XCFB and National Disability Insurance Agency [2022] AATA 4121 (2 December 2022)

PRACTICE AND PROCEDURE - contested interlocutory application for a confidentially order to be made under s 35 of the Administrative Appeals Tribunal 1975 (Cth) - consideration of general principle in NDIS Act in respect of dignity and privacy - interlocutory application granted ex tempore

Health Records Act 2001 (Vic)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

Privacy Act 1988 (Cth)

Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201

National Disability Insurance Agency v Davis [2022] FCA 1002

Re Rana v Military Rehabilitation and Compensation Commission (2009) ALD 217

NDIS Operational Guidelines: Applying to the NDIS | NDIS

1. This application is about whether the Applicant should be granted access as a participant to the National Disability Insurance Scheme (NDIS). The Applicant seeks review of a decision made on 29 January 2020 under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), confirming an earlier decision by the Respondent, the National Disability Insurance Agency (NDIA), not to grant XCFB access to the NDIS.
2. The Tribunal's jurisdiction arises under s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), operating in conjunction with s 103 of the NDIS Act.
3. The Applicant's full name and date of birth are contained in Annexure A to these Reasons for Decision. At the commencement of the hearing, the Tribunal dealt with an interlocutory application made by the Applicant for orders under s 35 of the AAT Act. Specifically, an order that the identity of the Applicant not be disclosed in the Tribunal's Decision and Reasons for Decision. This application was opposed by the NDIA. The Tribunal granted this application, in favour of the Applicant, for the reasons set out in Annexure B to these Reasons for Decision headed "Application for Confidentiality Orders". As a consequence of that Order, the pseudonym, "XCFB" will be used in place of the Applicant's name and any other personal identifying information has been omitted in this Decision and Reasons for Decision.
4. For the reasons set out below, the Tribunal sets aside the decision under review and, in substitution, decides to grant XCFB access to the NDIS on the basis that she meets the mandatory access criteria under s 21 of the NDIS Act.

1. XCFB is a 36-year-old woman. She was born in Iran and immigrated to Australia when she was nine months old. XCFB has two children - the youngest is about 6 years old, and the eldest is about 12 years old.[1] XCFB and her two children live together in a single-level house with a garden in a suburb of Melbourne. This house is owned by her father and XCFB lives there rent-free, with her two children.
2. XCFB used to work as a hairdresser. She ceased working in 2010 and has received the disability support pension since 2020. She also receives child support payments and/or financial assistance from the respective fathers of her two children.
3. XCFB's mother visits XCFB during the day to assist her in the home. XCFB also refers to her aunt as a support.[2] XCFB's father lives interstate. XCFB's parents divorced when XCFB was about five years old. XCFB reported that she had witnessed her father being violent towards her mother. XCFB has a brother who is 12 years her senior and who she reports has helped her previously with her shopping or to collect her pharmaceuticals. He is unable to assist her currently due to his own mental health issues.
4. When asked by the Tribunal at the hearing whether both of XCFB's children were in her fulltime care, she said that she did not have custody agreements, but her eldest child saw his father "a lot" and the youngest child, "not so much". She said the youngest child stayed with her every night, but her eldest child stayed with his father every weekend from Friday through to Sunday.[3]

1. In late-2019, XCFB made a request to the NDIA under s 18 of the NDIS Act, to be granted access as a participant to the NDIS. In the Access Request Form completed by or on behalf of XCFB on 8 October 2019 (Access Form), XCFB listed her "primary disability" as hypermobile EDS, and her "other disabilities" as orthostatic intolerance, vasovagal syncope, and gastroparesis (that is, delayed gastric emptying which slows or stops the movement of food from a person's stomach to their small intestine).[4] EDS stands for Ehlers-Danlos Syndrome, which is described as a genetic disorder affecting a person's connective tissues, such as their skin, joints, and blood vessel walls. XCFB does not list any psychiatric conditions or refer to having any mental health issues on the Access Form.
2. On the Access Form, Professor Geoffrey Hebbard, who is XCFB's treating gastroenterologist from The Royal Melbourne Hospital, stated that he has treated XCFB since October 2015. Dr Hebbard listed XCFB's primary disabilities as including:[5]

(a) gastroparesis; > > (b) hypermobile EDS; > > (c) orthostatic intolerance with vasovagal syncope; and > > (d) anxiety/depression with panic attacks.

3. Dr Hebbard states on the Access Form that XCFB's mobility, self-care and self-management are impaired and that she is unable to drive safely to appointments for shopping and to do "child pick-ups". He said there was a risk of syncope.[6]
4. At the commencement of the hearing before the Tribunal, counsel for XCFB, Ms Fiona Batten, submitted that XCFB required assistance in relation to "self-care tasks, mobility, and social interaction".[7]

Decision under review and application for review by this Tribunal

1. On 4 December 2019, a delegate of the Chief Executive Officer of the NDIA (CEO) decided not to grant access to XCFB, on the basis that she did not meet the access criteria set out in s 21 of the NDIS Act, because she did not meet the "disability requirements" under s 24 (specifically, s 24(1)(b) requiring her to have an impairment which is permanent, or likely to be permanent).[8] There was no reference in this decision as to whether XCFB met the "early intervention" requirements under s 25 of the NDIS Act.
2. In December 2019, XCFB sought internal review of this decision by a "reviewer" of the NDIA under s 100(6) of the NDIS Act.[9]
3. On 29 January 2020, the "reviewer" confirmed the earlier decision not to grant XCFB access to the NDIS.[10] The "reviewer" accepted that XCFB met the "age requirements" under s 22, and the "residency requirements" under s 23 of the NDIS Act but not the disability requirements under s 24 or the early intervention requirements under s 25 of the NDIS Act.
4. XCFB sought review of this decision under s 103 of the NDIS Act, by the NDIS Division of the Administrative Appeals Tribunal (Tribunal).[11]

1. This was a particularly complex application with over 1,000 pages in total of documentary materials being placed before the Tribunal. Specifically, the parties lodged a consolidated joint hearing tender bundle (HTB) comprising:

(a) Section 1 - the parties' respective submissions: > > > (i) XCFB's statement of facts, issues, and contentions (XCFB's SFIC); > > > > (ii) NDIA's statement of facts, issues, and contentions (NDIA's SFIC); > > > > (iii) XCFB's statement in reply (XCFB's Reply Submissions); > > (b) Section 2 - a set of documents lodged with the Tribunal by the NDIA pursuant to its obligations under s 37 of the AAT Act (T-Documents); > > (c) Section 3 - XCFB's evidence including various medical reports/letters issued by: > > > (i) Professor Hebbard; > > > > (ii) Ms Sarah Riddell, XCFB's treating Occupational Therapist; > > > > (iii) Dr Angas Hamer, XCFB's treating Cardiologist and Electrophysiologist, including a report showing the results of a Tilt Table Test conducted on 1 August 2018; > > > > (iv) Dr Ken Lee, showing the results of a gastric emptying study conducted on 8 February 2021; and > > > > (v) Dr Seng Hui Tan, XCFB's treating General Practitioner. > > This section also includes two witness statements signed by XCFB and a further witness statement signed by XCFB's mother. > > (d) Section 4 - NDIA's evidence including: > > > (i) expert reports by independent Occupational Therapist, Ms Fiona James; > > > > (ii) expert reports by independent Forensic Psychologist and Clinical Neuropsychologist, Dr Peter Ashkar; and > > > > (iii) medical literature articles about treatment options for EDS, and chronic fatigue in EDS.

2. Following the hearing, the parties lodged the following closing submissions:

(a) XCFB's closing submissions dated 18 October 2021 (XCFB's Closing Submissions); > > (b) NDIA's closing submissions lodged on 26 October 2021 (NDIA's Closing Submissions); > > (c) XCFB's reply closing submissions dated 9 November 2021 (XCFB's Reply Closing Submissions).

