every time I leave the house. > > Counsel: So, so correct me if I'm wrong, September 2023 is 18 months ago. Do you agree with that? > > Applicant: Yep. > > Counsel: And no one recommended you start using a wheelchair in September 2023. > > Applicant: No > > ... > > Counsel: Leave aside Dr Dare, who first recommend you use a wheelchair? > > Applicant: Doctor Anand. > > Counsel: Is that something he said in his report? Are you able to help with that? > > Applicant: I can have a look. > > Counsel: This is the rheumatologist, is that right, [Dr] Anand? > > Applicant: Yes, that's the first rheumatologist. He's made a comment that says she would benefit from physical therapies and mobility aids to help maintain her general function and independence. > > Counsel: But I can't see any specific mention of the wheelchair? > > Applicant: But this is his shortened version of the report.

9. As discussed above, Dr Anand did not provide a further report despite the Applicant repeatedly requesting a further report.
10. Documents obtained under summons reveal that on 10 November 2023, approximately 2 weeks after her ankle surgery, a post-operative musculoskeletal examination ultrasound report noted "patient is not currently experiencing any concerns".[59] On the 10 November 2023, the Applicant was advised to "continue to sleep in boot for another week, use crutches for community ambulation, no crutches indoors".[60] On the 24 November 2023, a consult note stated the Applicant "was compliant wearing boot", "normal gait pattern", "wean out of boot over the next week, slowly increase walking distance/duration... no run/jump yet".[61]
11. Consult notes on 8 December 2023 note the following:

Returned to normal shoes > > Still feels like R ankle is unsteady/weak > > Still experiencing a mild limp with ambulation > > R scar sensitivity > > Returned to swimming with flippers > > Going snorkelling over the weekend.[62]

12. On 14 December 2023, Dr Dares wrote to GP, Dr ES advising the Applicant had presented for a follow-up consultation 7-8 weeks post-surgery. She noted:

-Main complaint is minor sensitivity and pain in the surgical site when taking shoes on and off. > > -Apart from this, recovery has been good with no other issues reported. > > -Plans to go snowboarding in about a month.[63]

13. There was no indication in the material obtained from Dr Dares of any difficulty using crutches during the post-operative period nor was there any mention of the Applicant using a wheelchair. The Tribunal observes that at this point in her evidence, the Applicant had nominated Dr Lau, Dr Dares and Dr Anand as medical practitioners who had recommended that she start using a wheelchair. However, the Tribunal is not satisfied that a medical practitioner ever recommended the Applicant commence using a wheelchair. Further, in circumstances where a decision is made to use a wheelchair in an ongoing and regular manner, the Tribunal would expect to see clear clinical assessment and justification. This causes the Tribunal to have concerns about the reliability of the Applicant's evidence.
14. The Applicant obtained a report from Ms LG, a senior OT dated 24 January 2024.[64] The Applicant confirmed that Ms LG did not conduct a functional assessment in her home. It is not apparent from Ms LG's report that she conducted any functional observations of the Applicant beyond meeting her in person.[65] Ms LG reported one of the Applicant's goals is to "independently access the community in an appropriate mobility device".[66] This report indicated the Applicant has resided in her townhouse for 3 years. In fact, the double-storey property was only purchased about 1 year prior.[67]
15. Ms LG completed three standardised assessments related to pain, all of which relied on self-reporting. Ms LG reported that the Applicant's responses to the Pain Disability Index (questions) indicate that her "pain symptoms are having a significant impact on her recreation activities" and moderate impact on family and home responsibilities, social activities and occupation.[68] However, the Applicant did not report significant pain to Dr Lau at the time of her consultation with him, the month prior in December 2023.
16. Ms LG recommended an assessment of mobility needs including appropriate wheelchair assistive technology to facilitate independent community access.[69] It is unclear to the Tribunal how or why Ms LG made this recommendation without first conducting a functional assessment of the Applicant herself.
17. An earlier report from Ms LG, completed on 21 September 2023 reports the following with respect to the Applicant's functional capacity:

(a) No falls history. > > (b) Normal gait pattern. > > (c) Can negotiate stairs however the left knee/hip hurts and she relies on handrail to assist. > > (d) Uses wheelchair when required to walk long distances, for example, at the zoo, museums or theme park. > > (e) Independent with all transfers. > > (f) Showers every evening and washes hair every second night. > > (g) Completes all dressing tasks. > > (h) No incontinence issues. > > (i) Independent with eating. > > (j) Able to cook and taught partner to cook who now does all cooking.[70]

18. The Applicant confirmed in her oral evidence that she complained about not getting supports in relation to her hEDS condition, including to her Local Member of Parliament (MP). Records produced by the Respondent indicate that on 15 July 2024, a NDIA staff person contacted the Applicant by phone in response to a complaint. The staff person noted the following:

Participant does not wish to submit a CoC (change of circumstance) and Secondary Diagnosis Request, as she is currently at AAT for her previous review that didn't include the supports she required. Participant disclosed that she is part of groups that support other with gaining access to the NDIS or EDS (sic). She noted that she is aware of others meeting access for EDS, and therefore is wanting to continue pushing this request.[71]

19. The Tribunal asked the Applicant to describe what a partial (subluxation) and full hip dislocation feels like:

Applicant: So, a partial one, I can still bear some weight through the joint. It's like a click, like quite a big click and you can feel that it's out. And then I'm not able to bear my full weight through the joint when those happen. I can normally click it back into place, but it's not that strong. > > When a full dislocation happens, I can't bear any weight through the hip and it's quite obvious that it's out. It protrudes and it's very uncomfortable and it's a bit harder to get back into place. And when that happens, I need to sit down straight away, even if it's on a dirty floor. > > Tribunal: And how do you manoeuvre it back into the joint? > > Applicant: Normally I find something raised like a step and I can put it back into place because my parents weren't the best at getting me treatment for that growing up. I had to learn how to deal with those myself at quite a young age. So, I've been putting them back in myself for a quite a number of years. But it's just a little bit more force required and putting my foot up on a step for a full dislocation. > > Tribunal: And how, how often would you say you have to put it, put your left hip back in? > > Applicant: Multiple times a day. I try and avoid activities that I know will cause a full dislocation. So, for example, if I tried to push myself beyond that 3 to 5 minutes, I would probably experience a partial dislocation within that range. But if I kept pushing, it would then become a full dislocation. (Tribunal's emphasis)

20. The Applicant told the Tribunal that she had not been referred to a pain management clinic and only took analgesic approximately every 2 weeks. On these occasions, she takes Panadol and/or Nurofen once or twice a day.
21. The Applicant told the Tribunal that she has experienced a steady decline in her capacity for 5 years, stating:

I don't have a medical answer for why, why it has been dropping for many years. My understanding of EDS is that it does affect the walking capacity, and my physiotherapist has provided a report quite recently also commenting on the drop in walking capacity just in the last year. It's probably a question that Doctor Lau would be able to answer much more than I can, but from my observations it's something that I've noticed steadily dropped for at least the last five years, but probably a little bit more.[72]

22. The Tribunal reviewed the summons material carefully and could not identify the Applicant consulting with her GP about joint pain prior to the 19 December 2022. This was in relation to her left knee.[73] The Applicant's GP did not mention a wheelchair in her clinical notes.
23. The Applicant told the Tribunal that her physiotherapist had recommended weekly physiotherapy sessions but claimed she couldn't afford weekly sessions. The Applicant indicated that the lack of physiotherapy might be a contributing factor for her reduced capacity in the past year or two. A letter from Physiotherapist Mr JW dated 13 February 2025 noted that the Applicant "has attended Physical Therapy intermittently since 15/12/2023 for assessment, treatment and advice regarding the management of hypermobility and the associated impairments". He further stated: "Treatment was limited to 5 appointments under a Medicare enhanced primary care plan (EPC). Moderate improvement in pain level was noted at the end of the 5 sessions (July 2024)." He indicated that the Applicant had not returned for physiotherapy until January 2025, which was for the purpose of being assessed for these proceedings.[74]
24. The Applicant did not provide any evidence to explain why she could not afford weekly or regular physiotherapy sessions over a reasonable period, noting she is employed as a national team leader for a major insurance company and her husband also works full time. She told the Tribunal she has private health insurance, gave evidence she travels weekly to Sydney to play wheelchair tennis, travelled to Melbourne at the conclusion of the third day of hearing for a weekend away, has taken extended overseas holidays to north America and routinely snowboards with her husband in Australia each winter with lift passes costing approximately $1000 per person.[75]
25. The Tribunal is not satisfied on the evidence that the Applicant cannot afford regular, if not weekly physiotherapy. The Tribunal finds that the Applicant did not seek any physiotherapy interventions during a period of approximately 6 months despite claiming to have experienced a rapid reduction in functional capacity between July 2024 and Jan 2025. This was contrary to her physiotherapist's advice to have weekly sessions. She also did not follow Dr Anand's advice who recommended a comprehensive assessment with a physiotherapist to help improve her function. She did not follow Dr Lu's advice to avoid high impact activities and there is no evidence she engaged with aqua aerobics or hydrotherapy since his recommendation.
26. The Applicant claimed the following in relation to her current functional capacity:

(a) She can't do any cooking. > > (b) She can't do any cleaning. > > (c) She can put clothes in the washing machine and hang out a small load of washing over a clothes horse / airing rack. > > (d) She ensures sufficient funds are in the relevant account each month to pay the mortgage. > > (e) She can water the garden, pick tomatoes, and prune a branch with secateurs if it's at waist or chest height. > > (f) On a good day, she could bend over to knee height, however that causes instability, particularly in her left hip. > > (g) She must bend her knees to pick up something lower than knee height because she doesn't have flexibility up the back of her legs. > > (h) She uses stretching techniques, resistance bands and body weight as part of daily exercise. > > (i) She goes to the gym once a week to use seated weight machines (utilising a pin, rather than free weights). > > (j) She can comfortably lift a 1.25kg free weight dumbbell above her head. She can raise a 2.5kg free weight dumbbell in each hand to chest height (shoulder raise movement) a couple of times and do bicep curls using a regular bench to sit on.[76]

1. By way of background, the Applicant's previous provisional psychologist, Ms CO diagnosed her with ASD Level 2 in 2023.[77] The Applicant indicated her psychiatrist Dr RB confirmed the diagnosis but agreed with Counsel that Dr RB had relied on the report of Ms CO "in part" and administered an ADHD questionnaire. "We spoke for quite a while about the ASD and it was a combination of him speaking about things from [Ms CO's] report but also trying to get his own observations to make sure that he agreed with the diagnosis and the level assigned".[78]
2. The Applicant told the Tribunal that she didn't know much about the NDIS before seeking an assessment from provisional psychologist Ms CO. She indicated that it was only after her diagnosis that Ms CO explained the types of support that the Applicant might be able to get from the NDIS. She also told the Tribunal that both Ms CO and her GP Dr ES indicated mental health care plans are only used for mental illness and not autism. Ms IG later indicated the reason she couldn't see the Applicant under a mental health care plan is because she is a provisional psychologist. The Applicant explained that if she were able to access psychology sessions under a mental health plan, she would be required to pay a gap.[79] Summons material later revealed that the Applicant had previously used mental health plans.[80]
3. Ms CO moved overseas in August 2024, approximately 10 months after the Applicant first started seeing her. At this time, the Applicant began seeing another provisional psychologist Ms IG. The Applicant explained that by seeing a provisional psychologist, she can use her monthly NDIS funding to "squeeze in a few more sessions because they're at the cheaper rate".[81] In effect, this has meant the Applicant has seen Ms IG for fortnightly sessions.
4. The Applicant said, "one of the things that I really struggle with my autism is like social communication and understanding things like body language and social cues and things like that".[82] In support of her request for increased psychology funding, the Applicant stated:

So by attending fortnightly, I'm able to learn strategies from the psychologist and then have the two weeks to practice them in real life situations and then have that review with the psychologist 2 weeks later to actually talk through my experience and any difficulties I've had, or talk about different way I can handle difficult scenarios.[83]

5. Ms CO initially predicted that the need for psychology support would decrease over time as the Applicant learnt new skills and built her capacity to deal with impairments arising from her Autism.[84] The Applicant was asked how the Tribunal might reconcile that opinion with Ms IG's recommendation for increased funding to continue psychology long term.[85] The Applicant indicated Ms IG was best placed to give evidence about timelines for reduction in support, but maintained she was getting benefit from fortnightly sessions.
6. As will be discussed in greater detail below, the Tribunal put the Applicant on notice towards the end of the hearing about the application of section 34(1)(aa) to her request for increased psychology supports. The Tribunal raised concerns that the documentary and oral evidence, including the Tribunal's observations of the Applicant over several days of hearing, may lead it to conclude that she does not meet the disability requirements in relation to impairments arising from ASD. For example, the Applicant's reported functional limitations were observed to be at odds with her actual capacity to communicate, her ability to form and sustain a relationship with her husband over recent years and her promotion to national manager without any formalised reasonable adjustments in the workplace.
7. The nature of the Applicant's evidence was a confounding one for the Tribunal. The wide gap between the Applicant's perception of her capacity and the Tribunal's observations of her capacity is not easily explained, particularly in relation to communication. This disparity did cause the Tribunal to have concerns about the reliability of the Applicant's evidence as more inconsistencies emerged over the course of the hearing. It also became evident that most practitioners had relied on the Applicant's self-reports without objective testing, direct observation, clinical judgement and/or independent corroborating evidence, such as medical records not prepared for the purpose of these proceedings. This concern was exacerbated by a lack of medical and/or allied health explanation for the dramatic reduction in the Applicant's reported functional capacity. For example, the Applicant and other witnesses did not provide a coherent explanation as to why she had gone from playing able-bodied tennis to daily wheelchair use in less than year. The Tribunal's impression of the Applicant is that some of her beliefs about her functional capacity appear to be genuinely held (and these, in turn, appear to be genuinely held by her husband). However, this does not explain some of the inconsistencies in her behaviour and reported function and why she reported certain information to some practitioners and completely different or contradictory information to other practitioners within similar time periods. There may be more complex factors than credibility as the reason for this, however the Tribunal is not well placed to resolve that either way in this decision.

1. Ms LB works for a NSW Local Health District as an OT and was asked to complete an assessment after the Applicant complained to her local MP. Ms LB gave oral evidence before the Tribunal.
2. Ms LB told the Tribunal she completed an initial assessment over the phone with the Applicant on 11 July 2024 followed by an in-home assessment on 15 July 2024. Ms LB completed a further trial of a wheelchair in the community on 21 July 2024. Ms LB sent a discharge letter on 7 October 2024, approximately 3 months after first meeting the Applicant.
3. Ms LB completed a 2-page report on 7 August 2024 following these assessments.[86] She reported that the Applicant's activity tolerance is approximately 3 minutes of standing or walking before she becomes fatigued or experiences subluxation. Ms LB recommended, owing to "reduced grip strength and instability in her joints" that the Applicant have power add-ons to a new manual wheelchair.[87]
4. At hearing, Ms LB described the in-home assessment as "informal" - "it's a review of the home environment, it's a review of [the Applicant's] function within the home". Counsel asked Ms LB to describe how she determined that the Applicant's "hypermobility results in frequent subluxation, particularly if she is required to stand for more than 3 minutes".[88] Ms LB said:

So this was in conjunction with what [the Applicant's] reporting and viewing her as she was standing for, for components of the assessment at home... She was standing next to the dining table having a conversation with myself and then I noticed leaning, placing a hand on the table, leaning on the table.[89]

5. Ms LB told the Tribunal she had asked the Applicant if she was fatigued, and the Applicant had agreed.
6. Ms LB confirmed she did not perform any formal assessment to determine grip strength. She opined based on her observations that the Applicant did not have the grip strength to slow the trial wheelchair down a long ramp as part of the community wheelchair trial. Ms LB also noted the Applicant reported not feeling confident, was nervous and that the Applicant was using a new wheelchair for the purpose of the trial.[90]
7. Ms LB told the Tribunal that she knew the Applicant was using a wheelchair in the community and therefore her assessment assumed that the Applicant needed a wheelchair. Ms LB was unsure whether a therapist had recommended the wheelchair to the Applicant. When asked about the risk of deconditioning, particularly given the Applicant's young age, Ms LB indicated it would be better to speak to a physiotherapist about that issue. The Tribunal observed this is to be an unusual response because OTs regularly comment on the risk of deconditioning in their reports and evidence before the Tribunal in other proceedings.[91]
8. Ms LB told the Tribunal that the Applicant "showed me how she attempts to use a standard knife and it's noted there was hypermobility in her finger joints".[92] Ms LB also recommended a perching stool and rocker knife so the Applicant would be less reliant on her husband to prepare meals and cut up her food.[93]
9. Ms LB confirmed the Applicant had trialled a rocker knife and should explore more options with adaptive cutlery to allow her to be independent with feeding.[94] Ms LB gave evidence that such cutlery retails for approximately $15-30 per piece and that a long-handled shoehorn and reacher retail for about $15-20 each. Ms LB told the Tribunal the Applicant declined to trial a kitchen trolley or perching tool "due to the space in her kitchen".[95] The Applicant later told the Tribunal she had not purchased a rocker knife, which would enable her to cut up her own food.
10. Ms LB also wrote a support letter dated 17 September 2024 which stated:

[The Applicant] previously played tennis with her friends. Due to the fatigue associated with Ehler's Danlos Syndrome she is no longer able to stand and run for the ball for the required length of time to play a social game of tennis. [The Applicant] is however, learning how to play wheelchair tennis. It is recommended [the Applicant] continue with the wheelchair tennis due to the benefits of social interaction and physical activity which positively impacts both emotional and physical wellbeing.[96]

11. Ms LB's letter indicated the Applicant commenced weekly wheelchair tennis on 19 June 2024 however Ms LB could not clarify for the Tribunal when the Applicant could no longer stand and run for the ball. The Husband's evidence (discussed below) indicates the Applicant stopped playing able-bodied tennis around September 2024, which would be consistent with the Applicant's request for a letter from Ms LB at the time. The Tribunal observes the Applicant did not mention able-bodied tennis in her second statement which was prepared in September 2024.
12. It was unclear from Ms LB's evidence the reason for reduced grip strength and difficulties with hand function, noting that Dr Lu considered the Applicant's "hand function and grip strength were normal" in October 2023.[97] The reported difficulties also appear to the Tribunal to be inconsistent with the ability to grip and use a tennis racket while playing wheelchair tennis each week.
13. Ms LB could not remember how often the Applicant experiences subluxations but said "the general idea I obtained from the conversation was that it would be around the weekly timeframe". Ms LB confirmed the Applicant had provided her with reports from a rheumatologist, a physiotherapist and another OT who was focused on the Applicant's ASD.[98] Ms LB did not mention dislocations in her reports and letters.
14. The Tribunal considers Ms LB an honest witness, however it was also clear from both the Applicant's and Ms LB's evidence that the OT assessment was for the purpose of preparing a report in support of the Applicant's requests to the NDIS and to trial a wheelchair. Ms LB's assessment did not focus on whether the Applicant needed a wheelchair and therefore did not include the level of objective testing and clinical observation of functional movement that one would expect in circumstances of such reported rapid functional deterioration. The Tribunal was also surprised that Ms LB did not have more to say about the risk of deconditioning, particularly for a young woman transitioning to daily wheelchair use. For these reasons, the Tribunal places limited weight on Ms LB's evidence regarding the Applicant's functional capacity.

1. Ms CL was engaged by the Applicant to conduct a functional capacity assessment in her home on 15 August 2024. Ms CL completed a report on 6 September 2024.[99]
2. Ms CL told the Tribunal she graduated with a Bachelor of Science (Occupational Therapy) in 2016 from Velez College, Cebu City in the Philippines. She worked as a licensed paediatric OT for 7 years at a private clinic in Cebu before working in the "NDIS space" in Australia for about 14 months. Ms CL obtained general registration with the Australian Health Practitioner Regulation Agency (AHPRA) last year. She told the Tribunal her reports are checked by her supervisor before they are finalised.
3. Ms CL said it usually takes about 2 hours to complete a functional capacity assessment but could not recall how long it took to complete the assessment with the Applicant. She confirmed she only met with the Applicant in her home and references to consultation with the Applicant's carer and support coordinator were part of the organisational template which she could not delete from her report. Ms CL told the Tribunal she sat down with the Applicant for most of the assessment which included an interview.
4. Rather than administering the assessment tools in person, Ms CL explained that she often provides the tools to clients via email or hard-copy, to be completed after the in-person assessment. Ms CL believes she emailed the assessments to the Applicant.[100] The Applicant's self-reported scores on the World Health Organisation Disability Assessment Schedule 2.0 (WHODAS 2.0) place her in the category of severe impairment (94% and above) in all domains including 'understanding and communicating', 'getting around', 'self-care', 'getting along with people', 'life activities' and 'participation in society.[101] In a separate decision before this Tribunal, another OT gave evidence that a WHODAS score of 95% was "approaching the level of impairment that would ordinarily be associated with someone who was non-verbal".[102] The Applicant scored 94.69%.[103]
5. In her report, Ms CL indicated that the Applicant exhibited the following symptoms:

ASD& ADHD related symptoms: > > • Impaired cognitive processing, including processing speed, problem-solving, memory, and executive functioning > > • Reduced expressive language and associated impact on social interaction with others > > • Poor social skills with difficulty making and sustaining friendships > > • Difficulty recognising emotions and reading social cues > > • Difficulty managing change and transition > > • Sensory preferences and behaviours that impact day-to-day functioning > > • Reduced vision > > • Thermal dysregulation > > • Sleeping difficulties > > • Anxiety.[104]

6. Ms CL was asked how she reached the conclusion the Applicant has reduced expressive language. She replied, "During my assessment, she talks slowly and I observed that if she's not comfortable with the question, it's difficult for her to explain her side of things". When asked by Counsel where that appeared in her report, Ms CL stated:

It says on page 5 that she reported that her speed of responding to questions is slow and she also has difficulty making spontaneous conversations due to her disability. When she mentioned that to me, I also observed that during the assessment.[105]

7. Ms CL was also asked to explain how she concluded that the Applicant has impaired cognitive processing:

When I said in my report that she has impaired cognitive processing, including processing speed, I observe that I need to rephrase the questions for her to be able to understand and give me appropriate responses... she mentioned to me that if there is something that she could not understand, she would do self-research, especially if it is work related.[106]

8. Ms CL opined that the Applicant can understand "simple information" but "has difficulty processing complex information "because of her disability.[107] The Tribunal asked Ms CL why reduced vision is listed as an ASD symptom. She replied, "so it could be possibly a visual sensory processing difficulty for a person with autism".[108]
9. In relation to the Applicant's literacy, the following exchange took place.

Counsel: Ok, so for example, if you look on page three of your report, you talk about [the Applicant's] literacy. Did you watch [the Applicant] reading anything? > > Ms CL: I can't remember. > > Counsel: Ok. If you didn't administer any of those assessment tools sitting down with her during the interview, do you agree it's unlikely that you observed her doing any reading? > > Ms CL: Yes. > > Counsel: So where you say under literacy, '[The Applicant's] able to read and write at a competent level, but she struggles to understand and comprehend lengthy written or printed texts' and you go on to say she needs to reread things several times. Is the Tribunal to understand that is something [the Applicant] told you? > > Ms CL: Yes. > > Counsel: This is based on her reported capacity at the time of the assessment. Is this how the Tribunal should understand your report - it's largely based on what [the Applicant] told you? > > Ms CL: Yes.

10. The Tribunal finds that Ms CL's conclusions regarding the Applicant's functional capacity in terms of cognition, processing speed and communication is at odds with what the Tribunal observed of the Applicant's functional abilities over the course of the 6-day hearing, which will be discussed in greater detail below. This causes the Tribunal to question the accuracy of other matters contained in her report, including the Applicant's physical functional capacity.
11. Ms CL noted the following symptoms in relation to the Applicant's hEDS diagnosis:

EDS-related symptoms: > > • Reduced gross motor skills > > • Widespread joint pain > > • Chronic pain in left hip and knee > > • Hypermobility of joints > > • Subluxation of left hip and knee joints > > • Reduced bilateral lower limb strength > > • Reduced fine motor skills due to muscle weakness and hypermobile fingers affecting grip > > • Poor sitting and standing tolerance due to muscle weakness, joint pain and instability > > • Diminished mobility due to fatigue, joint instability and subluxation > > • Poor exercise tolerance and physical activity tolerance > > • Gait abnormality - pigeon toe gait > > • Difficulty performing functional transfers > > • High risk of falls > > • Decreased balance, coordination and proprioception > > • Extreme fatigue, which impacts activities of daily living > > • Reduced level of independence with activities of daily living and increased reliance on informal carers > > • Occasional urinary incontinence > > • Constipation.[109]

12. Ms CL reported that the Applicant struggles with navigating the stairs at home because of reduced muscle power and leg strength.[110] The Applicant indicated her pain can escalate to 7-8/10 because of activity/flare-ups and which can lead to extreme fatigue when standing or walking.[111] Ms CL also indicated the Applicant can self-propel her current manual wheelchair for 5 to 10 minutes with 30 seconds of rest every minute. Noting Ms CL's recommendations for a manual wheelchair with power assist and a sports wheelchair, it was puzzling to the Tribunal that Ms CL did not observe or assess the Applicant using her wheelchair.[112]
13. When asked how she formed her view that the Applicant has reduced gross motor skills in relation to activities like walking, running, squatting, and bending, Ms CL said "yes, as I've said, it's based on her reported capacity at the time of the assessment".[113]
14. In her report, Ms CL wrote, the Applicant "has difficulty walking due to altered gait mechanics as a result of EDS. She reported frequent knee buckling and tripping due to inward rotation of her feet, which sees the toes of each foot come into contact with each other".[114] The Tribunal observes Ms LG's report recorded normal gait and no falls history.[115] Ms LB's report did not make any mention of gait issue or pigeon toes.[116] Dr Dares reported "normal gait pattern".[117] Physiotherapist, Mr JW did not make any mention of altered gait or pigeon toes in his report dated 5 January 2024.[118] He referred to the Applicant as 'pigeon toed' with 'internally rotated femurs' in his report dated 13 February 2025.[119] There was no clear medical explanation for this apparent development.
15. Ms CL said the Applicant was wobbling as she walked to the stairs in her home and was trying to weight bear on surfaces which Ms CL opined was to avoid falls.[120] When asked why Ms CL was concerned about falls, she replied:

So during our conversation, during the assessment, she mentioned physical pains, she mentioned instability, and with instability comes falls. > > ... > > I verified to her that when she was diagnosed, what are her symptoms. And she told me that she has joint instability. Sometimes her knee would buckle. And from there I would, I would need to assess whether she is at risk of falls.[121]

16. Ms CL later indicated that she had not seen any medical or other reports confirming falls. Documents obtained under summons did not reveal reports of falls to the Applicant's GP. Dr Lau, Dr Lu and Dr Anand did not mention falls in their reports. The Tribunal is not satisfied on the evidence, including that of the Husband's oral evidence detailed below, that the Applicant experiences regular falls.
17. Ms CL asked the Applicant to walk up and down the stairs, to show her the bathroom and an ergonomic chair used for work, to hold a fork, to stand and to sit on the floor. They did not go for a longer walk outside the home and Ms CL did not assess other daily living tasks that the Applicant could or could not do in the home such as cooking, cleaning, dressing or personal care. Ms CL apparently took photos of the assessment but did not include them in her report and they have since been deleted.
18. The Tribunal notes that Ms CL's previous experience in the Philippines had a paediatric focus and her work in Australia is limited. The Tribunal accepts that Ms CL was an honest witness, however she predominantly relied upon and reached conclusions about the Applicant's functional capacity based on the Applicant's self-reporting. Given the severity of the reported functional decline, Ms CL's assessment did not involve a sufficient level of objective testing and/or clinical observation of the Applicant performing a range of functional tasks for the Tribunal to be satisfied that the report provides an accurate picture of the Applicant's capacity. The assessment was very limited in scope compared to independent functional capacity assessments routinely reviewed by the Tribunal in other proceedings. For these reasons, the Tribunal places limited weight on Ms CL's evidence regarding the Applicant's functional capacity.

1. At the commencement of her oral evidence, Ms IG corrected a date in her report, confirming that she first saw the Applicant in August 2024, not 2023. At the time of her evidence, Ms IG had been providing fortnightly psychology sessions for approximately 9 months.
2. Ms IG is provisional psychologist registered with APHRA. She has a bachelor's degree in psychology which she completed in 2018. She started an internship about 2.5 years ago with her current employer. Ms IG works approximately 2 days per week with her current employer and 1.5 days per week with another organisation. The internship, also known as the 'Four Plus Two' is an alternative pathway to obtaining general registration as a psychologist. The traditional pathway involves completing a 2-year Master's degree in addition to a 4 year bachelor degree. Ms IG explained the alternative pathway has recently been discontinued. Ms IG has both a primary and secondary supervisor, with the latter located at her primary place of employment. She has recently submitted her application to APHRA for full registration as a psychologist.
3. After finishing her degree, Ms IG worked for several years in retail and completed volunteer work including supporting a child with autism and assisting the Riding for the Disabled organisation. Ms IG told the Tribunal that over the past two years of practice, most of her clients are children and their parents. She estimates that only 5 of her clients have been adults in the age range of 18 to 30 years old.
4. Ms IG told the Tribunal that a client cannot claim a Medicare rebate through a Mental Health Care Plan when using a provisional psychologist. She estimated that about half her clients are private paying while the other half are funded through the NDIS.
5. Ms IG explained that each of her psychology sessions run for 50 minutes and start with the client providing a brief overview of what has been going on for them between sessions. This takes approximately 10 minutes. For example, the Applicant had discussed the emotional impact of the Tribunal proceedings during their most recent session.
6. The week prior to the hearing, Ms IG said the Applicant arrived on time and was seated in a waiting room chair and then walked into the consulting room with her. At no stage in her evidence on the 10 April 2025 did Ms IG reference the decline in the Applicant's walking/standing capacity or the impact of her hEDS on her ability to carry about basic daily living tasks. During her oral evidence on 9 May 2025, Ms IG confirmed the Applicant has not ever attended using a wheelchair, despite fortnightly sessions for approximately 9 months.
7. The Tribunal notes that whilst the focus of Ms IG's sessions are said to largely focus on capacity building in relation to the Applicant's Autism, each clinical note referenced the Applicant's distress or frustration in relation to issues with the NDIS, her advocate, the Tribunal proceedings and work. The Tribunal's impression of the clinical notes is that the Applicant was highly focused on her application for review. There seemed to be limited and largely superficial exploration of the Applicant's ASD impairments and/or the skills to manage their functional impact in the sessions. It is also clear that the Applicant asked Ms IG to "provide a short report to explain focus of therapy and suggest increased funding (fortnightly, rather than monthly)".[122]
8. Despite the claimed rapid decline in functional capacity for someone aged 27, there was no reference in Ms IG's clinical notes to the emotional impact of the Applicant requiring a wheelchair for daily tasks in the community or to her reduced capacity to complete tasks of daily living in the home. The notes did not reference a desire for the Applicant to expand her social circle, to build friendships or discuss the capacity building strategies required to support that.[123]
9. The following exchange took place:

Tribunal: Just on that, Ms [IG], in your letter, you say [The Applicant] presents to therapy with significant challenges relating to her comorbid diagnosis of autism and ADHD. These include very high levels of distress and significant difficulties with emotional regulation, interpersonal skills and executive functioning. So if we take the interpersonal skills, what's your understanding of what those challenges look like in daily life? > > ... > > Ms IG: So because of her autism, she can be really prone to misunderstanding social cues, which is obviously really highly distressing. So here she struggled with picking up on nonverbal responses. > > Tribunal: I understand that as a symptom or an impairment. But in terms of what's reported to you...what's a recent example of that happening in daily life? > > Ms IG: ... So I guess if we're talking about examples that have come up, unplanned conversations, like when they go off track can be really distressing for [The Applicant]. > > Tribunal: So again, I just need you to be very specific Ms [IG]. What was the unplanned conversation and what happened in that conversation. > > Ms IG: So I guess like when she's spoken generally about difficulties when conversations go off script, if that makes sense. > > Tribunal: Yep. And so where's that happening, those conversations? > > Ms IG: So that could be, I guess with anyone, like for any conversations, she's not prepared for any sort of reciprocal conversation. > > Tribunal: Do you remember an example that she spoke to about a particular conversation where that happened? > > Ms IG: I can't remember a very specific example, but it's been something she's spoken about as a difficulty. > > Tribunal: And what about executive functioning. What's an example of that? > > Ms IG: Yeah, so I guess a specific example might be at work, like she would really struggle with last minute schedule changes, like the heavy workload and things like that. > > ... > > Tribunal: Can you remember an incident where [the Applicant] came and described that happening on a particular occasion? > > Ms IG: Not a specific one from memory, but in the context of work, it's come up as something that can be difficult.