3. Following the decision in National Disability Insurance Agency v Davis [2022] FCA 1002 (NDIA v Davis), the Tribunal provided the parties with a further opportunity to make submissions in relation to the principles referred to in this decision relating to the disability requirements under s 21 of the NDIS Act and NDIS Access Rules. The Tribunal also provided the parties with a further opportunity to be heard in relation to any financial matters impacting upon whether certain treatments were available to XCFB relevant to the consideration of whether her claimed impairments were permanent. In response, the NDIA wrote to the Tribunal and XCFB to advise that it withdrew parts of its closing submissions that brought into question the existence and permanency of XCFB's impairment, as it related to depression and anxiety. Instead, it conceded that XCFB has a permanent impairment of loss of mental function as a result of her diagnosis of depression and anxiety.
4. At the substantive hearing, both parties lodged further evidence as will be referred to in the Reasons for Decision below. XCFB gave evidence at the hearing, and she called her mother, Professor Hebbard, and Ms Riddell to give evidence in support of her application. The NDIA called Ms James and Dr Ashkar as witnesses at the hearing. At the request of the Tribunal, the NDIA also called Associate Professor Alex Holmes (A/P Holmes), as referred to in paragraph [45] below.

1. Section 21 of the NDIS Act provides that a person satisfies the access criteria if they meet:

and, at the time of considering the access request;

(b) the "residence requirements" under s 23 of the NDIS Act; and

(c) either the "disability requirements" under s 24 or the "early intervention requirements" under s 25.

1. It is not disputed by the NDIA that, at the time XCFB made her access request, she met both the "age requirements" and "residence requirements" under ss 22 and 23 of the NDIS Act. The Tribunal finds accordingly.
2. At the commencement of the hearing, Ms Batten contended, and the Tribunal agrees, that the issues for determination by the Tribunal are:

(a) whether XCFB meets the "disability requirements" under s 24 of the NDIS Act; and > > (b) if not, whether XCFB meets the "early intervention requirements" under s 25 of the NDIS Act.[12]

3. The evidence at the hearing evolved significantly from the evidentiary materials produced to the Tribunal ahead of the hearing. The NDIA outlined its position in its Closing Submissions lodged after the hearing, as follows:[13]

(a) the NDIA stated that it accepted that XCFB's "impairments" resulting from the following conditions are permanent within the meaning of s 24(1)(b) and s 25(1)(a) of the NDIS Act and are: > > > (i) hypermobility EDS (hEDS); > > > > (ii) irritable bowel syndrome (IBS); > > > > (iii) gastroparesis; > > > > (iv) cardiac arrhythmia; > > > > (v) dysautonomia[14], with postural orthostatic tachycardia syndrome; and > > > > (vi) orthostatic hypotension, causing syncope and chronic fatigue; and > > > > (vii) anxiety/depression with panic attacks;[15] > > (b) the NDIA considers that there is insufficient reliable evidence upon which the Tribunal can be satisfied that XCFB has "substantially reduced functional capacity" for the purpose of s 24(1)(c) of the NDIS Act in relation to her impairments, due to an alleged propensity of XCFB to exaggerate her symptoms; and > > (c) the NDIA considers that there is insufficient evidence upon which the Tribunal can be satisfied that XCFB meets the "early intervention requirements" under s 25 of the NDIS Act, because there is no evidence that there are any supports that can be characterised as "early intervention supports" for XCFB, which are likely to benefit her.

4. XCFB disagrees with the NDIA's contentions set out above, and she contends that she meets the "disability requirements" under s 24 or alternatively, the "early intervention requirements" under s 25 of the NDIS Act.

1. Section 209(1) of the NDIS Act provides that the Minister may, by legislative instrument, make rules prescribing matters required or permitted under the NDIS Act, or necessary or convenient to be prescribed, in order to carry out or give effect to the NDIS Act. Section 27 of the NDIS Act permits the Minister to make NDIS rules prescribing circumstances in which, or criteria to be applied in assessing whether any of, the disability or early intervention requirements are met under ss 24 or 25 of the NDIS Act.
2. Pursuant to s 209(1), in conjunction with s 27, the Minister has issued the following rules by legislative instrument - National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Access Rules).
3. The NDIA has issued policy guidance dealing with the assessment of whether a person meets the disability or early intervention requirements under ss 24 or 25 of the NDIS Act: Applying to the NDIS | NDIS. The Tribunal will refer to this policy guidance as the Access Guidelines. In accordance with established legal principles, the Tribunal will take this policy guidance into account when making this decision, unless there are cogent reasons not to do so, for instance, the policy guidance is inconsistent with the provisions of the NDIS legislative regime.

CONSIDERATION OF WHETHER XCFB MEETS THE "DISABILITY REQUIREMENTS"

1. The "disability requirements" under s 24 of the NDIS Act are made up of five mandatory criteria as follows:

(1) A person meets the disability requirements if:

(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and

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

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

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self-care;

(vi) self-management; and

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

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

(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.

1. The first criterion, under s 24(1)(a) of the NDIS Act, requires a person seeking access to the NDIS to have a "disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or to one or more impairments attributable to a psychiatric condition".
2. In NDIA v Davis, Mortimer J made the following judicial observations:[16]

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

3. The NDIA provides the following policy guidance to decision-makers in its Access Guidelines, which broadly reflects s 24(1)(a):[17]

Is your disability caused by an impairment? > > When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment. > > An impairment is a loss or significant change in at least one of: > > • your body's functions > > • your body structure > > • how you think and learn. > > To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below > > • intellectual - such as how you speak and listen, read and write, solve problems, > > and process and remember information > > • cognitive - such as how you think, learn new things, use judgment to make > > decisions, and pay attention > > • neurological - such as how your body functions > > • sensory - such as how you see or hear > > • physical - such as the ability to move parts of your body. > > You may also be eligible for the NDIS if you have a psychosocial disability. > > This means you have reduced capacity to do daily life activities and tasks due to your mental health. > > It doesn't matter what caused your impairment, for example if you've had it from birth, or acquired it from an injury, accident or health condition. > > It also doesn't matter if you have one impairment, or more than one impairment.

4. During XCFB's opening statement at the hearing, Ms Batten took the Tribunal to the key submissions in XCFB's SFIC, as reproduced below:
   1. [XCFB] "suffers from a poorly understood" and "complex" condition, Hypermobility EDS.[18] There is no specific treatment available.[19]
   2. [XCFB] is at the more severe end of the symptom/impairment spectrum.[20] [XCFB]'s pattern of symptoms are consistent with Hypermobility EDS including demonstrable changes in tissue, musculoskeletal changes, gastrointestinal symptoms, orthostatic symptoms and anxiety/depression.[21] Chronic fatigue and brain fog are also commonly seen in this condition.[22]
   3. Joint hypermobility is the defining feature of Hypermobility EDS, and [XCFB] exhibits "musculoskeletal pains due to the tissue hypermobility".[23] In practical terms, this means [XCFB] experiences pain in her joints, fingers, knees, neck and back, daily.[24]
   4. [XCFB]'s orthostatic hypotension causes "syncope and dizziness in the upright posture due to low blood pressure with certain everyday triggers for her low blood pressure events. This includes exertion and prolonged upright posture."[25] The fall in blood pressure on standing can lead to syncope.[26] [XCFB] experiences "brain fog" and cloudy vision and feels like she is about to faint.[27] She also experiences dizziness, chronic fatigue, sweating and low heart rate.[28]
5. [XCFB] has cardiac arrhythmia, which are "highly symptomatic in terms of palpitations and dizziness".[29] [XCFB] experiences a shortness of breath, fatigue, a tightness in her chest and breathlessness.[30]
6. [XCFB] suffers from gastroparesis which significantly limits her ability to eat, as ingestion of food causes nausea, discomfort and vomiting.[31] [XCFB]'s gastrointestinal features have "resulted in the need for tube feeding and intermittent 'venting' of her stomach via a surgically placed tube."[32] [XCFB]'s symptoms include chronic constipation, stomach pain, nausea, vomiting and bleeding gastritis.[33]