10. Ms IG told the Tribunal that in her opinion the Applicant engages in masking which refers to someone with ASD behaving in a way that they are not normally inclined and which causes significant distress. She confirmed this was self-reported by the Applicant. When asked to describe the kinds of 'stimming' behaviours that the Applicant masks in current life, Ms IG indicated she had observed fidgeting. Ms IG could not identify the types of stimming behaviour that the Applicant claimed caused difficulties in childhood.
11. Ms IG described psychology sessions which were a mix of counselling or talk therapy and some 'interventions' or capacity building, reportedly based on Cognitive Behaviour Therapy (CBT), Acceptance and Commitment Therapy (ACT) and Dialectical Behavioural Therapy (DBT).
12. The Tribunal finds that Ms IG is an honest witness, however she also is very early in her career and has very limited experience with adult clients. Despite regular sessions with the Applicant, much of Ms IG's evidence described self-reported symptoms at a high level of generality, rather than specific examples of particular incidents. Ms IG was observed to primarily attribute reported challenges or difficulties to the Applicant's ASD diagnosis, rather than indicators of possible depression, anxiety, childhood trauma, PTSD and/or something else entirely. This appeared to occur in a context where Ms IG was acutely aware that NDIS only funds sessions for the purpose of capacity building and skills development in relation to ASD impairments. In the Tribunal's view, this may have interfered with Ms IG's clinical judgement, with Ms IG confirming she had not recommended or provided a referral to the Applicant for psychological treatment of her mental health issues, namely depression, anxiety, and possible PTSD. For these reasons, the Tribunal places limited weight on Ms IG's opinion as to the functional impact of the Applicant's ASD diagnosis.

1. Dr Lau is a Consultant Physician and Rheumatologist. He has 16 years experience as a rheumatologist, in addition to prior medical training and work. The Tribunal is satisfied Dr Lau has relevant expertise to provide expert opinion on the diagnosis of hEDS and was an honest witness.
2. On the 14 December 2023, Dr Lau had his first consultation with the Applicant. This is the only time Dr Lau assessed the Applicant in-person. He wrote to the Applicant's GP the same day, as follows:

I detected atrophic scars on her back, piezogenic papules on her heels, mild skin hyperextensibility, abnormal striae over her pelvis and under her breasts, and absence of aortic root dilatation or valvular disease on echocardiogram. She has dental crowding... She reports a family history of joint hypermobility... > > She has a degree of joint hypermobility which is manageable with paracetamol and anti-inflammatory. She does not want to go on onto stronger analgesia. > > She has NDIS support for ASD and ADHD, and will have an occupational therapist assessment next week to focus on her musculoskeletal condition. > > Her joint discomfort and instability does affect her day-to-day activity. She was under the care of a physiotherapist in the past and has not needed to see her physiotherapist for the last 8 months because of recurrent issue of left pain. > > ... > > I have asked her to prepare a functional Impact statement together with the occupational therapist report and a physiotherapy/exercise physiology report. I have asked her to email them to me once available so I can draft a medical report to help her through NDIS application. She will then make an appointment to see me so we can go through the application report and the process.[124]

3. On 5 February 2024, Dr Lau wrote a support letter stating:

[The Applicant] has been diagnosed with Ehlers-Danlos Syndrome (EDS), a life-long connective tissue disorder that primarily affects the skin, joints, and blood vessel walls. There is no cure for this condition and it results in permanent physical impairments and disability, which are not reversable or treatable. This condition has a significant impact on [the Applicant's] life, causing joint hypermobility, joint pain, skin fragility, fatigue, and various other impairments. > > ... > > The condition primarily affects her left hip and knee, fingers, bilateral wrists, and bilateral feet/ankles, leading to impaired function since childhood... > > ... > > Despite these challenges, she remains committed to maintaining her joint strength and function to continue participating in these activities [snowboarding and tennis], which provide significant mental and physical health benefits. > > ... > > There is no further intervention that would improve her functional capacity. Her condition is stabilised and has reached maximum medical improvement".[125]

4. On the 13 February 2024, Dr Lau wrote to the Applicant's GP stating, "I reviewed [the Applicant] today. She has remained more or less the same and we have been communicating by email to work on the NDIS application".[126]
5. On 13 March 2024, Dr Lau wrote "[the Applicant's] condition Ehlers-Danlos Syndrome is a permanent lifelong condition. There is no appropriate treatment which would remedy the impairment, which includes medications, surgery or pain management. She will require lifelong NDIS support".[127]
6. On 5 June 2024, Dr Lau wrote a further support letter addressed 'To Whom it may concern' stating the Applicant "has undergone extensive prior intervention aimed to improve and to maintain her function and reduce the impact of her EDS. This includes, but is not limited to, physiotherapy, resistance training, hydrotherapy, mobility aids and orthopaedic review". He indicated that she was not a candidate for pain management because pain was not a contributing factor to her disability.[128]

[The Applicant] is under the care of a physiotherapist who recommends weekly physiotherapy, focusing on developing a graduated exercise program, proprioception training, posture awareness and correction. Her occupational therapist has recommended various interventions, including assistive technology, daily adaptive aids, and psychological support. [The Applicant] requires assessment for an appropriate wheelchair, as recommended by her Occupational Therapist.[129]

7. On the 30 August 2024, Dr Lau responded to targeted questions from the Respondent stating:

[The Applicant's] disability is from joint instability, muscle weakness from deconditioning as per my previous assessment report. She has expected level of pain from joint hypermobility and she uses simple analgesia, anti-inflammatories as required when she suffers an injury. She does not have chronic pain syndrome that requires pain clinic management.[130]

8. In his oral evidence, Dr Lau confirmed that his letters with respect to the Applicant were to assist with her application to the NDIS. Since his first in-person consult with the Applicant in December 2023, he has seen the Applicant twice via telehealth on 13 February 2024 and 5 June 2024.[131] He also confirmed later in his evidence that he does not have "any way to quantify the amount of disability apart from patient reports".[132]
9. Dr Lau indicated that apart from the referral letter from the Applicant's GP, a letter from Dr Tim Lu and a letter from Dr Raj Anand, he did not review any other documents or clinical notes at the time of his initial assessment. The Applicant's symptoms of subluxation of the shoulder and hip were self-reported. An OT report from Ms LG dated 24 January 2024[133] and a physiotherapy report from Mr JW dated 5 January 2024[134] were both completed after Dr Lau's initial consultation and diagnosis on 14 December 2023. Those later reports by Ms LG and Mr JW also appeared to rely on the confirmation of diagnosis by Dr Lau and his opinions regarding permanency.
10. Dr Lau explained there was a revision to the classification criteria in relation to hypermobility spectrum disorders in 2017. He described the spectrum as consisting of very mild joint hypermobility at one end, through to severe hypermobility hEDS at the other end. He indicated that classical and vascular EDS are much more severe conditions again, however the Applicant does not have these conditions.[135]
11. In relation to the Applicant's knowledge of hEDS, Dr Lau said "when I first met her, we had discussion not documented in the file. I felt that she was well learned and has been through a journey over the years with physiotherapy".[136]
12. In Dr Lau's view, the Applicant meets the diagnostic criteria for hEDS because the Applicant:

(a) Achieved a Beighton score of 8 (which assesses generalised joint hypermobility) (Criterion 1). > > (b) Had the following features (at least 5 of 12 features must be present) > > > (i) Mild skin hyperextensibility > > > > (ii) Unexplained striae distensae or rubae (stretch marks) without history of significant weight gain or loss > > > > (iii) Bilateral papules of the heel > > > > (iv) Atrophic scarring > > > > (v) Dental crowding > > (c) Positive family history > > (d) Musculoskeletal pain or two or more limbs, recurring daily for at least 3 months > > (e) Recurrent joint dislocations or instability, in the absence of trauma.[137]

13. Dr Lau confirmed that he did not know the Applicant had a suspected eating disorder as an adolescence or that she had reported a 10kg weight change in 4 to 6 weeks, about 2 years prior to their consult.[138] He did not review dental reports to confirm dental crowding or other documents confirming a family history of hypermobility. He did not have other medical records confirming a history of subluxations or dislocations. Dr Lau confirmed it was a difficult condition to diagnose, with no test to ascertain collagen levels in the body.[139]
14. Dr Lau could not recall whether the Applicant had attended the consult in a wheelchair but agreed with Counsel he had not made a note of it in his clinical notes. He also acknowledged he does not have the expertise to carry out a full functional assessment and relies on reports from physiotherapists or exercise physiologists to determine a person's functional capacity.[140]
15. Dr Lau stated:

even if a person doesn't have the name hEDS, if they have a lot of systemic features with a strong clinical suspicion, then the management is the same. I'll watch the person very closely as if the person has hEDS and the management is also exactly the same. Joint strengthening, proprioception training, physiotherapy, conditioning, devices, it's the same management.[141]

So in my impression of [the Applicant], the first thing I asked her, I want to suss out whether she's got pain seeking or pain behaviour or pain syndrome. And she was very honest. She said, 'look, pain is not a thing, I don't want more painkillers'... And then she goes to work, she tries her best to fulfil he work requirement. She tries to engage with various sports and activities. She tries to manage on her own health with various interventions or physiotherapist exercise, self manage program.[142]

17. It was Dr Lau's understanding that pain was not a major problem for the Applicant, that she was engaging with various sports and activities and was managing her impairments. In his view, the Applicant should not be referred to a pain management clinic because they, "they pick up a sick roll, 'I've got chronic pain'". However, he later added:

So if a person has chronic pain behaviour or pain avoidance behaviour or because they are avoiding activities because of pain, then we need pain psychologist involved.[143]

18. He also gave evidence about the importance of engaging with a physiotherapist, stating that if someone has been "slacking off the exercise", a physiotherapist can "bring [them] up to speed again, build [them] up gradually right". He said "muscular strengthening is extremely important" along with proprioception and joint awareness.[144]
19. Dr Lau was asked whether he had envisaged the Applicant would be using a wheelchair in the couple of years following his assessment in December 2023. He appeared surprised and indicated he had not anticipated or expected that. Dr Lau also expressed concern that if used beyond a "bad period when symptoms are more severe" the person becomes over-reliant, and muscles will weaken. The Tribunal understands this to be known as deconditioning.

So I don't think she'll need a wheelchair for the rest of her life because she's engaging in physical strengthening and I want her to continue to do that. But if she requires a wheelchair for a trip that her body doesn't tolerate, I think that's reasonable.[145]

20. Dr Lau indicated he had not observed a patient with hEDS deteriorate rapidly in a couple of years and said the need for a wheelchair was "not common".[146]
21. He also told the Tribunal a full hip dislocation is horrible. "Patient will not be able to walk or stand. The leg will twist out, will rotate out to one side, will look shortened. And it's something that need to be attended to the emergency department". When asked about the Applicant's reported daily full hip dislocations, Dr Lau thought she may have misinterpreted her symptoms as a more severe subluxation and indicated he had not observed regular full hip dislocations in his other patients. He did not support a further referral to an orthopaedic surgeon, pointing to Dr Leong's report confirming there were no structural problems.[147] The Tribunal observes that daily dislocations were not reported at the time of Dr Leong's report.

1. The Husband told the Tribunal that he met the Applicant in April 2021 through Instagram and they married in 2024. He works as a software programmer from home.
2. The Husband provided a 'impact statement' dated 12 September 2024.[148] The Tribunal observes that much of his evidence appears to re-state evidence provided in the Applicant's second statement, dated 11 September 2024.[149]
3. The Husband said he does not have a diagnosis pertaining to neurodivergence. He indicated the Applicant finds it difficult to make friends but confirmed his wife had a previous partner who taught her how to snowboard. He told the Tribunal his wife has two friends from school and/or university and she sees one of them every couple of weeks.[150]
4. The Husband recalled during the early stage of their relationship that his wife complained of hip and knee pain. He gave evidence that although the Applicant's difficulty with stairs had progressively got worse during their time together, they decided to buy a two-storey townhouse in January 2023 because they didn't think the impairment was permanent.[151]
5. The Husband indicated the Applicant was diagnosed with ASD early on in their relationship and that a cardiologist had recently diagnosed her with POTS syndrome. There was no other evidence of this before the Tribunal. Dr Lau had noted "mild dizziness with transfer but no excessive palpitation to suggest POTS syndrome" in December 2023.[152]
6. The Husband told the Tribunal he regularly completes the following task for the Applicant:

(a) Prepares her clothes in piles for the week ahead (and stored in the room next door). > > (b) Wakes her up with the dog. > > (c) Gives her medication to her with a glass of water. > > (d) Prepares a cooked breakfast, such as eggs benedict or hash browns, sausages, eggs, toast and sometimes cereal. > > (e) Helps to pull down a sports bra or join the clasp on a traditional bra. > > (f) Runs the bath for her and gets her pyjamas. > > (g) Retrieves her clothes from the neighbouring room and puts them on the bed for her. > > (h) Packs her bag for work including laptop, sensory toy, umbrella, water bottle and make-up. > > (i) Pushes the Applicant in the wheelchair onto the train and then pushes her from the station to her office in Sydney about every 3 weeks, spends the day in Sydney and then returns home with her on the train. > > (j) Prepares all meals, such as sandwiches and salads for lunch and nachos or pasta for dinner. > > (k) Serves all meals to the Applicant in her office upstairs or at the dining table downstairs. > > (l) Cuts up the Applicant's meal because her index finger hyperextends if she uses a knife for anything harder than an omelette. > > (m) Drives the car whenever they are together. However, she can drive herself to some local appointments and he doesn't attend all medical appointments. He nominated, for example, attending an orthodontist appointment.[153]

7. The husband told the Tribunal the following with respect to the Applicant and her functional capacity:

(a) The Applicant cannot use a knife and fork together. > > (b) She doesn't have the strength to hold a pot or pan and to stand or bend in the kitchen to cook. > > (c) She cannot get her own clothes ready in the morning because of textures and the time needed to stand/walk to retrieve them from the room next door. > > (d) She cannot hold a fork or pen in a regular manner. Rather she grasps the fork or pen (much the way a small child does) because she doesn't have grip or pinch strength. > > (e) She cannot retrieve snacks or meals from the cupboard or fridge herself because it involves walking downstairs. > > (f) She cannot carry a plate of food from the kitchen to the dining table. > > (g) She cannot get up off the ground without assistance. > > (h) She will not eat if he's not there to prepare and deliver food to her. > > (i) She generally only uses the stairs once per day, appearing slow, wobbly and as though her legs will buckle - "I mean pretty typically it's just once down, once up every day". > > (j) She has a fall or near fall on average twice per week. > > (k) They bought a wheelchair in 2023 for about $200. > > (l) She was playing able-bodied doubles tennis until 8 months ago (approximately September 2024). > > (m) She plays wheelchair tennis once or twice a week. > > (n) She sees a friend about every 2 weeks and communicates online with a friend who lives overseas. > > (o) The Applicant introduced him to snowboarding after she was introduced to it by a previous boyfriend. > > (p) They went snowboarding together in Perisher ski resort for 5 - 10 days in July/August 2024. They also snowboarded during the Australian winter in 2022 and 2023 but have not purchased a season pass this year. A season pass costs about $1000 per person. > > (q) They went snowboarding in Whistler, Canada in January/February 2024. They spent 8 days at the resort and snowboarded on about 5 of those days. > > (r) They spent 10 - 15 days in New York as part of the Whistler trip and the husband pushed the Applicant around in a wheelchair. > > (s) The Applicant can snowboard for about 2 minutes at a time before requiring a rest of 5 to 10 minutes, sitting on the snow. She could also walk about 50 meters in snow boots in the snow without wobbling. The Applicant uses wrist, ankle braces, a bum pad and helmet. > > (t) The Applicant spent 2 - 3 hours on a bus from Vancouver to Whistler. > > (u) He was not sure whether a shower chair had been requested at the hotel where they stayed in New York stating: "No, because I mean, yeah, she's as far as I know, she's happy to sit on the floor" [of the shower recess]. > > (v) She can use a SLR camera that weighs between 1 - 2kg. > > (w) The Applicant stopped going to the gym last year. When the husband was informed that the Applicant told the Tribunal she attends the gym each week, he indicated she might do some gym exercises as part of her wheelchair tennis session with her coach on Mondays. > > (x) She can't concentrate watching a tv program but can concentrate on a puzzle for up to 1.5 hours.[154]

8. He reported the following in relation to a claimed fall in the shower 2 days prior to his evidence. A chair was in situ at the time.

Counsel: Describe how it happened? > > Husband: So she's just washing, you know, washing herself and her, her lower, lower body couldn't take, you now, standing up any longer. And she sort of gave out beneath her, I suppose her legs just like gave out. > > Counsel: [Mr Husband], can I suggest to you, it doesn't sound like you're describing what you saw, but rather a series of things you imagine happening. So you said she's washing herself and her lower body couldn't take the strain or words to that effect and she fell...Are you able to describe what you saw happen? > > Husband: ...She has to get up to wash a particular part of her body. She gets a bit wobbly and she's struggling to hold herself up. So she's like trying to grasp something on the side of the wall...like a recess, I should say on the side that she tries to hold onto. That's not very effective. And yeah, she falls to the floor sort of mainly sliding down with her back down the, the back of the shower in between the shower chair and the corner of the shower...[155]

9. The Tribunal observes the husband's use of present tense when describing a prior incident to be unusual and did not occur during the rest of his oral evidence.
10. The husband gave evidence that the Applicant could put sunscreen on her own face when they first met, after which she would wash her hands. However, he now applies sunscreen to her face. When asked about this, he replied:

Her ASD is also sort of yeah, the impairments, I suppose, or you know, the symptoms that I've observed have gotten worse as well.[156]

11. He also told the Tribunal that when living with her father, the Applicant's room was messy however the Applicant's father did not assist her to prepare clothes or get dressed. "She would still try and get things out a week in advance, like, you know, a set of clothes for the week ahead...Once we moved in together, she just. Yeah, it's much easier for me to do it".[157]
12. He disagreed with the suggestion that it does not appear the couple has prioritised physiotherapy sessions despite the apparent rapid decline in the Applicant's functioning over the past 18 months and in circumstances where the couple has spent funds on snowboarding and overseas holidays. He indicated the Whistler trip was planned well in advance but appeared vague on details including the cost, which he estimated was between $3000 - $6000 per person.
13. The Tribunal indicated it was having some difficulty understanding why the Applicant couldn't walk down the stairs to get a snack out of the fridge or cupboard but was able to snowboard for at least a couple of minutes at a time. The following exchange took place:

Tribunal: But you'd agree with the point that 2 minutes of - and I've never snowboarded - but I imagine 2 minutes of physical stamina, bracing, concentration...doing that down a run that you're not particularly familiar with in a foreign country is more effortful than walking to the fridge to get a snack? > > Husband: Yeah, so this is probably best answered by [the Applicant]. But what I can say, I mean just right off the bat, I mean the fridge is downstairs. So she already has to walk down the stairs, I know that I can see what you're saying just at a base level...but we, I am talking about in the context of ASD and how overwhelming going from task to task and, you know, the physical side of it as well with the EDS and going up and down the stairs, all of that combined.

14. The Husband and Applicant's evidence suggest there may be a significant number of tasks that the Husband does for the Applicant, not necessarily because she can't do them herself, but rather, because they are either somewhat difficult, she doesn't like to do them and/or they have not made simple adjustments in the home, for example, by purchasing a rocker knife, a perching stool and other simple commonly used items which can be used to increase her functional capacity. While the Tribunal cannot be sure that the hypermobility in the Applicant's fingers is so severe that she cannot use a regular knife, her claimed reliance on her husband to continue to cut up her meals in circumstances where a simple piece of equipment has been trialled and recommended was confusing to the Tribunal. It indicates a concerning level of dependency that is not easily understood.
15. The Tribunal does not accept that the current list of tasks that the Husband performs accurately corresponds with the Applicant's actual functional capacity. However, for the reasons mentioned as well as the inconsistencies across the evidence, it is impossible for the Tribunal to determine what the Applicant actually can and cannot do. This will be considered in greater detail below.

1. On the first day of the hearing, the Applicant submitted that the Tribunal should consider her impairments arising from ASD Level 2 in combination with physical impairments arising from her hEDS diagnosis. While she had already been granted access to the scheme because of ASD Level 2, she contended that these impairments should also be considered in combination when deciding whether she meets the disability requirements under section 24(1)(c) in relation to physical impairments caused by hEDS. This set off an inquiry as to what functional domain(s) were met at the time of the Applicant's entry to the scheme.
2. At this juncture, it is important to remember that the NDIS is concerned with responding to needs arising from specific impairments affecting functional capacity; not diagnosis or conditions. Diagnosis or conditions are relevant to the extent that they help explain the impairment and/or identify appropriate treatments or interventions. The Tribunal sought clarification from the Respondent on the first day of the hearing as to which domain was met under section 24(1)(c), as required by the legislation.
3. On the third day of the hearing, Counsel for the Respondent indicated that her client had located some records related to the Applicant's functional capacity in the domains of communication, social interaction, and self-care.[158] However, there did not appear to be a clear record confirming how the 5 cumulative criteria set out in section 24(1) of the Act had been met. It is therefore unclear to the Tribunal, and seemingly to the Respondent as well, how it was decided that the Applicant met the disability requirements at the time of her entry to the scheme.
4. It is concerning to the Tribunal that clear records could not be located given the Applicant only entered the scheme 2 years ago. As an essential public service, equity requires that there should be clear reasons and evidence for declining a person entry to the scheme, just as there should be clear reasons and evidence for admitting a person to the scheme.
5. To ensure fairness to the Applicant, the Tribunal proceeded on the basis that at the time of access to the scheme she satisfied s24(1)(c) under the domains of communication, socialising and self-care.

1. As mentioned earlier in this decision, significant legislative amendments came into force on 3 October 2024 including changes to section 34 regarding reasonable and necessary supports. Section 34(1)(aa) is a new provision and relevantly states "the support is necessary to address the needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25)."
2. It is therefore necessary to consider the meaning and application of this provision to the Applicant's request for increased psychology hours.
3. In the decision of FTXB; Secretary, Department of Social Services and (Social services second review) [2024] AATA 3021, Tribunal President Justice Kyrou and Senior Members Kennedy and Trotter set out the principles of statutory interpretation as follows (footnotes omitted):

[62] The starting point in construing a statutory provision is its text, considered in the light of its context and purpose. It is necessary to strive to give meaning to every word of the provision. > > [63] Context includes the surrounding statutory provisions because the meaning of a statutory provision must be determined by reference to the language of the statute viewed as a whole. It is necessary to construe the provision so that it is consistent with the language and purpose of all the provisions of the statute... > > [64] In some circumstances - such as where a statute is part of a wider legislative scheme - context may include reading a statute together with other statutes so that, together, those statutes are construed as a combined statement of the will of the legislature.

4. The term 'meet' is an irregular verb which is used to describe present or future tense, whereas the word 'met' is only ever used in the past tense. The Macquarie dictionary defines the term as 'to satisfy (needs, responsibilities, demands, expectations etc.)'[159] It was clearly open to the Parliament of Australia to use the word 'met' when approving the legislative changes. This would have denoted that the relevant impairment(s) to be considered were at the time of access or entry to the scheme. It would have focused the decision-making task on whether a current request for support corresponds to or addresses a need arising from an impairment(s) at the time of access to the scheme.
5. However, the Act uses the word 'meets'. In the Tribunal's view, this necessitates a current temporal assessment as to whether the impairment 'continues to meet' the disability requirements or early intervention requirements, as the case may be. This interpretation is supported by the note accompanying section 34(1) which states:

(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports;

...

1. In performing it's review function, the Tribunal has the power to affirm, vary or substitute the reviewable decision made by a delegate of the CEO to approve the Applicant's statement of participant supports. Accordingly, the time at which the Applicant needs to meet the disability requirements for the purpose of section 34(1)(aa), is at the time of the Tribunal's decision.
2. The Explanatory Memorandum states:

Item 46 inserts an additional criterion (new paragraph 34(1)(aa)), which provides that the supports must be necessary to address the needs arising from an impairment that meets the disability requirements (in accordance with section 24) or early intervention requirements (in accordance with section 25). Item 48 makes consequential amendments to subsection 34(2) to ensure that NDIS rules can be made for the purposes of new 34(1)(aa). > > This amendment clarifies that the NDIS only funds supports for impairments that meet the disability or early intervention requirements, as per the Scheme's original intent. This amendment reflects the Agency's current operational guidelines and will provide clarity to participants and other service systems about what supports will be funded through the NDIS. It will not require participants to repeatedly prove their disability.[160] (Tribunal's emphasis).

3. To the Tribunal's mind there are essentially three considerations or questions that must be considered under this new provision and answered in the affirmative.

(a) Is the requested support necessary to address the need of a participant? In other words, there must be a clear link or nexus between a participant's need, for example improved mobility, and the support requested, for example, a piece of assistive technology to aid mobility.

If another participant living with psychosocial impairments had a need for increased social participation in the community but requests support was for personal care, then it would be difficult to conclude that the support was required to address the need for increased social participation.

(b) Does the need arise from an impairment? For example, a participant may need a mobility device because of an injury to their leg. The injury caused the impairment which prevents the participant from moving around their home or accessing the community.

Another participant may want transport to attend the supermarket because they don't own a car or don't like using public transport. In the latter case, the need (or want) does not arise because of the participant's impairment.

(c) Does the same impairment meet the disability or early intervention requirements? For example, if a participant's leg is amputated, the impairment is permanent and substantially reduces their functional capacity in the domain of mobility. However, if the participant's ankle is broken, it will probably not result in a permanent impairment once they undergo treatment and a period of rehabilitation.

1. While it may be open to the Tribunal to conduct a full assessment against the disability (or early intervention requirements), including assessing the permanency of an impairment, the Tribunal observes that for practical purposes, an inquiry whether such impairments continue to cause substantially reduced functional capacity in one or more domains is an obvious starting point.
2. It may be the case that for many, if not most participants, the impairment(s) for which they met access do not change significantly, noting that impairments may vary in intensity (in relation to the question of whether a person will require NDIS supports for their lifetime) or be episodic or fluctuating (in relation to the question of permanency).[161] In practical terms, a question whether impairments continue to meet the disability requirements may never arise. However, in this case, it does.
3. Importantly, the relevant question is not whether the ASD impacts the Applicant's life or makes some tasks or activities more difficult but rather, whether she has impairments that result in substantially reduced functional capacity in one or more of the relevant domains.

Substantially reduced functional capacity re 'ASD' impairments

1. The Tribunal put the Applicant on notice regarding the application of section 34(1)(aa) and raised its concerns that the documentary and oral evidence, including the Tribunal's observations of the Applicant over several days of hearing, may lead it to conclude that she no longer meets the disability requirements in relation to impairments arising from ASD. The Applicant was invited to respond and provide further clarification about the relevant impairments including the need for the requested psychology support. The Applicant told the Tribunal that her ASD impairments affect her communication, socialising and self-care. For the avoidance of doubt, there was no evidence to suggest major difficulties in the domains of learning, mobility or self-management with respect to impairments arising from ASD.
2. The relevant threshold for subsection 24(1)(c) is set out in the Tribunal's decision of Garcia Albiol and National Disability Insurance Agency [2024] AATA 496 as follows (footnotes omitted):

[68] The Agency also submits that the term 'substantially' in the context of reduced functional capacity carries a 'high threshold'. I am satisfied that this is the correct interpretation and my considerations are as follows: > > The recommendation of the Productivity Commission was that the scheme provide supports only to a sub-category of persons within a much larger category of the persons who have a disability. > > The Productivity Commission also recommended that the scheme provide these supports 'judiciously rather than routinely'. This recommendation is logical and central to the operation of the scheme and ensures its financial sustainability. > > The scheme was never intended to provide support to 'every person with a disability'. > > Rather, as part of one of its functions the scheme was intended to support persons with disability to receive supports outside of the scheme through mainstream services. This would of course include persons with a disability who do not fall within the sub-category of persons for whom the scheme was intended. > > The scheme was not intended to respond to shortfalls in other mainstream services, including those provided by relevant State and Territory governments. > > The intention of providing supports to only a subcategory of persons with a disability is reinforced by the ability of the legislature to prescribes rules in relation to access to the scheme. By way of example Rule 5.8 of the Access Rules operates to categorise certain persons 'into' the category of persons with a 'substantially' reduced functional capacity. > > The concept of prescribing rules in relation to a category of certain persons who would be mandatorily 'excluded' from the category of persons with a 'substantially' reduced functional capacity is an unrealistic if not impossible task. Notwithstanding, the Access Guidelines assist the decision maker with an informed approach by way of practical examples and circumstances in which access will not be granted. > > I am satisfied that the Tribunal's satisfaction of what constitutes 'substantially' reduced functional capacity for an applicant seeking access to the NDIS scheme requires a high threshold. This decision will therefore be made on that basis.