13. Dr Hamer considers the effects of [XCFB]'s symptoms to be "debilitating".[34]

7. Ms Batten contends that each of XCFB's impairments are permanent, and the severity of them fluctuated.[35]
8. In XCFB's Closing Submissions, she refers to the condition of hEDS as being a connective tissue disorder. In this regard, the Tribunal notes the medical report issued on 23 September 2019 by Dr Manju Salaria, Consultant - Clinical Geneticist, providing a "likely" diagnosis of hEDS in XCFB's case and in particular, the following observations made by Dr Salaria:[36]

...XCFB is likely to have a type of connective tissue disorder. Most of her clinical features can be explained by a connective tissue disorder called hypermobility EDS (hEDS). Her symptoms are mainly related to gut and autonomic instability. These features are not included in the latest clinical diagnostic criterion for (hEDS). However, we know that functional bowel disorders are seen more often in patients with this condition. hEDS can present in both structural problems such as hiatus hernias, viscertoptosis, rectoceles, and rectal prolapse as well as functional problems. Chronic severe constipation, gastroesophageal reflux, irritable bowel syndrome and gastroparesis have been reported in patients with hEDS. > > Aortic root dilation is a feature of many connective tissue disorders. XCFB's echocardiogram has shown that she has a trivial mitral regurgitation. Orthostatic hypotension is a feature of autonomic instability in hEDS and patients with this condition can also have postural orthostatic tachycardia syndrome (POTS). > > ...The underlying genetic mechanism for hEDS, is not fully understood. It is inherited in an autosomal dominant manner. Most individuals diagnosed with this condition have an affected parent...

9. At the hearing, the Tribunal asked XCFB when she first started experiencing symptoms causing functional impacts. She said, in effect, that it was after the birth of her first child (in 2011)[37]; but her symptoms became worse after her second child in about 2017.[38] She said that she had fainted (and had never fainted before) and was sent to see a doctor at the Northern Hospital who referred her to Dr Hamer. She said "they" had said there was something wrong with her blood pressure. She said her stomach (symptoms) had started before this time, but that this was when it had become "bad".
10. XCFB gave evidence that her cardiologist and "gastro doctor" had referred her to a geneticist, who had diagnosed her with hEDS (namely, Dr Salaria. Dr Salaria had in fact provided a "likely" diagnosis of hEDS. XCFB said she has "a lot of body aches", "dislocations", "funny nodules all over my feet, on the bottom", which caused her pain.[39] XCFB said she started experiencing "really bad" low blood pressure and that she could not get out of bed. She also said she had fatigue, sweating "on and off", and "hot and cold" sweats.[40] XCFB said she had anxiety and that, as part of her "autonomic dysfunction", her adrenaline surges. She said she had the physical effects of those surges "non-stop". She explained that while she was giving evidence at the hearing, her hands were sweating, and her heart was beating. She said her stomach did not empty properly, and it was "very, very slow".[41]
11. The evidence in this application supports a finding by the Tribunal that XCFB has a disability caused by a number of impairment(s). Complexity arose in identifying precisely was type of impairments XCFB has. This complexity was explored during the examination of the medical expert witnesses and XCFB at the hearing, which the Tribunal will now examine below.
12. Professor Hebbard completed an "NDIS Access Request - Supporting Evidence Forms" in support of XCFB's request to access the NDIS on 12 September 2019 (SE Form).[42] On the SE Form, Professor Hebbard listed XCFB's "primary impairments (i.e., the impairment with the most impact of daily life)" as follows: "Gastroparesis with transgastric jejunal feeding, hypermobility Ehlers Danlos Syndrome, Dysautonomia with POTS Syndrome". On the SE Form, Professor Hebbard indicates that XCFB does not require assistance to be mobile, to communicate, for social interaction, learning, self-care, or self-management.[43]
13. On 23 September 2019, XCFB was examined by Dr Salaria, stating her opinion that XCFB was "likely" to have hEDS and recommending certain treatments which may help a patient with this condition.
14. About one month later, on 8 October 2019, Professor Hebbard completed a section of XCFB's Access Form (Medical Section).[44] On the Medical Section, Professor Hebbard listed XCFB's "primary disability and any secondary disabilities" as including: "Gastroparesis, hypermobility Ehlers Danlos Syndrome, orthostatic intolerance with vasovagal syncope, and Anxiety/Depression with Panic Attacks". He did not include POTS Syndrome in his list of disabilities. He changed his indication on the form as to whether XCFB required assistance with mobility. He maintained that she did not require assistance to communicate, with social interaction or learning. However, he also changed his indication that XCFB required assistance with self-care and self-management.
15. Professor Hebbard also completed a second SE Form on 8 October 2019 (Second SE Form) listing XCFB's "primary disabilities" as hEDS with orthostatic intolerance and gastroparesis, and that she has another impairment being "Anxiety/Depression".[45] Professor Hebbard states that the provision of "early intervention supports" of physiotherapy and pain management support will improve and prevent deterioration of her functional capacity, and strengthen the sustainability of available or existing supports.[46]
16. Dealing with the reference to "anxiety/depression with panic attacks", XCFB gave evidence at the hearing that she was first diagnosed with anxiety and depression when she was 16 or 15 years old, or "even younger actually", stating that "maybe" it was when she was in primary school, in Grade 6. She gave evidence that the diagnosis at that point was "anxiety", and that she would "just get the panic attacks".[47] When asked who she had seen for her anxiety, she said she did not know. Then, she said, "just my mum" and later, she said, "when we lived in [Suburb H], there was someone local in [Suburb H]" and she said her mum would take her. XCFB said she had been on "solid medication" for seven or eight years with no change. She said other medication she had tried had given her adverse side effects. She said she had received cognitive therapy and "psychology". She said she was taking Zoloft medication.
17. XCFB said she does not see a psychologist now, indicating she cannot afford to do so. She said the last time she saw a psychiatrist was after her general practitioner had sent her to a "community centre", which she said was about three years ago. She said, "he was just happy for me to stay on Zoloft, because I've had a lot of really bad side effects from other stuff".[4]
18. During this line of questioning at the hearing, XCFB did not mention the psychiatric assessment she underwent at The Royal Melbourne Hospital, conducted by A/P Holmes in April 2021. This assessment came to the Tribunal's attention while Professor Hebbard was questioned at the hearing about his understanding of XCFB's treatment, in respect of her seeing a psychiatrist, psychologist, or cognitive behavioural therapy. At the hearing, Professor Hebbard said that a psychiatric assessment had been conducted on XCFB a few months earlier.[48] A/P Holmes was at the hospital when he was giving this evidence by video. This meant he had immediate access to a clinical note that had been prepared by A/P Holmes in respect of this assessment of XCFB on 8 April 2021.
19. A/P's clinical note was produced to the Tribunal. A/P Holmes recorded as follows in this clinical note, as relevant to s 24(1)(a) of the NDIS Act (emphasis added):

Mental Health > > Diagnosed with anxiety after first [pregnancy] by Psychiatrist. Tx: Zoloft 100mg - reduced panic. > > Saw psychiatrist at bulk billed psychiatrist. > > ... > > FH: > > Brther SZ > > Mother anx and dep. > > ... > > MSE: > > (Telephone) > > Sounds matter of fact. > > Not anxious or depressed. > > Normal thought. > > Nil bizarre. > > ... > > Her history indicates long term distress, albeit experienced as secondary to the experience of physical symptoms and the frustration in there not being effective solutions. She was commenced on zoloft 9 years ago which she says reduced her 'panic" (sic) and I would suggest she remain on this at the same dose. I do not think any change in medication is likely to improve her state of mind. > > ... > > Over-all I think her functional prognosis is poor and the main issues are going to be the degree to which her subjective and well communicated distress drives further procedures vs the likelihood of long term benefit. > > Telemedicine on 8/4/2021

20. By the end of the first two days of the hearing, the Tribunal gained an impression that there was a significant psychological or psychiatric component to XCFB's medical presentation which had not been fully addressed by the medical evidence that XCFB had tendered in support of her application. No psychologist or psychiatrist was called by either party to give evidence at the hearing. The Tribunal indicated to the parties that it wanted to hear from A/P Holmes at a resumed hearing in relation to the opinions he had expressed in the clinical note referred to above.[49] Arrangements were made for him to attend the resumed hearing to give evidence.
21. A/P Holmes is well-credentialled. His qualifications include a Bachelor of Medicine, Bachelor of Surgery (MBBS), Master of Medicine (Psychiatry) (MMedPsych) and a Doctor of Philosophy (PhD). He said he was a member of The Royal Australian and New Zealand College of Psychiatrists (FRANZCP). At the resumed hearing, A/P Holmes said he is a "consultation liaison psychiatrist", and that he specialises in the interface between psychological and physical health. He said that "consultation liaison psychiatrists" mainly work within the "acute hospital system". He said that his university appointment was "honorary".[50]
22. When asked about the remarks he made in his clinical notes, including his reference to "Not anxious or depressed", A/P Holmes said that he was making a statement about XCFB's "communicated affect at the time", and his observation of her at the time of the assessment. He said it did not refer to how XCFB had been in the past.[51]
23. A/P Holmes elaborated that, during the 50-minute assessment, XCFB did not "communicate the affect" (either through words or non-verbal communication), of being overtly anxious or depressed. He said his reference to "matter of fact" in the clinical note, meant that during the assessment, XCFB recounted the history in a "not overly affect-laden distressed way" or "in a not anxious or not depressed way". He said that "It may be that at other times in her life she felt anxious or - but not - not when I spoke to her on the phone".[52]
24. A/P Holmes was asked whether he had formed an impression during the assessment with XCFB that she had struggled with anxiety since she was a child. As part of his answer, A/P Holmes said that (emphasis added):[53]

We tend to use the words 'anxiety' and 'depression' to describe specific phenomenon, anxiety more to do with feeling fearful, anxious, you know, worried, you know, and depressed associated with feelings to do with pessimistic, hopeless, and low mood. Now, I think people can feel psychological struggles which are very real, but whether or not they would be best described as persistent anxiety and depression since childhood rely - would rely to a certain degree on a clear history of that, which was not described, or sort of repeated assessments that describe this person as, you know, she is persistently anxious or she is persistently depressed.

25. A/P Holmes told the Tribunal that XCFB had been referred to him in respect of her "idiopathic" gastroparesis (that is, gastroparesis which had arisen spontaneously, or for which the cause was unknown). He explained the reason multidisciplinary input was sought for a patient, "before more invasive undertakings" (such as tube insertions), was that "from one perspective, the model is a primarily biological model, in other words, for some reason the stomach and intestines' motility is reduced, from other people's perspective, there's thinking that sort of psychological and social practice may play some part in the patient's symptom or help-seeking behaviour".[54] He said another reason was to exclude any underlying anorexia nervosa.
26. A/P Holmes said that gastroparesis was a "controversial diagnosis", in as much as it refers to "a range of symptoms" such as being unable to keep fluids down, regurgitating, vomiting, and feelings of fullness, which he said could be very similar to the symptoms described in patients with anorexia nervosa. He described further complexities being that:

(a) all patients who have had anorexia nervosa will have a degree of gastroparesis by virtue of the fact their stomach is not used, which he said will tend to reduce motility; and > > (b) some patients who are originally diagnosed with anorexia nervosa transition, "in a way", to a diagnosis of gastroparesis.

27. A/P Holmes said that one of the questions the hospital is keen for him to answer (generally), is to make sure that they are not treating people with anorexia nervosa, as having gastroparesis. In his clinical note relating to XCFB, he stated that her symptoms did not appear "voluntary" (which he later described as XCFB not purposely causing herself to vomit),[55] or "a part of a typical eating disorder", noting there was a long history of gastrointestinal "upset".[56] He later clarified his opinion that he did not think that XCFB had a "classic eating anorexia nervosa".[57]
28. When asked whether EDS might be an alternative explanation for XCFB's gastroparesis, A/P Holmes said, "there's no genetic test for EDS" and that it is "basically based on flexibility in the joints". He said that the original authors of the tests for EDS acknowledge that caution had to be taken in making this diagnosis in young women, because of their joint flexibility. A/P Holmes acknowledged that "you'll get different opinions about this" and he highlighted that "we're not talking about conditions which can be clarified by...in objective medical investigations".[58] He later referred to the gastric emptying test (which was abnormal in XCFB's case), but he explained that gastric emptying can be abnormal in eating disorders.[59]
29. A/P Holmes told the Tribunal that he could not recall asking XCFB during the assessment whether she had engaged in psychotherapy and counselling, but presumed that she was not, because "She's firmly sort of conceiving of her issues as occurring in the physical domain".
30. A/P Holmes expressed a view at the hearing about his assessment of XCFB and whether he thought the insertion of a feeding tube would have been beneficial (emphasis added):[60]

So I think that she has a biological vulnerability and sensitivity which has given her symptoms, but her capacity to tolerate those symptoms, you know, has been limited by her developmental experiences and that has - over time, she has come to express, you know, a lot of herself through physical symptoms with the process of somatisation in - in the realm of relationships around sort of biological models. So what's kind of notable is this, you know, even though she - at the moment she says, 'Yes, I've got anxiety and depression,' really, almost entirely the discourse is around physical symptoms and what - what the medical physical interventions are going to be, and this is sort of very typical, the sort of, 'I'm - I'm not really interested in seeing the psychiatrist or psychological work. I just want to - I want to know what's going to make me better, and if someone says they've got something to make me better, that's the person I'm going to work with on a physical point of view.'

31. A/P Holmes gave evidence that he considered that "on some level", XCFB was getting "some benefit" from being on the antidepressants, and that she should not stop taking them because, "invariably, people get withdrawal phenomenon".
32. A/P Holmes opined that XCFB has "very poor function", but that a lot of her function "is not due to symptoms related to her gastroparesis" and instead, were "sort of more chronic fatigue type syndromes". He gave the following evidence at the hearing about this:[61]

Again, this is this whole constellation of sort of physical symptoms which, from a biological perspective was supposed to be explained by some underlying mechanism, but, in fact, you know, most of her symptoms relate to fatigue, motivation, which has sort of got a chronic fatigue type dimension. So she is (indistinct) supposed to be referred with, you know, the - the classical kind of sort of trifecta of dysautonomia, Ehlers-Danlos, and gastroparesis, the main - the main syndrome is actually the chronic fatigue type syndrome, which is like a fourth but commonly associated kind of group of somatic symptoms in ...this group of patients.

33. When asked about the psychometric tests administered by Dr Ashkar, and whether he had a view about whether XCFB had consciously underperformed in those tests, A/P Holmes offered the following opinion:[62]

...I would say no, I think this is just how she - how she's going to learn to interact with the world in order to pursue what is essentially a need for kind of a covert dependency and to be looked after. This is the underlying formulation of these kind of syndromes. Now, the problem - I'm not going to say the problem, but the issue here is before the NDIS the limit was - well - well, not before NDIS, but before this kind of phenomenon, people said, well, the limit was the kind of resources that we have. We will provide them if they're useful. You know, that sort of - you apply interventions and, if they help, you continue them. If you don't help, they don't have - that's the world that used to exist. Now, in the world of function and need, essentially, you could argue that she has poor function, and she has the need and those should be provided for, but whether that actually improves her function or leads to increasing (indistinct) of reduced function, the formulation would suggest that it's possible that, you know, her independence won't improve, but she will - there will be a persistence of this kind of dependence.