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 - 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. > > ... > > 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.[162]

1. The Applicant said, "there's frequent communication breakdowns and I have a lot of trouble having conversations on a day-to-day basis that aren't heavily scripted in advance and understanding what people are saying back to me". She also stated:

Well day-to-day, I rely on [husband] to speak on my behalf as much as he can. It's obviously really difficult in this environment where I have no choice but to speak in these settings. But if there's things like phone calls or booking appointments or even speaking to someone at the door or dealing with the cashier at the supermarket, I don't engage in any of those communications because that would need me to script and prepare for those conversations ahead of time, which is very overwhelming.[163]

2. The Tribunal observes that the Applicant did not have advance knowledge of the questions asked of her in the proceedings held over 6 separate days. The Tribunal observed the Applicant to be someone who was able to effectively communicate with the Tribunal in both oral and written form. She appeared highly intelligent, raising complex legal arguments on the first day of the hearing which appears consistent with her extensive experience in the insurance sector. Her current national team manager role involves managing staff and overseeing complex insurance matters involving litigation. Dr Lau described the Applicant as "learned" with respect to her knowledge of EDS following their first consult.
3. Having considered all the evidence before the Tribunal including the Applicant's access request documents, the Tribunal finds that the Applicant has worked in the insurance industry since 2018 and has been in a national team manager role since September 2023. The Applicant confirmed she engaged in online groups that support others to gain access to the NDIS or to support a diagnosis of hEDS. She has raised complaints with the Respondent and MPs using the phone and email.[164]
4. The Tribunal finds that the Applicant communicated and interacted with Counsel, witnesses and the Tribunal in a polite and courteous manner at all times. She was observed to answer questions spontaneously and without obvious delay or hesitation. The Applicant maintained focus throughout the proceedings including periods of between 2 to 3 hours without a break. She was observed to ask relevant questions of witnesses, read a significant amount of material within a short period and prepare coherent and sophisticated written submissions at short notice. She was able to recall dates and details of appointments several years prior. She helpfully assisted the Tribunal and Counsel locate documents in the hearing bundle on several occasions. As mentioned previously, the Tribunal places limited weight on the evidence of practitioners who relied on the Applicant's self-reports when forming conclusions about her communication abilities. The Tribunal does not accept the Applicant's assertion that she cannot communicate without the assistance of her husband.
5. The Tribunal finds rule 5.8 does not apply because the Applicant does not require assistive technology, equipment, home modifications or assistance from another person to participate effectively in the domain of communication.

1. In relation to socialising, the Applicant acknowledged there was some crossover with communication. She said, "I only have one friend that I see in person and that's only at the moment about once every 2 months. And it has to be at an activity because otherwise I can't have like small talk or a conversation. And I also don't know how to make friends". She also stated, "I don't know how to enter like community environments where I would need to speak to people that I don't know. I would rely on someone else to talk on my behalf or I wouldn't go at all". She said in relation to psychology sessions, "we haven't worked much on the socialising aspect because we've been working on the emotional regulation first".[165]
2. The Applicant's husband described his wife as "blunt" and indicated she could be "black and white" in her thinking.[166] Ms LG wrote in her report that the Applicant "has difficulty expressing her needs/communicating in emergency situations, interrupts people all the time and difficulty managing emotions and behaviours.[167] The Tribunal is satisfied this was self-reported by the Applicant.
3. The Applicant commenced wheelchair tennis in approximately September 2024 as a social and recreational activity which she attends weekly in Sydney. Prior to that, she played able-bodied tennis for several years. The Husband told the Tribunal the Applicant currently trains with a wheelchair tennis coach. The Applicant told Ms CL that she has two friends who she met through tennis. She also told Ms CL that she supervises staff and to goes for lunch with them when in the office.[168]

The Tribunal accepts that the Applicant has a relatively small social circle. However, the Tribunal finds the Applicant has maintained a working relationship with her manager, who she worked with at a previous company. Despite some reported difficulties, the Applicant continues to manage staff as part of her full-time job and her employer has not formalised any reasonable adjustments for the Applicant in the workplace. The Applicant had a boyfriend prior to meeting her husband who taught her how to snowboard. She met her husband online 4 years ago, with the couple marrying last year. She has maintained at least two friendships since school, one who she sees in person and the other who she communicates with online. There was some evidence the Applicant doesn't particularly like socialising with other people.[169] The Applicant previously played able-bodied tennis and now interacts with a coach and other players at wheelchair tennis each week. The Applicant also gave evidence she catches up with immediate family members for birthday and other family occasions.

Accordingly, the Tribunal finds rule 5.8 does not apply because the Applicant does not require assistive technology, equipment, home modifications or assistance from another person to participate effectively in the domain of socialising.

1. In relation to self-care, the Applicant said it's "mostly sensory problems like smells, touch, and transitions into different tasks and the overwhelm that comes with all the steps in tasks".[170] The Applicant told the Tribunal there are a number of tasks she can't do and has never been able to do because of her ASD including cooking, cleaning and "anything sensory based in terms of going into like the drawer or wardrobe and finding an item of clothing, if I am having to touch other textures to find something". She pointed to Ms LG's assessment stating:

Her report talks about the struggles with tasks and them being broken down into many steps and the sensory issues around those tasks and trouble with transitions and rigid behaviours are all addressed in her report.[171]

2. The Tribunal observes that Ms LG's report did not include a functional assessment in the Applicant's home and appears largely based on the Applicant's self-reporting. Ms LG reported the Applicant to be independent in several functional tasks including grooming, toileting, dressing, showering, shopping of small purchases, transfers and eating. She reported that "finding the right clothes in her wardrobe can, at times be difficult". Cleaning and meal preparation were recorded as causing the most difficulty.[172]
3. The Applicant told Ms LG "that she is able to cook and taught her partner how to cook however her partner does all the cooking".[173] This was attributed to sensory issues associated with touching different textures, frequent washing of hands, the noise of getting pots and pans out, panicking about burning herself due to poor concentration, an inability to focus on completing the task and reduced standing tolerance.[174] In his evidence, the Husband denied the Applicant had taught him how to cook except for telling him how to boil pasta.[175]
4. Ms LG wrote:

[The Applicant] reported persistent major problems with relationships [and] poor performance with activities of daily living such as shopping and meal preparation. [The Applicant's] hypervigilance, hyperfocus, poor emotional and behaviour regulation and adherence to rigid routines with difficulty adapting to changes in circumstances is significantly affecting her daily life resulting in increased burnout and meltdowns.[176]

5. When Ms IG was asked to describe specific examples of the Applicant's difficulties with communication or social interaction, either at home or in the community, she was unable to provide a concrete example despite fortnightly sessions with the Applicant.
6. The Husband's evidence suggests there are a range of tasks the Applicant did prior to her diagnosis of ASD and which she has ceased doing, including applying sunscreen and preparing her own clothes. There was no evidence to suggest the Applicant's Father, who the Applicant lived with prior to her husband, had assisted his daughter to dress or cut up her meals. The Applicant told Ms LG that she could do small amounts of cleaning however had difficulty completing larger cleaning tasks due to disliking loud noises, walking backwards, strong chemical smells, the sensation of wetness and having wet clothes in her hands.[177] However, the Applicant told the Tribunal that she can hang out a small load of clothing on an airing rack.
7. For reasons which are elaborated on in the proceeding section of this decision, the Tribunal finds that it cannot form the requisite state of satisfaction about the tasks of daily living that the Applicant can and cannot do within the domain of self-care. This is primarily attributable to the inconsistent and contradictory evidence detailed across this decision including the limited weight that can be given to the opinions and conclusions expressed in the functional capacity assessments. The finding here should be read in conjunction with the assessment of the evidence and associated findings, detailed across the remainder of this decision.
8. In these circumstances, it follows, that the Tribunal cannot be satisfied that the Applicant requires assistive technology, equipment, home modifications or assistance from another person to participate effectively in the activity of self-care. While the Applicant currently relies on her husband for many things, the Tribunal is not satisfied on the evidence that this is necessarily because of limitations in her functional capacity. Rule 5.8 does not apply.

1. For similar reasons to those mentioned above, the Tribunal does not accept that the Applicant's impairments arising from ASD rise to the threshold of substantially reduced functional capacity in relation to communication and socialising. On the contrary, the Tribunal finds the Applicant has high-level communication skills, demonstrating a clear intellect that is consistent with her current role. Similarly, while the Applicant appears to experience some social anxiety and has a relatively small social circle, she previously dated and currently maintains relationships with friends, family, and her husband who she met 4 years ago. She also manages staff, works full time, and engages with a coach and players as part of weekly wheelchair tennis.
2. While the Applicant has claimed a high-degree of incapacity to do most self-care tasks, the Tribunal does not accept the accuracy of the assertions. The inconsistency in evidence suggests the Applicant's functional capacity may be much higher than her perceived or self-reported functional capacity. In a situation where significant uncertainty remains about the Applicant's functional capacity in the domain of self-care, it means she has failed to satisfy the Tribunal that she meets section 24(1)(c).
3. The Applicant asked the Tribunal to consider the impairments arising from both conditions together when assessing her functional capacity under section 24(1)(c). Without expressing a view on the appropriateness of that course in this matter, the Tribunal can indicate that it has considered the evidence together and for reasons which will be apparent, it would make no difference to the outcome either way.
4. The Tribunal finds that the Applicant's impairments arising from ASD do not continue to meet the disability requirements. Accordingly, the Tribunal is not satisfied that any psychology support is necessary to address the needs of the participant arising from an impairment in relation to which the participant meets the disability requirements. Section 34(1)(aa) is not met and psychology supports cannot be funded. The support should be removed from the Applicant's statement of participant supports and her request for additional psychology support is refused.
5. The Tribunal does not suggest that the claimed impairments have no impact on the Applicant's functional capacity. However, the reduction in functional capacity has not been shown to meet the relevant threshold such as to justify the expenditure of public funds through the NDIS. It is, of course, open to the Applicant to access psychological supports through a mental health care plan and/or a private fee-paying arrangement.

1. This application raised an important conceptual question regarding the application of section 34(1)(aa) and arguably demonstrates the importance of access decisions accurately recording how a participant meets the disability or early intervention criteria.
2. Were the Tribunal to have found that the Applicant has substantially reduced functional capacity in the domain of self-care, a question would have arisen whether the request for psychology support "is necessary to address the needs of the participant arising from an impairment in relation to which the participant meets the disability requirements".
3. The Tribunal understands that there must be a nexus between the needs of the participant arising from an impairment and a requested support. In other words, the support must address, respond to or alleviate the need arising from an impairment. However, it seems the construction of the provision intends a further nexus to the relevant domain where the person experiences substantially reduced functional capacity.
4. For example, let us assume a person meets the disability requirements because of substantially reduced functional capacity in the domain of socialising because of impairments arising from a diagnosis of ASD. The person's impairments are, for example, difficulty with reciprocity in conversation, difficulty reading social cues, stuttering and fixated interests. It would follow that, for example, a request for psychology support to build the person's social skills and for a support worker to accompany the person to several community events to develop more confidence, would likely address a need arising from their impairment under section 34(1)(aa).
5. Now, let us assume the same person requests cleaning support 6 months later because of sensory impairments associated with their ASD. The person's impairments are identified as difficulty with strong smelling chemicals and touching wet sponges or cleaning cloths. At the time of their access to the scheme, these sensory issues were noted to cause some difficulty or challenges for the person when cleaning, but they were not found to cause substantially reduced functional capacity in the domain of self-care or self-management (either solely or in combination with other reported impairments).
6. In this case, is the request for cleaning support a support that addresses a need arising from an impairment which meets the disability requirements? It would seem the answer must be no.
7. Similarly, had the Applicant satisfied the Tribunal she had substantially reduced functional capacity in the domain of self-care, it is difficult to see how psychology sessions would have responded to a need arising from that domain, particularly on the evidence before the Tribunal.
8. It follows that rather than focusing on conditions or diagnosis, each impairment must be recorded by the Respondent with some specificity and detail including an explanation as to how, either solely or in combination with other impairments, they result in substantially reduced functional capacity in one or more relevant domains. This will naturally inform the types of support that address a need arising from an impairment which meets the disability requirements.

1. The concept of impairment is central to considerations under section 24 of the Act. As the Tribunal recently observed in Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607:

[25] The term 'impairment' is not defined in the NDIS Act. However, the Agency's operational guidelines define it to mean "a loss of or damage to your body's function". I note that this conceptualisation of impairment for the purposes of s 24(1) was specifically approved by the Court in Davis.[178] That definition is a simple rendering of the definition of impairment[179] used in the application of the International Classification of Functioning Disability and Health (ICF), which is "a problem of body function or structure such as a significant deviation or loss as compared with typical or expected function or structure".[180] (Tribunal's emphasis)

2. In this sense, an impairment is not merely a reduction in a person's capacity to do things.[181]
3. In Mulligan, it was held that the term disability is used as a descriptive concept for the overall effect of a person's impairments on the person's ability to participate in all aspects of personal and community life.[182] While the Act does not define disability, its first object[183] is giving effect to the Convention on the Rights of Persons with Disabilities[184] which defines the concept of disability as "[p]ersons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others".[185]

1. In its closing submissions, the Respondent expressed concerns about the reliability of Dr Lau's hEDS diagnosis, noting a lack of corroborating records in relation to dental crowding and a family history of hypermobility. The Respondent also contended that Dr Lau did not receive sufficient briefing materials or information at the time of his assessment, for example, the Applicant's weight gain of approximately 10kg about a year prior, which might explain the stretch marks he observed on the Applicant's breasts and lower stomach region.
2. Dr Lau explained that if a person has enough systemic features, then the management of the condition is essentially the same regardless of whether they are diagnosed with hypermobility syndrome or hEDS.
3. It seems unnecessary for the Tribunal to decide whether the Applicant has hEDS or not for the purposes of section 24(1)(a). The diagnosis is only relevant to the extent it helps explain the cause and nature of her claimed physical impairments. As Senior Member French observed in Burrows:

[24] In the context of s 24(1)(a), and Chapter 3 of the NDIS Act more generally[186], the term "disability" has a specific meaning, being a functional outcome that is attributable to specified categories of impairment. The concept of impairment is distinct from the concept of 'disability', and from a diagnosed health condition. Care needs to be taken not to conflate these separate concepts or use them interchangeably. Failure to maintain this conceptual distinction may lead to a misapplication of the access provisions.[187]

4. The Tribunal has distilled from the evidence that the Applicant claims a disability arising from the following physical impairments:[188]

The Tribunal accepts that skin fragility may be a symptom of hEDS, however there was no evidence indicating how this could properly be considered an impairment in the Applicant's case. While her skin may be thinner or more fragile than most people, and as such, it 'deviates' from the norm, the Tribunal cannot be satisfied as to the degree of the deviation or how this affects her in daily life.

(b) Pain

The Tribunal understands pain is also a symptom of hEDS. Dr Lau did not quantify the scale of pain usually associated with this condition. There was inconsistent evidence about the degree, type and location of pain experienced by the Applicant however the Tribunal will address those issues under section 24(1)(b). The Tribunal accepts that the Applicant has a disability attributable to the physical and/or sensory impairment of pain.