34. A/P Holmes gave evidence that in his opinion, he considered that "psychological processes are playing a significant role in this ... - in [XCFB's] symptoms and her relationship with the healthcare system, but not just in the here and now. I think this has developed over a long period of time".[63]
35. In expressing a view about whether he assessed XCFB as having "anxiety and depression", he gave the following evidence (emphasis added):[64]

...anxiety and depression are just - are terms that are derived largely from, you know, clinical psychology. They're - they're kind of paradigms, but they're not - it's not, like, there are kind of anxiety and depression molecules or - or bacteria or parts of the brain. They're just descriptors, and sometimes those descriptors are relevant and useful, and sometimes they're less relevant and useful. Certainly, as much as she doesn't describe predominantly feeling anxious and depressed, she doesn't predominantly have symptoms of anxiety and depression. She predominantly has somatic physical symptoms, but, unfortunately, it's likely that a proportion of those physical symptoms are not easily explained by underlying medical, physical disorders.

36. The Tribunal found A/P Holmes to be a compelling and impartial witness. He demonstrated a learned, wholistic and sophisticated understanding of the complex array of different factors, biological and biopsychosocial, impacting upon XCFB in relation to her various reported symptoms. A/P Holmes said he did not form an impression that XCFB was presenting with anxiety and depression. However, he gave evidence about quite significant impacts arising from XCFB's mental state, and how she had experienced her ongoing gastrointestinal and other symptomatology, specifically, her low motivation and fatigue affecting her activity in the domains of mobility, self-care, and self-management.
37. A/P Holmes said he had access to XCFB's hospital records which included notes from the past 10 years and "letters and admissions". He was asked whether XCFB was experiencing psychological difficulties to which he gave the following opinion:[65]

...I think there's something wrong with her and that ... - what is wrong with her she experiences in terms of a whole range of physical symptoms and a difficulty in, you know, doing things and is looking for, you know, both a change in her state of experience, a fix for her physical symptoms, as well as support. ... I don't think her symptoms can be fully explained by simple biological mechanisms. I think there are notions of somatisation and sick role and dependency based on...which play a part in how I would understand her as a person. You must remember that, you know, most people with physical symptoms, even if they're very severe, it doesn't become the sort of central preoccupation of their life, you know? The - the degree to which her whole life is around symptoms and fatigue and vomiting and things is - is quite remarkable in itself.

38. The Tribunal accepts this evidence by A/P Holmes and considers that it demonstrates there is more at play in XCFB's medical situation, than the "simple biological mechanisms" (that is, the likely diagnosis of hEDS), affecting her bodily function.
39. At the conclusion of the resumed hearing, the Tribunal invited the parties to make an application, if they wished to do so, for the proceeding to take a different course (other than to conclude with the opportunity for the parties to make closing submissions). This was to provide XCFB, or the NDIA, an opportunity to be heard about the new evidence given by A/P Holmes at the resumed hearing. Ms Batten responded that she did not think that XCFB had capacity to call any other psychiatric evidence, noting she would need to take instructions about that. Otherwise, Ms Batten said there was no application to be made on the day of the resumed hearing. Ms O'Gorman told the Tribunal she did not have instructions from the NDIA to make any such application. The Tribunal requested that if any instructions were received (to make such an application), that the Tribunal be informed within 48 hours and that the application be made in writing. No such application was subsequently made by either party to the Tribunal.[66]
40. The Tribunal will now consider what, if any, underlying medical conditions XCFB currently has and what symptoms she experiences arising from those conditions.
41. The Tribunal finds that XCFB has a psychiatric condition, namely "somatic symptom disorder", based on the evidence given by A/P Holmes at the hearing, including:

(a) his evidence that XCFB is fixated on her health and her treaters, and more specifically, his observation that, "the degree to which her whole life is around symptoms and fatigue and vomiting and things is - is quite remarkable in itself" - see paragraph [64]; > > (b) his observation that XCFB's capacity to tolerate those symptoms has been limited by "her developmental experiences"; and that she has, over time, come to express a lot of herself through physical symptoms with the process of somatisation in the realm of relationships around biological models (see paragraph [57]); > > (c) his reference to her "somatisation and sick role and dependency" (see above at paragraph [64]); > > (d) his observation of XCFB that she "predominantly has somatic physical symptoms, but, unfortunately, it's likely that a proportion of those physical symptoms are not easily explained by underlying medical, physical disorders" (see paragraph [62]); > > (e) his observation that she is "going to learn to interact with the world in order to pursue what is essentially a need for kind of a covert dependency and to be looked after" (see paragraph [60]); and > > (f) his indication that if he "had to be drawn on a psychiatric diagnosis, somatic symptom disorder would be a diagnosis that [he] would choose reluctantly on top of", or concurrently with, her physical condition.[67]

42. There was inconsistent evidence before the Tribunal as to whether XCFB was currently suffering from the further psychiatric condition of "anxiety and depression". On the one hand, the Tribunal notes A/P Holmes's observations (and will come back to them when assessing the criterion under s 24(1)(b) of the NDIS Act), that he did not form an impression that XCFB had "anxiety and depression" when he assessed her. At the hearing, he acknowledged that this may have been the case in the past (that is, that she had anxiety and depression). However, the Tribunal notes that XCFB's other treating medical practitioners, who have been involved with treated XCFB over a lengthy period, have noted that they consider that XCFB had anxiety and depression. The NDIA also accepts that XCFB has this condition and that it is permanent.
43. On the Access Form, Professor Hebbard stated that anxiety and depression is one of XCFB's "primary impairments". The Tribunal found Professor Hebbard to be an impressive witness at the hearing; and considers it appropriate to place weight on his evidence regarding XCFB's various medical issues, particularly in relation to her gastrointestinal problems. The Tribunal has regard to Professor Hebbard's area of speciality and but also his impression as to XCFB's state of mental health, given the longevity of their treating relationship which dates back to 2015. Importantly also, the Tribunal cannot ignore the following matters:

(a) XCFB has been taking Zoloft for about a decade as a form of treatment for her mental health (and the continuation of such treatment was endorsed by A/P Holmes - see paragraph [58] above); > > (b) many years ago, XCFB was seen by a psychologist and psychiatrist for anxiety-related symptoms; and > > (c) at the hearing, XCFB also referred to having been admitted "for psychiatric care" previously, albeit in the context of post-natal depression.

44. The Tribunal considers that the evidence, on balance, supports a finding, which the Tribunal now makes, that XCFB has a psychiatric condition of "anxiety and depression".
45. In XCFB's Closing Submission, Ms Batten contends that XCFB has been diagnosed with hEDS, relying upon the medical report issued by Dr Salaria as referred to in paragraph [35] above.[68] The Tribunal finds that it is likely that XCFB has hEDS, but notes that according to A/P Holmes' evidence there is no objective test that can be done to confirm a diagnosis of hEDS. The Tribunal notes that Dr Salaria qualified her diagnosis of XCFB as having hEDS as being "likely", reflecting that she could not state categorically that XCFB has hEDS.
46. Importantly, the Tribunal finds that XCFB experiences gastrointestinal problems including gastroparesis (slow emptying of the stomach, for which she uses a tube to vent the contents of her stomach as required) and irritable bowel syndrome (which may result in changes to her bowel habit). A gastric emptying study was performed on XCFB by Dr Graeme Hall on 20 August 2015, where it was shown that XCFB's gastric retention after four hours was 38% (compared to the normal range of 0% to 10% after four hours), which the doctor concluded was consistent with gastroparesis.[69] A further gastric emptying study was performed on 8 February 2021 by Dr Ken Lee, showing a less favourable result being that she had retained 87% after 3 hours when the normal range is less than 30%. Dr Lee concluded that XCFB had severely reduced solid phase gastric emptying consistent with "severe gastroparesis".[70]
47. In XCFB's Closing Submission, Ms Batten submits that XCFB was diagnosed with cardiac arrythmia and that for XCFB, a "clinical feature" of her hEDS included (among other things) "orthostatic hypotension/intolerance causing syncope".
48. XCFB's legal representatives arranged for XCFB's treating Cardiologist and Electrophysiologist, Dr Hamer, to prepare a detailed medical report on 26 May 2021. Dr Hamer states in this report that he has treated XCFB since July 2018.[71] He is well-credentialed and has practised as a Cardiologist and Electrophysiologist since 1983. He states that he has a particular area of interest in the investigation and management of cardiac syncope; and in recent years, he had exclusively assessed patients with orthostatic blood pressure intolerance.
49. Dr Hamer states in this report that when he first saw XCFB in July 2018 to conduct the tilt table test, she had reported dizziness (light-headedness) since early 2018 and had experienced two blackouts (syncopal episodes). Dr Hamer refers to XCFB having reported sweating, visual blurring, palpitations, going pale and post event fatigue associated with her dizziness. He states her symptoms had improved "a little" by taking Fludrocortisone, being a hormone that helps the body retain salt and fluid to support blood pressure.[72]
50. Dr Hamer reported the results of the tilt test in a report dated 26 July 2018, as follows (emphasis added):[73]

During initial tilting her blood pressure was at the lower level of normal and showed no abnormal changes with posture. However tilting with isoprenaline, a stress hormone, produced a loss of control of blood pressure due to vasodilatation allowing the blood to fall from the head to the feet associated with a marked reflex increase in her heart rate. This accurately reproduced her dizziness and near syncopal symptoms. The conclusion from the tilt test was the XCFB's symptoms were from intermittent low blood pressure due to orthostatic blood pressure intolerance, which was technically classed as neurocardiogenic syncope and pre-syncope with a vasodepressor mechanism. The tilt table test did not suggest a vasovagal mechanism, nor everyday features of postural orthostatic tachycardia syndrome (POTS), which can be other variations of orthostatic [b]lood pressure intolerance.

51. Based on this evidence as set out in paragraphs [75] to [77] above, the Tribunal finds that XCFB has the medical condition of "orthostatic blood pressure intolerance", which may intermittently cause low blood pressure and result in XCFB experiencing dizziness and near-syncope.
52. Dr Hamer also states in his report that it became apparent in February 2019 that XCFB had "benign cardiac arrythmia", which could cause palpitations. Dr Hamer states that an ECG performed on XCFB on 6 February 2019 had ruled out any structural heart disease. Dr Hamer opined that XCFB's ongoing symptoms "are considered to be causing a relatively minor degree of disability in the context of her other health issues".[74]
53. In his report, Dr Hamer also referred to the condition of orthostatic blood pressure intolerance as "clustering", with other health issues including joint hypermobility "with its consequences (arthralgia, fibromyalgia)", migraine headaches, upper and lower gastrointestinal issues and either primary or reactive mental health issues, such as anxiety and depression, which he stated was common. Dr Hamer stated that these illnesses can contribute to "chronic physical fatigue" and mental "fogging". He stated that frequent drops in blood pressure are "a potent promoter and aggravator of these issues".[75]
54. In summary, and based on the evidence set about above, the Tribunal finds as follows:

(a) XCFB is likely to have hEDS; > > (b) XCFB has the following underlying medical conditions: orthostatic blood pressure intolerance and benign cardiac arrythmia; and > > (c) XCFB also has two psychiatric medical conditions being somatic symptom disorder and anxiety and depression.

55. The Tribunal is satisfied that based on the evidence about the fluctuating symptoms XCFB has experienced arising from the above underlying medical conditions, she has a disability that is attributable to the following impairments:

(a) impairment attributable to psychiatric conditions - arising from her conditions of "somatic symptom disorder" and "anxiety and depression"; > > (b) cognitive impairment - resulting from symptoms impacting her concentration and memory such as chronic fatigue, pain, anxiety, and depression; and > > (a) physical impairments - resulting from the loss of: > > > (i) her musculoskeletal function due to hypermobility, which can cause pain and instability of her joints; > > > > (ii) digestive function, by the slow movement of food through her stomach (gastroparesis) and variable changes in her bowel habit (IBS); > > > > (iii) autonomic function, resulting from orthostatic blood pressure intolerance which may impact her ability to remain upright; > > > > (iv) cardiac function, by her experience of heart palpitations caused by her benign cardiac arrythmia (albeit, reportedly, having a minor impact on her); and > > > > (v) her physical stamina and endurance, due to her experience of chronic fatigue and chronic pain especially following an episode of autonomic dysfunction such as orthostatic blood pressure intolerance.

56. For these reasons, the Tribunal is satisfied that XCFB has met the mandatory criterion under s 24(1)(a) of the NDIS Act.

1. The second mandatory criterion, under s 24(1)(b) of the NDIS Act, requires a person seeking access to the NDIS to have one or more impairments that "are, or are likely to be, permanent". The word "permanent" is not defined in the NDIS Act.
2. Rule 5.4 of the Access Rules provides that an impairment is considered permanent, or likely to be permanent, "only if there are no known, available and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment".
3. Rule 5.5 provides that:

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.

4. Rule 5.6 provides that 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". This rule also provides that:[76]

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. Rule 5.7 provides that 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".
6. The Federal Court of Australia decision in NDIA v Davis stands as legal authority for how the Tribunal should approach the task of assessing whether any or all of XCFB's impairments are, or likely to be, "permanent" and therefore, whether the criterion under s 24(1)(b) of the NDIS Act is met by XCFB. Her Honour Justice Mortimer held as follows (emphasis added):

...

[77] The Agency contended that the word "permanent" in s 24(1)(b) meant "irreversible", or "untreatable". In other words, the Tribunal, exercising the power in s 21 afresh on merits review, had to be satisfied that an impairment was, or was likely to be, irreversible before that provision was satisfied. The Agency submitted that the intention of the legislative scheme is that "obesity, as a reversible condition, was not permanent".

[78] The Agency relied upon a dictionary definition from the Macquarie Dictionary:

adjective 1. lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding.

(Original emphasis.)

[79] It is notable that this definition does not include the term "irreversible".

[80] There are two difficulties with the Agency's submissions, only one of which goes to the correct construction of "permanent" in s 24(1)(b). The second difficulty, flowing from the correct construction of the term, concerns what the adjective attaches to in Ms D's circumstances. In short, it does not attach to her morbid obesity. It attaches to the loss of or damage to her musculoskeletal, movement-related, and sensory functions identified by the Tribunal as impairments. As the Agency submitted, it was those impairments which were the qualifying impairments, as explained at [167] of the Tribunal's reasons. The issue about which the Tribunal needed relevantly to be satisfied was whether those impairments were "permanent". I deal with that below at [126]-[147].

[81] Returning to the construction question, I consider the Agency's proposed construction to be unduly narrow. On the other hand, the respondent's contention - namely that the correct meaning is "long-term" - also does not reflect the correct meaning, in the text and context, and taking into account the purpose of the access requirements.

[82] As I noted in Mulligan, the threshold access requirements are designed to impose some restrictions on who can access the funding for supports available under the NDIS. The objectives of the legislation in s 3, and the guiding principles in s 4, make it clear the scheme is focused on assisting people with disabilities to live their lives with dignity, with as much autonomy as possible, and with the ability to enjoy access to community and social engagement commensurate with people who do not live with disabilities. In other words, the scheme's objectives and purposes concern lifelong experiences. As some textual indications make clear (s 24(2) being a particularly relevant one), the scheme recognises that what prevents or hinders an individual from full participation in the community, and the fullest enjoyment of their life that is possible, might fluctuate over their lives, and over parts of their lives. Impairments may not be stable. They may not always have the same effects. But they endure, and the legislative scheme recognises that people who must live with them - provided the remainder of the threshold criteria are met - should receive support throughout their lives, at the level they reasonably require.