(c) Hypermobility / joint instability

The Tribunal understands from Dr Lau's evidence that hypermobility and joint instability are also symptoms of hEDS and other hypermobility spectrum disorders, suggesting there is a continuum of mild through to severe hypermobility/joint instability. The Applicant scored 8 on the Beighton's score which is a screening tool used to confirm hypermobility. The Tribunal accepts that the Applicant has a disability attributable to the physical impairments of hypermobility and joint instability.

(d) Loss of strength / muscle weakness & fatigue / reduced flexibility

Loss of strength, muscle weakness/fatigue and reduced flexibility are also said to be symptoms of hEDS. They are also clearly attributable to other conditions including deconditioning or muscle wasting. It is a question of degree whether these symptoms could also be classified as impairments, however the Tribunal will proceed on the basis that they rise to the level of physical impairments.

(e) Subluxations and Dislocations

Subluxations refer to a partial dislocation of a joint, where the bones are misaligned, whereas a full dislocation, for example, in the case of hip, refers to the ball joint coming out of its socket. Both subluxations and dislocations are symptoms of hEDS or hypermobility. The Tribunal accepts that the claimed frequency and degree of subluxations and dislocations would be a physical impairment.

However, besides the Applicant's self-reports, there was no medical or allied health practitioner who observed a subluxation or directly reported on the occurrence of a subluxation, including details of when it occurred, how it happened, what it felt like and how it was corrected. This was despite the Applicant claiming she could effectively induce a subluxation in her hip by standing for longer than 3 minutes (and which reportedly did not cause significant pain).

Further, the Applicant's description of a full hip dislocation, which she claims occurs multiple times per day, was plainly at odds with Dr Lau's explanation that it is "horrible" and would usually require attendance at the Emergency Department. The Applicant described it as uncomfortable and something she routinely resolved herself by using a step to put it back in.

The Tribunal cannot be satisfied that the subluxations and/or dislocations are impairments in circumstances where it is unclear whether they occur. For reasons noted above, the Tribunal has concerns about the reliability of the Applicant's evidence and the Husband's written evidence was lacking in detail regarding the occurrence of subluxations and dislocations. If they are occurring, they can be properly assessed as part of a medical review, which is considered below.

(f) Pigeon toes and altered gait.

Ms CL and Mr JW were the first practitioners to mention the Applicant having pigeon toes. Mr JW said the Applicant had internally rotated femurs.[189] There was no medical explanation for this change in the Applicant's legs or feet, which was not reported prior. Several practitioners reported the Applicant had normal gait. The Tribunal will proceed on the basis that it could be an impairment however further medical review will likely be required.

1. The Tribunal is satisfied the Applicant has a disability attributable to the following physical impairments:

(a) Pain > > (b) Hypermobility / joint instability > > (c) Loss of strength / muscle weakness & fatigue / reduced flexibility > > (d) Pigeon toes and altered gait.

1. As is clear from the preceding section, the Applicant's impairments are each distinct. They cannot necessarily be dealt with collectively for the purpose of considering what treatments might be required before determining whether an impairment can be said to be permanent.
2. As mentioned above, the Applicant's diagnoses of hEDS is relevant to the extent that it helps to explain her physical impairments and the different treatments or interventions likely, if at all, to remedy those impairments. The Tribunal observes that the treatment for physical impairments arising from Diagnosis A in one individual may overlap with but also require distinct interventions from those used to treat impairments associated with Diagnosis A and/or Diagnosis B in another individual.
3. The Applicant submits that she meets the permanency criteria in relation to physical impairments and relies on the evidence of Dr Lau. The Respondent contends that there are treatments available likely to alleviate the Applicant's impairments, and that the impairments require further medical treatment and review before they can be assessed as permanent.
4. In the decision of Davis, Mortimer J described the meaning of "permanent" in s 24(1)(b):

[85]...In my opinion, the correct meaning of "permanent" in s 24(1)(b) is "enduring". This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability. > > [86] The critical point is that "permanent" is used as an adjective in s 24(1) to the noun "impairment" (or in the plural, "impairments"). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme. > > ... > > [130] ...I explained ...above my view about the correct construction of "permanent" in s 24(1)(b). The phrase "permanent impairment" in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis..[190]

5. The Access rules provide important guidance for assessing whether the Applicant's physical impairments can be said to be permanent:

When is an impairment permanent or likely to be permanent for the disability requirements? > > 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. > > ... > > 5.6 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). > > ...[191]

6. Mortimer J observed that the rules 5.4 and 5.6 were exclusionary, in the sense that they "prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person's impairment will be excluded from meeting the permanency criterion in s 24(1)(b)".[192]
7. Her Honour observed the following with respect to the adjectives used in rule 5.4:

(a) the word 'remedy' should be understood to mean something approaching a removal or cure of the impairment';[193] > > (b) the word 'known' connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment';[194] > > (c) the word 'appropriate' 'connotes a treatment which has a capacity to "remedy" the impairment and is suitable for the particular individual concerned to undergo';[195] and > > (d) the word 'available' should be understood as directed at what treatments an individual can, in reality, access'.[196]

To meet the disability requirements, we need to know that your impairment is permanent, or likely to be permanent. Permanent under the law for the NDIS means enduring. This means we need to know whether your impairments are enduring so that you require NDIS supports on an ongoing basis. > > We will focus on your impairments, and not on the cause of your impairments, or your diagnoses. You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity. Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime. > > Even when your condition or diagnosis is permanent, we'll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, or if there are known, available and appropriate evidence-based clinical, medical or other remaining treatments options that are likely to remedy the impairment. > > Generally, we'll consider whether your impairment is likely to be permanent if all available and appropriate treatment options are pursued. > > ... > > When we look at what treatments are available to you, we think about whether the treatment is suitable for your personal situation. The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle. > > If you're still undergoing or have recently had treatment, we may not be sure you have a permanent impairment if that treatment could remedy the impairment.

9. Dr Lau's evidence is central to the question of permanency in this matter. As indicated, the Tribunal accepts that Dr Lau has relevant training and expertise as a Rheumatologist and is qualified to make the diagnosis of hEDS. He conceded in his oral evidence that he does not have expertise to assess 'disability'. It was unclear whether he was referring to the global impact of impairments coupled with social barriers and/or to specific impairments themselves.
10. One key issue should be noted from the outset - having reviewed the evidence and considered the nature of the first consult, the Tribunal was somewhat perplexed by Dr Lau's preparedness to so readily assist the Applicant to apply to the NDIS after meeting her on only one occasion. It was clear from the evidence that Dr Lau had limited background information about the Applicant, including some of the corroborating material one might ordinarily use for making a diagnosis of hEDS, including confirmed hypermobility within the family and dental records. He did not have access to an OT functional capacity assessment at the time of the consult; instead inviting the Applicant to prepare a functional impact statement so he could "draft a medical report to help her through the NDIS application".[197] The Tribunal observes Dr Lau's description of the Applicant's impairments at paragraph 4 of his first report[198] appears to be copied from paragraph 2 of the Applicant's first statement.[199] In his oral evidence, Dr Lau acknowledged that his letters were written to support the Applicant's NDIS application and that he relies to a large extent on what a patient reports to him. Apart from conducting the Beighton assessment for hypermobility at the first consult, there is no evidence Dr Lau directly observed or assessed the Applicant's other claimed impairments, except for thin skin.
11. Despite the Applicant reporting a rapid decline in functional capacity over the past approximately 18 months since she first met him, Dr Lau had not seen the Applicant since 5 June 2024, and that was by telehealth. This appeared to be at odds with his oral evidence that he will "watch the person very closely" in terms of management of hEDS (or more severe hypermobility syndrome) which involves interventions such as physiotherapy and conditioning devices. It appears to the Tribunal that by Dr Lau pre-emptively involving himself in matters beyond the assessment and treatment of the Applicant's medical condition, the focus of the therapeutic relationship shifted significantly towards one of support for a NDIS application rather than the treatment and review of the Applicant's condition.
12. Dr Lau's written and oral evidence suggests he assumed the Applicant was largely independent and was intent on continuing to live an active life.[200] He indicated he was very alert to the issue of chronic pain when he first met the Applicant, however she told him that pain wasn't a major factor and she didn't want pain medication. In those circumstances, Dr Lau concluded that referral to a pain clinic was unnecessary. He also told the Tribunal that many of his patients request his help to access the NDIS but indicated that if they are "crying in pain" he refers them to a pain clinic. It is unclear from his evidence what he made of Dr Anand's letter dated 13 December 2023, provided to him at the first consult, which identified the Applicant as having psychological challenges and needing to understand the underlying mechanisms of chronic pain.[201] His position that referral to a pain clinic is unnecessary is also difficult to reconcile with the other evidence which suggests the Applicant was complaining of significant pain to other practitioners during the same period.
13. In his letter dated 5 February 2024, written after his second consult with the Applicant via telehealth, Dr Lau wrote:

There is no cure for this condition and it results in permanent physical impairments and disability, which are not reversable or treatable. This condition has a significant impact on [the Applicant's] life, causing joint hypermobility, joint pain, skin fragility, fatigue, and various other impairments.[202]

14. In his letter dated 5 June 2024, Dr Lau indicated the Applicant's condition was stabilised and that she had undergone "intensive prior intervention aimed to improve and to maintain her function and reduce the impact of EDS. This includes, but is not limited to, physiotherapy, resistance training, hydrotherapy, mobility aids and orthopaedic review".[203] The Tribunal understands that Dr Lau relied on information provided by the Applicant with respect to her engagement with physiotherapy, hydrotherapy and resistance training. While it may be the case that the condition is not reversable, his reference to prior interventions to improve function suggest that the impairments are treatable.
15. There is also a question of fact regarding the extent to which the Applicant engaged in the treatments before Dr Lau considered her 'condition' stabilised. For example, in her self-prepared treatment summary, the Applicant said she completed hydrotherapy and aqua-aerobics between 2015 and 2018. There was no independent evidence of these sessions provided to the Tribunal. It is somewhat unclear why the Applicant elected to engage in these forms of low-impact exercise while playing tennis and taking up snowboarding during the same period. The Tribunal observes that Dr Lu had recommended these exercises shortly before the Applicant's attendance upon Dr Lau however there is no evidence of the Applicant's attendance at hydrotherapy since that recommendation.
16. In his oral evidence Dr Lau said if someone has been "slacking off the exercise", a physiotherapist can "bring [them] up to speed again, build [them] up gradually right".[204] He also confirmed it was not expected the Applicant would require daily use of a wheelchair and that the need for a wheelchair was uncommon for people living with hEDS. Dr Lau recommended the Applicant should avoid high-impact activities.
17. In the Tribunal's view, Dr Lau's evidence must be considered in the context of his proactive support for the Applicant's NDIS application and his significant reliance on her self-reports. On the one hand, the Tribunal understands the inclination for a medical practitioner to assist their patient in matters beyond strict treatment of medical conditions. For example, GPs are routinely called upon by patients to assist with various applications to Centrelink and are often well placed to provide relevant information. However, there is a risk that medical practitioners may move unwittingly into the realm of advocate when medical opinions are expressed in terms that accord with legislative criteria rather than pure clinical judgement and treatment recommendations. The Tribunal observes such a risk to be greater in circumstances where a practitioner does not know a patient well and/or does not have considerable clinical data or corroborating background information. It is for the relevant decision maker to assess whether independent and objective medical evidence satisfies legislative criteria and not the other way round. The Tribunal is concerned that in his attempts to support the Applicant in line with specific legislative criteria, Dr Lau may have conflated the permanency of the Applicant's hEDS condition with permanency of the Applicant's claimed impairments.
18. While the Tribunal does not question Dr Lau's medical expertise and was greatly assisted in understanding the diagnostic process and the spectrum of hypermobility disorders, it does approach his evidence regarding the question of permanency of impairments with caution. Accordingly, the Tribunal must consider all the relevant evidence before it.

1. The Applicant consulted with a range of practitioners including her GP, Dr ES, an orthopaedic surgeon Dr Leong, rheumatologists Dr Lu, Dr Anand and Dr Lau, OTs Ms LG, Ms LG and Ms CL, and a physiotherapist Mr JW in relation to her physical impairments.
2. Dr ES was involved in referrals but has not been involved in treatment, for example, by prescribing pain medication.
3. Dr Anand recommended physical therapies and mobility aids, however there is no evidence as to what he meant by mobility aid which could include a walking stick, braces, a walker, or a wheelchair. His recommended physiotherapy involving a comprehensive assessment and plan that included "tailored pain education and developing an activity plan with aim to functional restoration, SMART goal setting, improving physical tolerances, upgrading physical activity and limit avoidant behaviours".[205] He also considered that psychological challenges were contributing to the Applicant's predicament.
4. The Tribunal is of the view that Dr Anand clearly expected that the Applicant's engagement with physiotherapy would lead to some significant improvement in her impairments. His description of the intended aims, including 'functional restoration', could suggest a remedy approaching cure. There is no evidence that the Applicant followed the recommendations of Dr Anand, either with her own physiotherapist or the physiotherapists recommended by him. It was therefore seemingly premature of Dr Anand to also opine "the disability impacts her function in a persistent and permanent manner".[206]
5. The letters and reports from Dr Lau make limited recommendations regarding treatment and appear to rely on reports provided by the Applicant's physiotherapist and OTs. For example, on 5 February 2024, Dr Lau wrote:

[The Applicant's] physiotherapist recommends ongoing physiotherapy to manage her symptoms related to hypermobility. She will require a graduated exercise program, proprioception training, posture awareness and correction. These interventions aim to improve joint stability, and to maintain [the Applicant's] functional abilities.[207]