[83] The guiding principles in s 4 make it abundantly clear that the scheme is directed at lifelong support, and lifelong benefits, in order to promote substantive equality between people with and without disabilities.

[84] The concept of "irreversible" is unhelpful, and a distraction from the context and purpose of the legislation. It prompts the question - 'reversible by what?' That is, how far does an NDIS applicant need to go to attempt to 'reverse' their impairment? And what does 'reversible' mean? Is it a question of degree? Fifty percent reversible? Thirty percent reversible? Does irreversible mean 'cannot be improved'? Of course, many impairments covered by the NDIS - such as psychiatric impairments - can be 'improved' (in terms of the way an individual experiences the impairment) by therapy and medication. Are they 'reversed' if the medication is very successful? Obviously, the answer is they are not. The impairment remains, but the symptoms or manifestations may be controlled or somewhat ameliorated.

[85] The constructional choices must take into account the purpose of the threshold provisions in the context of this legislation, which addresses the lifelong needs of people living with disability, in terms of practical support and assistance to fulfil the rights and interests set out in s 4 of the Act, and also in the Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008). 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.

1. Neither party made submissions about her Honour Justice Mortimer's observation in NDIA v Davis that the correct meaning of "permanent" is "enduring" and the Tribunal is bound to apply this interpretation and considers it to be correct. XCFB contends that her hypermobility EDS, orthostatic hypotension (causing syncope), dysautonomia with POTS, cardiac arrythmia, gastroparesis, and anxiety and depression, are (or likely to be) permanent.[77] This position was confirmed by Ms O'Gorman at the commencement of the hearing. It is apparent from the way XCFB has stated her case that her representatives consider "impairments" as referred to within s 24(1)(b) of the NDIS Act to mean a reference to specific medical conditions. Specific medical conditions may give rise to an impairment, but they are not the same as an "impairment" within the meaning of s 24(1)(b).[78] The Tribunal will treat XCFB and her representatives as contending, instead, that XCFB has unspecified impairment(s) arising from her medical conditions referred to in the first sentence of this paragraph. The NDIA accepts, in effect and by applying the same approach, that XCFB has unspecified impairment(s) arising from the medical conditions of hEDS and "chronic hypertension" (but not any of the other conditions), which are, or likely to be, "permanent" and to meet the requirements under s 24(1)(b) of the NDIS Act.[79] The Tribunal notes that Dr Hamer had, in effect, ruled out that XCFB suffers from POTS (see paragraph [77] above).

Permanency of impairments attributable to XCFB's psychiatric conditions

1. The Tribunal has found that XCFB has a disability that is attributable (among other impairments) to impairments attributable to psychiatric conditions, specifically, "somatic symptom disorder" and "anxiety and depression".
2. By operation of Rule 5.4, the Tribunal is required to make an assessment as to whether there are any "known, available and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment". If the answer is that there are no such treatments, then Rule 5.4 will not exclude these impairments from being considered as permanent, or likely to be so.
3. As mentioned above, XCFB has been taking daily anti-depressant medication, Zoloft, for many years now. The Tribunal accepts her evidence that she has trialled other medications but has ceased them due to adverse side effects. XCFB has been able to tolerate Zoloft, and so it is intended she will remain on this medication. A/P Holmes considered that it was medically appropriate that she continue to do so. He also remarked "I do not think any change in medication is likely to improve her state of mind".[80]
4. At the hearing, XCFB was asked whether she was currently seeing a psychologist. She said she was not and said, "I don't have the money to".[81] XCFB was asked when she had last received cognitive behavioural therapy and she said "about four years ago".[82] When asked why she had not received that type of treatment since, she said it was because she would need to pay them $180 per session and that "when you're on a disability pension, you can't pay that much, even on the plan, because you still only get back $60".[83]
5. The Tribunal asked XCFB about the evidence that she had started experiencing "anxiety and depression" when she was in Grade 6. XCFB gave the following further evidence:[84]

Yes, anxiety, depression, a lot of things started then I would get stomach aches and a lot of the anxiety, depression, not wanting to go to school, a lot of bad stomach problems, seeing doctors for my stomach, a lot of in and out of doctors all the time, growing pains in my legs at night just there was a lot of things. My parents had divorced.

6. XCFB said she did not think her anxiety and depression would ever get better. She said she did not think she could see a day where she did not take medication, and when she had ceased it in the past, she said "it was not good". When asked whether her doctors had said anything to XCFB about whether her anxiety and depression would get better, she said that they had told her it could be lifelong, "because it ran in the family".
7. The Tribunal notes the reported history of mental illness in XCFB's immediate family. XCFB told the Tribunal that her mother had "been on medication for 30 years". She referred to her mother taking Prozac and that she had seen her mother "in and out of hospital with depression and anxiety". XCFB said that her brother was a "paranoid schizophrenic" and had "just got out of the Melbourne Hospital", following an involuntary admission.[85]
8. When asked by the Tribunal if XCFB could remember the name of the psychiatrist she had seen, XCFB said she had seen psychiatrists "all through my life" and then she disclosed, "I've had a hospital admission to Northern Private as well". The Tribunal sought further details of this admission. XCFB said it was her only admission and that she was in there after her first son was born in 2011. She said she ended up "getting bad post-natal [depression]" and was in hospital for three weeks. She said she got "really unwell mentally", and a few weeks after she had given birth.[86] XCFB said a psychiatrist from North Park Private was managing her situation (she said he ran the Unit there). She said she could not recall his name but that he was the Director and was of Indian descent. XCFB said she saw him every second day during this admission, and then twice or three times for follow up. She said she was then referred back to her General Practitioner.[87]
9. XCFB gave evidence that about three years ago she had tried to change her medication and that she had seen another psychiatrist at the North Park Community Centre (where the hospital was). She said they had psychiatrists who had bulk billed. She said she saw this psychiatrist two or three times. She said her anxiety "wasn't good". She said they agreed it was better for XCFB to go back onto Zoloft. She said this person was "definitely a psychiatrist", and he had prescribed her medication.
10. XCFB said that in about 2017 she had started getting "unwell again" with her anxiety and depression, and she had six sessions with a lady "where her GP is". XCFB confirmed that these visits were under a Mental Health Plan, but she said she was only reimbursed $65. She claimed that this was available with a psychiatrist, but not with a psychologist. The Tribunal asked XCFB if there was a reason she had not sought further assistance under a Mental Health Plan under the Medicare bulk billing system. XCFB response was:[88]

I didn't know you could, I never was aware that psychologists would bulk bill, I knew - I asked my GP and they said they bulk bill for the psychiatrist at the North Park Community but they never said to me and my GP knows that, she even charged me when I was seeing the lady at - she didn't bulk bill me for the lady I was seeing at her clinic either, I paid for those visits.

11. XCFB said that her anxiety and depression was still a concerning issue for her but that she did not continue with counselling because she did not want to, explaining that she could not afford to pay the money.[89]
12. The Tribunal asked XCFB what the impacts of her anxiety and depression were, or whether it was being managed by the Zoloft medication. XCFB said it was managed to a degree where she "probably" does not end up in hospital. She said what she had was "really bad, bad" and when she tried to stop the medication in 2017, that it was a "dangerous situation" for her.[90] She said it got her though "that", but that she still had depression. XCFB explained:

I am always depressed, I am not happy because my life isn't happy, my body is not happy, my health - and I always have anxiety all the time because my body doesn't work properly when my heart rates goes up and I am sweating and that is - an adrenalin rush has happened, I don't know if I am going to die, I don't know what's going on, I have anxiety all the time, I have anxiety my health is going to get worse, I am going to get - I have - I always have anxiety. Always.