6. Ms LG used the term 'graduated exercise program' in her first report dated 24 January 2024, subsequently provided to Dr Lau.[208] Both Dr Lau and Ms LG indicate that these interventions can improve one of the key impairments - joint instability. However, despite this, Dr Lau goes on to write "no further intervention would improve her functional capacity. Her condition is stabilised and has reached maximum medical improvement".[209] The contradictions in his opinion are difficult to reconcile.
7. There was limited evidence regarding the Applicant's engagement with physiotherapy despite her claim that she had engaged in treatment from 2021.[210] Dr Lau asserted that she had undergone "extensive" intervention but somewhat paradoxically noted in his report that the Applicant had not needed to see her physiotherapist for 8 months prior to his assessment.[211]
8. A letter from physiotherapist Ms AL dated 26 April 2023 confirmed the Applicant had attended physiotherapy from January 2023 until March 2023 though she did not indicate the number of sessions attended. Ms AL noted that after 6 weeks, "hamstring deficit improved. Quadriceps, no change. Ankle mobility increased. More strengthening program targeting similar muscle groups incorporating impacts and proprioception".[212]
9. On the 5 January 2024, Mr JW recommended weekly physiotherapy "to manage her symptoms related to hypermobility".[213] A second report from Mr JW dated 13 February 2025 opined that "while the aim is to improve functional outcomes such as walking/standing tolerance, it is more realistic to expect that ongoing physiotherapy acts to prevent further decline or manage symptoms".[214] It is unclear why Mr JW thought it more realistic that physiotherapy would only prevent further decline, given the Applicant had not followed his and Dr Anand recommendations for regular physiotherapy, nor had she avoided high impact activities. Mr JW confirmed the "treatment to date has been focused primarily on addressing the low back pain and left patellofemoral pain" and that "moderate improvement in pain level was noted at the end of the 5 sessions (July 2024)".[215] The Applicant did not re-attend physiotherapy with Mr JW until January 2025 to obtain the second report for these proceedings.[216]
10. As mentioned above, several practitioners recommended strength based exercises. Ms LG recommended a graduated exercise program in January 2024 and this recommendation was adopted by Dr Lau in his letter of February 2024. Dr Anand also said the Applicant would benefit from physical therapies in December 2023.
11. There was inconsistent evidence regarding the Applicant's attendance at the gym and/or completing strength-based exercise despite Dr Lau's evidence that "muscular strengthening is very important" for managing the physical impairments.[217] The Applicant gave evidence that she attends the gym about once a week to use seated weight machines and that she can lift a 1.5 kg weight above her head and can curl a 2.5kg dumbbell. She had previously told her physiotherapist that she attended the gym 4 times per week.[218] The Husband initially gave evidence that the Applicant hadn't been to the gym since last year. He appeared to resile from that evidence, later suggesting she might do gym exercises as part of her wheelchair tennis training. Having reviewed the oral evidence carefully, the Applicant clearly indicated that she used to go to the gym 3 or 4 times per week but was now going about once per week. This inconsistency in evidence between the couple is significant given they both work from home and the Husband is said to carry out most tasks of daily living for the Applicant.
12. The Applicant also told the Tribunal she completes daily stretches, incorporating techniques from a physiotherapist she saw in 2021 as well as later physiotherapists. Her evidence regarding daily exercise appeared vague and it was unclear why she would still be using techniques from 4 years ago given the reported functional decline. Ms CL reported that the Applicant was "managing exercise for only 30 minutes to an hour with rest breaks due to fatigue from muscle weakness and joint instability".[219] Mr JW wrote on 13 February 2025 that "education was provided regarding activity modification, a personalised exercise program and taping management".[220] His first letter, a year earlier, made no mention of the provision of an exercise program.
13. There was inconsistent evidence regarding the issue of pain. As discussed above, Dr Lau did not seem to think that pain was a major factor in the Applicant's presentation. This conclusion is not supported by other evidence which recorded "chronic pain",[221] "pain when walking more than 2km",[222] "requires...exercise program...and pain management to manage the symptoms associated with her condition",[223] "widespread joint pain and chronic pain in left hip and knee"[224] and "low back pain".[225] Rheumatologist and pain medicine consultant, Dr Anand, clearly thought chronic pain was a problem and considered both physical and psychological factors were contributing to her predicament.[226]
14. This leads to a further issue that must be considered by the Tribunal. While the Applicant did not assert that any psychological issues were contributing to her physical impairments, there was evidence, including from pain specialist Dr Anand, to suggest that underlying mental health concerns are relevant. It flows that if the Applicant has underlying mental health issues that could be contributing to her physical impairments, that those issues may require further assessment and treatment before determining whether the physical impairments are permanent.
15. Psychiatrist Dr RB noted the Applicant had a history of Generalised Anxiety Disorder and "personality traits".[227] A clinical psychologist saw the Applicant in 2016 for a suspected eating disorder and the treatment of anxiety and depression.[228] Provisional psychologist, Ms IG's clinical notes reveal that the Applicant experiences frequent anxiety and likely has severe depression.[229] Following a screening assessment, Ms IG concluded "result suggests PTSD likely present".[230] Ms IG confirmed that she had not provided treatment for these conditions or provided a referral for the Applicant to obtain treatment. There was no evidence of the Applicant receiving treatment for mental health issues in the past 2 years, for example, under a mental health care plan.

1. The Tribunal makes the following findings in relation to the treatment of the Applicant's physical impairments:

(a) The Tribunal accepts Dr Lau's evidence that ongoing muscle strengthening is important for managing impairments arising from hEDS. > > (b) The Tribunal is not satisfied on the evidence that the Applicant has engaged in regular strength-based exercise programs, either at home or in a gym, as recommended by Dr Lau and Ms LG. > > (c) The Tribunal is not satisfied on the evidence that the Applicant has engaged in regular physiotherapy as recommended by Dr Anand and Mr JW. This is particularly concerning given the claimed level of physical impairment and associated functional decline over the past 2 years. > > (d) The Applicant did not provide any explanation or evidence for not engaging in regular physiotherapy except that she couldn't afford it. For the reasons mentioned above, the Tribunal does not accept that regular physiotherapy treatment is not available to the Applicant. > > (e) The letters/reports provided by Mr JW were brief. They did not provide the level of detail and explanation that one would expect from a physiotherapist who was treating a 27-year-old woman who had gone from playing tennis and snowboarding to being unable to walk beyond 3 - 5 minutes in the space of less than 2 years and who was transitioning to daily wheelchair use. > > (f) The Applicant continued to snowboard contrary to Dr Lu's medical advice to avoid high impact activities. By not making appropriate changes to her lifestyle, the Tribunal cannot be satisfied that this activity has not aggravated her physical impairments. > > (g) Due to the inconsistencies in evidence regarding the issue of pain, the Tribunal cannot be satisfied that the issue of unmanaged pain is not contributing to the Applicant's other physical impairments and/or that her pain has been optimally treated. > > (h) Due to the evidence regarding the Applicant's underlying mental health issues, the Tribunal cannot be satisfied that her psychological conditions are not contributing to the Applicant's physical impairments. Further, there was no evidence that her longstanding diagnosis of depression and anxiety have been optimally treated in recent years. The Applicant's symptomology, found to be consistent with PTSD has not been reviewed by an appropriately qualified practitioner and therefore treatment options have not been recommended.

1. In this case, the Applicant's contention that her impairments are permanent would likely invite a conclusion that her inability to walk is also permanent. In the absence of any coherent medical or allied health explanation as to why this has occurred so rapidly and in apparent contradiction to Dr Lau's assessment that her condition was stable and would not require daily use of a wheelchair, the Tribunal considers rule 5.6 is relevant.
2. There is limited authority on the operation of rule 5.6. In the recent case of Richardson and National Disability Insurance Agency [2024] AATA 3505, the Tribunal stated:

However, Rule 5.6 is also relevant. As set out above, this provides that an impairment may require medical treatment and review before a determination can be made as to permanence, and:

"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".

As already canvassed above, I consider there is further treatment available to Mr Richardson, namely participation in the RNSH Pain Clinic program, which is likely to substantially relieve the impairment attributable to his chronic back pain. I accept it is unlikely the program will completely cure or eliminate Mr Richardson 's pain. However, as explained by Dr Gorman, there is a good prospect the program will substantially reduce the pain experienced by Mr Richardson, and the limitations resulting from that pain....

Having regard to this evidence, I have concluded Mr Richardson 's chronic pain impairment does require further treatment and review before an accurate determination can be made as to its permanence or likely permanence. On the evidence, participation in the RNSH Pain Clinic program is likely to have a dramatic impact on this impairment and reduce it substantially. Given the degenerative changes in Mr Richardson's back are not particularly unusual for his age, it is even possible the program may result in something approaching a cure. In these circumstances, in my view it is premature to attempt to assess the permanency or likely permanency of the impairment. Accordingly, I am also not satisfied this impairment is permanent within the meaning of the Act and the Access Rules.

For completeness, I should add that even if Rule 5.6 had not operated to exclude permanency, I would not have been satisfied that Mr Richardson 's chronic back pain had the "enduring" quality necessary to establish permanency within the meaning of the Act. While the physical degenerative changes in Mr Richardson's back will not change, it is clear on the evidence the same cannot be said for the chronic back pain he is currently experiencing. Both doctors agreed that in circumstances such as this, pain is a complex and multifaceted phenomenon, moderated and affected by many factors. It can also be influenced and ameliorated by many of the modalities deployed by chronic pain programs.

While an impairment can be permanent notwithstanding fluctuations or positive changes in its impact on a person's functional capacity, it is not tenable in my view to regard an impairment as permanent in circumstances where treatment offers the possibility of a dramatic and lasting improvement which will substantially increase a person's functional capacity. Where this is the case, in my view it is simply not accurate to say that the person's current impairment is permanent. The concept of 'impairment' has both a qualitative and a quantitative dimension. Even where it is likely a person's impairment will persist but at a much lower level, it would not be accurate, or consistent with the aims and objectives of the Act, to regard their current impairment as permanent.[231]

1. The decision in Richardson appears to partially conflate rules 5.4 and 5.6 by considering both the need for the medical review alongside questions about the efficacy of the treatment; for example, whether the treatment would remedy Mr Richardson's impairments in a manner 'approaching a cure' as set down by Davis.
2. To this Tribunal's mind, a medical review refers to a systematic assessment and evaluation of a person's conditions, impairments and treatment options, undertaken by a qualified and independent medical practitioner. It would often involve, but is not limited to, some or all of the following actions:

(a) Reviewing all relevant medical records and reports. > > (b) Re-assessing, and if necessary, obtaining a second-opinion regarding a relevant diagnosis, particularly where important information was previously unavailable or not considered. > > (c) Undertaking any necessary screening, testing or assessment for any disease or disorder (including mental health conditions) likely to be contributing to a sudden, significant and/or unexplained change in presentation. > > (d) Consulting with independent and suitability qualified allied health practitioner(s) trained to assess certain impairments and/or functional capacity. > > (e) Reviewing previous treatments undertaken, including compliance and efficacy (supported by clinical data where possible). > > (f) Reporting conclusions and making recommendations.

3. Depending on the outcome and/or recommendations arising from a medical review, there may be a need for further medical treatment. That will ultimately turn on the facts of each case.
4. To my mind, rule 5.6 is concerned less with the efficacy of a known, available and appropriate treatment. It is more concerned with matters like the present one; where the quality of evidence was largely unreliable, and significant questions persist as to the nature of the Applicant's impairments and the extent to which they can be said to cause the apparent rapid decline in functional capacity.
5. The Tribunal finds the following impairments require further medical review before they are considered permanent, including:

(a) Pain > > (b) Hypermobility / joint instability > > (c) Loss of strength, muscle weakness/fatigue, and reduced flexibility > > (d) Pigeon toes and altered gait.

6. A medical review of the Applicant's impairments may necessitate a review of her hEDS diagnosis, but that will ultimately be a matter for a medical professional.
7. In the Tribunal's view, a medical review is required to rule out any underlying disease or disorder which might explain the Applicant's rapid deterioration. Further, the Applicant's claimed subluxations and dislocations should be directly assessed given their possible contribution to her pain and Dr Lau's opinion that she was unlikely to be experiencing full hip dislocations. While Dr Lau did not recommend further review by an orthopaedic surgeon, the Tribunal considers such a position could not be maintained if the Applicant is shown to experience daily full hip dislocations.
8. Dr Lau also disputed the need for the Applicant to be referred to a pain management clinic, however the Tribunal is satisfied on the entirety of the evidence that the Applicant has reported pain as a significant factor to other practitioners. It is difficult for the Tribunal to determine whether pain may have been reported to the other practitioners for the purpose of bolstering the claimed impact on her functional capacity or whether pain may have been under-reported to Dr Lau to avoid the need for further treatment, or some other reason entirely. Either way, the nature and degree of the Applicant's pain remains unclear, and the Tribunal cannot be satisfied that it is permanent until it is reviewed and those questions resolved. The Tribunal is satisfied that the Applicant's mental health conditions should form part of any review.
9. While the Tribunal is not necessarily required to identify the person or provider to conduct such a medical review, the Tribunal understands from Dr Lau's evidence that the Applicant could be referred to a pain management clinic for further review by a pain specialist. Dr Lau gave evidence that pain management clinics routinely use psychologists, OTs, exercise physiologists and physiotherapists as part of a multidisciplinary approach.
10. The Tribunal is of the view that a multidisciplinary team could most appropriately determine the Applicant's impairments, the underlying causes, and any associated functional decline given the level of inconsistent and contradictory information in this matter. A copy of the Tribunal's decision might aid those tasked with conducting further investigations or assessments. A multidisciplinary team would likely have the skills to independently assess and test the degree to which the Applicant's loss of strength, muscle weakness/ fatigue, reduced flexibility, hypermobility, joint instability, pigeon toes and mental health conditions interact with or contribute to her pain. Such a review would also likely provide recommendations for any treatments, both medical and allied health, that can stabilise, improve and/or remedy the different impairments. In the Tribunal's view, this is essential before a determination can be made as to whether the Applicant's impairments are permanent, either individually or collectively.
11. The Tribunal is satisfied that by operation of rule 5.6, the Applicant's impairments of pain, hypermobility/joint instability, loss of strength, muscle weakness/fatigue, reduced flexibility and pigeon toes/altered gait cannot be considered permanent at this time without further medical review.

1. Dr Lau gave evidence that deconditioning occurs when people do not use their muscles and explained that physiotherapists can significantly restore people's function if they have been "slacking off". The Applicant told several practitioners that she previously went to the gym about 4 times per week, however she told the Tribunal she now only goes about once per week. The Applicant achieved improved hamstring flexibility and increased ankle mobility after 6 weeks of physiotherapy with Ms AL. Dr Anand's recommendations were aimed at functional restoration, improving physical tolerance and upgrading physical activity. Mr JW recommended weekly sessions of physiotherapy but did not say for what duration. Ms LG recommended a graduated exercise program which was also endorsed by Dr Lau.[232]
2. In relation to the impairments of loss of strength, muscle weakness/fatigue, and reduced flexibility, the Tribunal is satisfied that regular physiotherapy combined with a graduated exercise program is a treatment that is both available and appropriate to the Applicant. The Access guideline states that treatment can include changes to one's diet and lifestyle. It seems highly appropriate that the Applicant also adjust her lifestyle by abstaining from high impact recreational activities that she has been advised not to do because of the potential aggravation to her joints.
3. However, the loss of strength, muscle weakness/fatigue and reduced flexibility refer to limitations or impairments that are highly variable and attributable to different conditions. There was insufficient evidence to satisfy the Tribunal of the degree to which the Applicant experiences these impairments, particularly as the OTs did not carry out objective testing and clinical observation. Davis requires the decision maker to consider the degree to which treatments are likely to alleviate the impairments or ease their severity or impact, in a manner approaching cure.
4. In these circumstances, the Tribunal is cautious about making a finding that physiotherapy combined with a graduated exercise program and abstinence from snowboarding treatments would remedy the Applicant's impairments. There was simply insufficient detail in the evidence before the Tribunal to be confident of that conclusion. However, in line with the Tribunal's findings in relation to rule 5.6, a review of the Applicant should include consideration of these treatment options, including the fact that the Applicant has not followed recommended treatments.
5. Accordingly, the Tribunal finds that there are known, available and appropriate evidence-based clinical and medical treatments that would improve the Applicant's impairments, including physiotherapy, strengthening/conditioning exercises and abstaining from snowboarding. However, the Tribunal is unsure on the available evidence about the degree of likely improvement and therefore whether such treatments could be said to remedy the Applicant's impairments in line with the authority in Davis. Further medical review will likely answer that question.
6. The Applicant does not meet section 24(1)(b) because of rule 5.6.

1. The Tribunal is not required to consider the Applicant's functional capacity in circumstances where it has found that it cannot be satisfied of the permanency of her impairments. However, due to the severity of the claimed impairments, the Tribunal considers it preferable to explain why it could also not be satisfied that the Applicant's experiences substantially reduced functional capacity in the domains of mobilising and/or self-care.
2. The Access guideline describe the relevant domains as follows:

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.[233]

Your impairment substantially reduces your functional capacity if you usually need disability specific supports to participate in or complete the above tasks. > > These disability-specific supports include: > > • a high level of support from other people, such as physical assistance, guidance, supervision or prompting. > > • assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.[234]

4. As recalled earlier in this decision, the legislation pertaining to the access criteria requires "a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted".[235]
5. The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[236]

[68] In any case before a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; 44 FLR 41 per Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person "must satisfy" the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest: see generally, McDonald v Director-General of Social Security [1984] FCA 59; 1 FCR 354 at 356-357 and 358 (per Woodward J), 366 (per Northrop J) and 369 (per Jenkinson J); Ward v Western Australia [1996] FCA 1452; 69 FCR 208 at 215-218; and Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81; 289 ALR 237 at [18] and the cases there cited. (Tribunal's emphasis).

6. This was a complex case because whilst the Applicant claimed to experience severe impairments such as daily hip dislocations and a very dramatic reduction in functional capacity, the reasons for this remained largely opaque.
7. As discussed further below, the Applicant has not persuaded or satisfied the Tribunal on the evidence before it that the claimed physical impairments result in substantially reduced functional capacity under the domains of mobility and self-care. This lack of persuasion is largely attributable to 3 key reasons including:

(a) Inconsistencies with evidence and behaviour > > (b) Limitations of functional capacity assessments > > (c) An unexplained dramatic reduction in functional capacity without supporting medical evidence or explanation.

8. Simply put, the Tribunal is not sure why the rapid reduction in functional capacity has occurred, if at all, and what the Applicant's functional capacity is at this time.

1. In September 2023, Ms LG opined that based on the Applicant's completion of the Care and Needs Scale (CANS), she requires up to 11 hours of support per day.[237] This conclusion is difficult to reconcile with the Applicant's ability at the time to work full-time (mostly from home), drive a car, walk 2km, independently complete transfers, not have a history of falls, have a normal gait pattern, and complete most self-care tasks.[238]
2. The use of one's hands is key to performing many, if not most, self-care tasks. However, the evidence regarding the Applicant's hand function was often inconsistent and contradictory. For example, despite the Applicant's reported difficulty holding a pen due to reduced grip strength and/or hyper-extension in Ms LC's report,[239] Ms LG noted in her report that the Applicant "hold (sic) pencil so tightly its hard to use object".[240] Dr Lu reported the Applicant's grip strength and hand function as normal.[241] Ms LB reported issues with the Applicant's grip strength but did not test it. The Applicant and her husband told the Tribunal that she plays weekly wheelchair tennis. The Applicant explained she could hold and curl a 2.5kg dumbbell. The husband told the Tribunal the Applicant couldn't carry the weight of a plate with food on it from the kitchen to the dining room table. Ms LG said the Applicant "reports she is physically able to complete all dressing tasks" and independently brushes her teeth twice a day.[242] In her second statement, the Applicant said she needs assistance with buttons and zippers "due to poor fine motor skills and pinch weakness".[243] The Applicant reportedly doesn't like the noise associated with "getting out and using pots/pans" and "panics about burning herself due to poor concentration",[244] suggesting the Applicant can cook, albeit with some difficulty. However, the Applicant told the Tribunal she can't cook. In her second statement, the Applicant said she does not have the ability to cut her food. Further, she cannot use a knife or cooking utensils or hold pots and pans due to fine motor skills and muscle weakness.[245] However, she told the Tribunal she can use a pair of gardening secateurs to trim small plants. Ms CL reported the Applicant can self-propel her wheelchair for 5 to 10 minutes with 30 seconds of rest every minute.[246] The Applicant works a full-time job, mainly from home, and was observed to send emails to the Tribunal without apparent difficulty. She is independent with toileting,[247] with no suggestion that she requires help to wipe her bottom.
3. The Applicant told Ms CL that she struggles to remain seated for extended periods due to joint pain and "frequently needs to reposition while sitting".[248] This was not observed by the Tribunal over 6 days of hearing, with the Applicant seated for periods of between 2 to 3 hours without any request for a break.
4. Ms CL reported that the Applicant has "impaired balance and coordination, resulting in falls approximately once a month".[249] In a separate part of her report, Ms CL writes the Applicant "experiences multiple falls daily and has sustained minor injuries".[250] Ms LG wrote "no reported falls".[251] In her second statement, the Applicant indicated that if she exceeded her walking capacity of 1000-1500 meters she would experience "significant symptom exacerbation, injury and falls".[252] She also claimed to have "a history of falls in the shower and bath" and falls on stairs.[253] The husband indicated she falls often, including out in public.[254] However, his description of the Applicant falling in the shower prior to the hearing using present tense was not persuasive. The Applicant's physiotherapists did not mention falls in their reports nor was there any mention of falls in the Applicant's GP records obtained under summons. Dr Lau did not mention falls in his letters.
5. There were several inconsistencies in reports regarding the Applicant's gait, which are described at [134] and her experience of pain at [273] above. There was no medical or allied health evidence recommending the use of a wheelchair prior to the Applicant purchasing a wheelchair and electing to use it, as discussed at [81 - 86].
6. The Applicant gave detailed oral evidence to the Tribunal about what happens when her hip dislocates multiple times per day, at [92]. She had not reported this to Dr Lau. When the Tribunal read to Dr Lau the Applicant's evidence, he seemed to doubt whether the Applicant was experiencing a full dislocation, suggesting it might be a more severe subluxation. He indicated a full dislocation was incredibly painful and would ordinarily require attendance at an emergency department. The Applicant gave evidence that when a full dislocation occurs, her left hip protrudes, distinguishing it from partial dislocation or subluxations. The Applicant said it was very uncomfortable however, she did not describe it as painful. On her description, it required a relatively brief moment of sitting down or using a step to get it back into the socket, without third-party assistance. These subluxations and dislocations were not reported to occur while snowboarding. Despite her evidence that they occur after a few minutes of standing, no practitioner observed a subluxation or dislocation or described one in any detail. Her husband, in his statement, said "when she walks, even short distances, she experiences dislocations in her lower limbs". It seems a curious omission not to describe a full hip dislocation in some detail.
7. The Applicant gave evidence that her mobility had been declining for approximately 5 years and that hip and knee pain was a long-standing issue. However, she and her husband bought a two-storey townhouse in early 2023.
8. The Tribunal is satisfied that Applicant was still playing able-bodied tennis in September 2024, albeit possibly with breaks, which she did not mention in her second statement. In her second statement, the Applicant reported that on an average day she could walk 500 meters on a flat, sealed surface at a time but would experience a symptom flare up after 300 meters. She could stand for 2-3 minutes or up to 5 minutes of dynamic standing. Despite playing tennis, she required the assistance of her partner to balance when bathing and dressing and could not put away items around the home due to limited standing and walking tolerance.[255] The Applicant said she could drive up to 30 minutes and drove about 10-15 minutes once per week. She also travelled on public transport typically once a fortnight or occasionally weekly. She claimed: "If I happen to travel without my wheelchair on public transport, I require someone to carry my bag and assistance to safely navigate on and off the train due to balance and instability issues".[256] This assertion is hard to reconcile with her ability to balance herself while playing tennis and snowboarding.
9. Despite the claimed rapid deterioration over the past 2 years, the Applicant did not see a physiotherapist with any regularity particularly in the 6 months between July 2024 and January 2025, she did not abstain from high impact sports like snowboarding and tennis, and she did not follow-up with Dr Lau over the past year in circumstances where she was essentially transitioning to daily wheelchair use and claiming to experience daily hip dislocations. Clinical notes from Ms IG did not reveal any clear distress about her functional decline including the impact on her new marriage and the adjustment to daily wheelchair use, or concern about whether her functional decline would continue.

Limitations of OT functional capacity assessments and reports

1. Ms LG was the first OT to assess the Applicant's physical impairments in September 2023. Ms LG was later "requested to provide a report in preparation for [the Applicant's] upcoming NDIS Plan review". Ms LG indicated her second "report provides additional information to the Functional Assessment Report completed on 21/09/2023".[257] The functional assessment did not occur in the Applicant's home, did not include photos, and did not indicate whether any functional tasks were directly observed. Despite these obvious limitations, Ms LG recommended the Applicant be assessed for an "appropriate wheelchair to assist with access to the community for engagement in shopping and leisure activities".[258]
2. Ms LB also did not carry out the level of objective testing and clinical observations that the Tribunal would expect to see in relation to a 27 year old woman who was transitioning to a wheelchair whilst also living in a two-storey house. She did not question whether the Applicant required a wheelchair, and she did not know if a practitioner had recommended the Applicant use one.
3. As discussed above, Ms CL had very limited experience conducting functional capacity assessments for clients in Australia, with previous experience in the Philippines focused on children. She conceded that most of her report was based on the Applicant's self-reports. Ms CL conducted, what the Tribunal considers, a very limited functional assessment of what the Applicant could and could not do in the home. Further, many of her conclusions about the Applicant's ability to communicate, read and process were at odds with the Tribunal's own observations of the Applicant over several days.
4. In the Tribunal's view, all the OT reports had a clear goal of supporting the Applicant to obtain the supports she sought from the NDIS, rather than providing an objective and independent measure of the Applicant's function including associated recommendations based on clinical judgement. In these circumstances, the Tribunal's ability to confidently rely on these reports is compromised. The Tribunal cannot be satisfied that the conclusions reached in the reports represent an accurate picture of the Applicant's functional capacity or the supports she requires.

Dramatic reduction in functional capacity without supporting medical evidence

1. There was no medical or allied health explanation for the Applicant's dramatic reduction in functional capacity, particularly in circumstances where Dr Lau had considered her condition stable and did not anticipate she would require daily use of a wheelchair.
2. There was evidence to suggest that the Applicant has become increasingly reliant and dependent on her husband. The Husband acknowledged that she now required him to apply sunscreen to her face and organise her clothes in circumstances where she previously did it herself. The Husband saw no inconsistency with the Applicant's ability to grasp a tennis racket with her inability to carry a plate to the dinner table. He seemed to consider it unreasonable to expect the Applicant to walk downstairs to get a snack from the kitchen in circumstances where she snowboards, appearing to attribute part of the Applicant's inability to her ASD and the overwhelm of "going from task to task".[259]
3. There may be very good reasons for the apparent rapid decline in the Applicant's functional capacity however that evidence was not forthcoming in these proceedings. The Tribunal cannot exclude the possibility that some of the reported functional decline, and the use of assistive technology like the wheelchair, has occurred for the purposes of bolstering the Applicant's claims under section 24(1)(c). The Applicant's relatively in-depth knowledge of the deeming provisions, in this regard, was noted.

1. There is no need to consider the deeming provisions under rule 5.8 in circumstances where Tribunal is unable to achieve state of satisfaction about what the Applicant can and can't do. The Tribunal would need to be satisfied that the Applicant is unable to participate effectively in the relevant activity without the assistive technology or equipment and/or requires assistance from another person to participate in an activity. The mere use of assistive technology or the bare assertion of reliance on a partner does not engage these provisions without cogent and reliable evidence.
2. For the same reason, the Tribunal is not satisfied that the Applicant's physical impairments result in substantially reduced functional capacity in the domains of mobility or self-care.
3. Section 24(1)(c) is not met.

1. As the Tribunal has not found that the Applicant's impairments can be said to be permanent, she cannot satisfy section 25(1)(a)(ii) and therefore does not meet the early intervention criteria.

1. As the Tribunal finds that the impairments arising from hEDS do not satisfy the access criteria under sections 24 or 25 of the NDIS Act, and therefore section 34(1)(aa), it is unnecessary to consider whether the supports requested by the Applicant in relation to those impairments satisfy the remaining criteria pursuant to s 34(1) of the NDIS Act.

1. Finally, the Tribunal wishes to be clear that this decision does not affect the Applicant's current status as a participant of the scheme. However, due to the evidence and findings contained in this decision, the Tribunal cannot exclude the possibility that the Respondent may take further action pursuant to section 30 of the NDIS Act in relation to revocation of participant status. Any decision to revoke an Applicant's status is a separate reviewable decision pursuant to section 99 of the NDIS Act.

The Tribunal, pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) sets aside the decision under review and remits the matter for reconsideration with the following order:

1. 12 hours of psychology support in relation to impairments arising from the Applicant's Autism Spectrum Disorder (ASD) is not a reasonable and necessary support and is not to be approved for inclusion in her statement of participant supports (SOPS).

2. Any additional psychology support is not reasonable and necessary and is not to be approved for inclusion in her SOPS.

3. The Applicant does not meet the requirements of ss 24 or 25 of the National Disability Insurance Scheme Act 2013 (Cth) in relation to impairments arising from Ehlers-Danlos Syndrome (EDS) - Hypermobility Subtype (hEDS) and the supports requested in relation to these impairments are not reasonable and necessary supports.

[3] See Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).

[5] The names of local treating practitioners have been altered where they might tend to reveal the identity of the Applicant.

[7] See Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [37]- [38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J); Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission [2019] HCA 16; (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.

[8] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].

[9] The summons records are contained in JHB2 (110 pages) and JHB3 (488) pages.

[10] Explanation of the relevant law has been set out in previous decisions and is repeated here.

[11] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].

[12] Mulligan v National Disability Insurance Agency [2015] FCA 544 ('Mulligan') at [55].

[14] National Disability Insurance Agency v Foster [2023] FCAFC 11 ('Foster') at [44].

[15] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [202].

[16] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).

[21] Applicant's and Husband's oral evidence.

[22] See also Dr Leong's letter dated 1 September 2023 at JHB3, p143.

[24] See Letter from Dr Lu to Dr Leong dated 31 October 2023 at JHB3, p3.

[27] JHB2, p8. The Tribunal understands the term 'kinesiophobia' to refer to the fear of movement due to injury or pain.

[34] See JV of JHB3, p457-460 confirming surgery occurred in October 2023.

[73] JHB3, pp130. See also consults on 26 July 2023 in relation to joint pain in both ankles (p134) and back and joint pain on 19 March 2024 on p138.

[78] Applicant's oral evidence. See also AA4 of JHB4.

[102] Defa and The CEO, National Disability Insurance Agency (NDIS) [2024] ARTA 34 at [36].

[159] The Pocket Macquarie Dictionary, Second Edition, 1989.

[160] Parliament of the Commonwealth of Australia, National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Bill 2024 - Explanatory Memorandum, p27-28. See https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r7181_ems_f83281ef-0f46-4fbb-a59f-2e19439dcacb/upload_pdf/JC012589.pdf;fileType=application%2Fpdf

[161] See section 24(2) and (3) of the NDIS Act.

[162] Our Guidelines - Becoming a participant - Applying to the NDIS, 10 December 2024, p9.

[171] Applicant's oral evidence. See also T1A of JHB1.

[178] At [118] referring to [113].

[179] World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3 (WHO (2002) at page 2.

[180] World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva: International Classification of Functioning, Disability and Health (ICF)

[181] Re Schwass and NDIA [2019] AATA 28 at [34]- [35].

[184] Convention on the Rights of Persons with Disabilities. Opened for signature 30 March 2007. 2515 UNTS 3

[188] T1G of JHB1, p58, T1D of JHB1, p44,

[189] A10 of JHB1, p313 and A13 of JHB1.

[190] National Disability Insurance Agency v Davis [2022] FCA 1002 ("Davis").

[191] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

[192] See Davis at [75] and [131]. See also [158].

[233] Our Guidelines - Becoming a participant - Applying to the NDIS, 10 December 2024, p9.

[234] Our Guidelines - Becoming a participant - Applying to the NDIS, 10 December 2024, p9.

[236] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).

[244] T1A of JHB1, p25. The Tribunal did not observe issues with poor concentration over 6 days of hearing, with the Applicant able to direct both the Tribunal and Counsel to relevant documents on several occasions.