13. Based on the evidence above, the Tribunal is not satisfied that in respect of XCFB's two psychiatric conditions that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment caused by those conditions. The first condition of "somatic symptom disorder" is not a condition that has been directly addressed with XCFB to date. A/P Holmes expressed his opinion, when pressed to do so while he was in the witness box at the hearing, that XCFB has this condition. There was no evidence before the Tribunal indicating that A/P Holmes' views (as expressed at the hearing) were communicated, either directly or through Professor Hebbard or otherwise to XCFB; nor evidence of any discussion between those treating her as to whether there is treatment, such as psychotherapy, that she might receive to remedy this condition.
14. At the hearing, A/P Holmes cast doubt on whether intensive psychotherapy would make any difference. He stated as follows (emphasis added):[91]

So there's a substitution - a focus on a physical problem and a physical fix. Now, that, in fact, makes it very difficult to do meaningful psychological work, and so I think it is very difficult to do meaningful psychological work in people like this, and I've been asked this question. You know, well, you say it has got a psychological component. What have you got to offer? And I say really nothing. I don't think you can do intensive psychotherapy that's going to make a difference. Well, they say, well, that's not very useful. We may as well just do what we do. And I'm saying, well, you can do what you do, but you've got to remember that everything you do can either make things better, it can make no difference, or it can actually make things worse. So, in a way, I see my role as at least having some discussion about whether things could actually make things worse overall.

15. The Tribunal does not accept that XCFB could not afford to have engaged in further counselling, psychotherapy, or cognitive behavioural therapy with a psychologist. These services are available to all Australians, such as XCFB, if she is placed onto a Mental Health Plan by her GP. Upon doing so, at least 10 sessions would be funded under the Federal Government's Medicare program (or more if she meets the requirements to extend her Plan); and XCFB could have, if she had applied herself, sought out a psychologist who is willing to bulk bill for their services under Medicare.
16. Even so, the Tribunal acknowledges the doubt that was cast by A/P Holmes in terms of the likelihood of psychotherapy making any difference to XCFB, given he says she is fixated on a "physical problem and a physical fix". For this reason, and because XCFB's psychiatric conditions have impacted upon her for such a significant period of time, the Tribunal considers that, on balance, the treatment of psychotherapy is not likely to remedy her impairments attributed to by her psychiatric conditions. The Tribunal considers that XCFB appears to have exhausted the options in terms of the use of psychotropic medication to assist her with her mental health and has settled on the use of Zoloft daily which A/P Holmes considers is medically appropriate. Professor Hebbard reports on 11 November 2019, that XCFB has "trialled psychological therapies including counselling, CBT and hypnotherapy".
17. For these reasons, the Tribunal is satisfied that Rule 5.4 does not apply in relation to these impairments. A/P Holmes gave evidence that her prognosis was poor. A report from XCFB's general practitioner, Dr Tan, states that she has suffered from anxiety and depression for "a long time".[92] The Tribunal accepts that XCFB has suffered from anxiety and depression since she was a teenager and also finds on balance that she has suffered from somatic symptom disorder, affecting how she responded to and perceived her reported physical symptoms after the birth of her first child. On this basis, the Tribunal considers that XCFB's impairments attributable to her psychiatric conditions are enduring, and therefore, they are, or likely to be, permanent within the meaning of s 24(1)(b) of the NDIS Act.
18. The Tribunal is satisfied this criterion is met in respect of XCFB's disability that is attributable to her two psychiatric conditions of somatic symptom disorder and anxiety and depression.

1. The Tribunal considers that XCFB's cognitive impairment arises from symptoms such as chronic fatigue, pain, anxiety, and depression which impact her concentration and memory. The Tribunal considers that those symptoms of chronic fatigue, pain, anxiety, and depression stem primarily from her psychiatric conditions of somatic symptom disorder and anxiety and depression. On this basis, the Tribunal is satisfied that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy this impairment, for the same reasons as the Tribunal considers there are no such treatments that would be like to remedy her somatic symptom disorder, anxiety and depression as outlined in the above section of these Reasons for Decision. The evidence indicates that XCFB's symptoms in this regard fluctuate in severity. In that regard, Rule 5.5 provides that the impairment may still be permanent notwithstanding that the severity of the impact of this impairment on XCFB's functional capacity may fluctuate.
2. The Tribunal considers that XCFB's cognitive impairment is enduring (as the symptoms arising from her psychiatric conditions are enduring), and therefore, they are, or likely to be, permanent within the meaning of s 24(1)(b) of the NDIS Act.
3. The Tribunal is satisfied this criterion is met in respect of XCFB's disability that is attributable to her cognitive impairment.

1. XCFB contends that even though the severity of her symptoms varies from time to time, that each of her impairments are permanent.[93] XCFB contends that her medical conditions of hEDS, "orthostatic hypertension" (being another name for her orthostatic blood pressure intolerance), and "dysautonomia" are lifelong and her deficiencies in or loss of connective tissue function will not improve with time. XCFB contends there are no specific treatments available. XCFB based those submissions on Professor Hebbard's opinions as expressed in the forms he completed at the time XCFB made her access request to the NDIS,[94] and in his report dated 1 July 2021 (2021 Report).[95]
2. The Tribunal notes that Professor Hebbard makes the following broad statements in his 2021 Report. He states that the exact cause of hEDS is "unclear"; and that with this condition there are demonstrable changes in tissue with joint hypermobility being the defining feature, with a range of other clinical features that are "variably present" such as musculoskeletal, gastrointestinal and orthostatic symptoms and anxiety/depression.[96] Professor Hebbard states in this 2021 Report that XCFB has an "unstable" gut, which he states is "likely due to autonomic dysregulation with intermittent but often prolonged periods of diarrhoea which respond variably to treatment, but are sensitive to her nutritional intake".[97] Professor Hebbard makes the following general statement about hEDS:

As the condition has many manifestations, and the level of symptoms varies from time to time, the effects on daily functioning can be significant. For example if blood pressure falls when one stands up such that one is unable to remain upright for significant periods of time, or might faint if upright that would have significant effects on mobility and ability to perform simple activities of daily living. Similarly fatigue can be a highly debilitating symptom. > > XCFB suffers from gastroparesis which significantly limits her ability to eat, as ingestion of food causes nausea, discomfort and vomiting. This is partially ameliorated by the nutritional supplementation that she receives, but even with that she reports significant periods where diarrhoea is troublesome (likely due to autonomic dysfunction). As you can imagine the combination of difficulty getting up and the need to go to the toilet frequently and urgently is not a good combination of symptoms.

3. The Tribunal has found that XCFB has physical impairments resulting from the loss of her musculoskeletal function, digestive function, autonomic function, cardiac function, and her physical stamina and endurance.
4. First, the Tribunal will address XCFB's physical impairment resulting from the loss of her musculoskeletal function due to hypermobility, which can cause pain and instability in her joints (arising from her likely condition of hEDS).
5. The Tribunal notes that in Dr Salaria's report dated 23 September 2019, she recommended the following treatment for persons with hEDS (emphasis added):[98]

Physiotherapy tailored to the individual; assistive devices like braces, pain medication tailored to symptoms are useful in individuals with hypermobility. Low-resistance exercises to increase both core and extremity muscle tone for improved joint stability are recommended in patients with hypermobility. Joint hyperextension; resistance/isometric exercise can exacerbate joint instability and pain; high-impact activity increases the risk of acute subluxation/dislocation, chronic pain, and osteoarthritis. People with hypermobility are at increased risk of osteoporosis. Calcium, vitamin D, low-impact weight-bearing exercises to maximize bone density are useful in individuals with hypermobility. Supplementation with up to 500mg daily of Vitamin C may improve some of the manifestations of this condition. XCFB would benefit from an assessment and then ongoing physiotherapy by an experienced physiotherapist. I suggest she continues to have a follow-up with you, gastroenterologist and her cardiologist.

6. In Professor Hebbard's report dated 11 November 2019, he states that XCFB had seen "physiotherapists and pain management" in respect of her EDS.[99] The NDIA accepts that XCFB's impairment attributable to EDS is permanent.[100] Based on those matters, the Tribunal finds that this impairment is, or likely to be, permanent.
7. Second, the Tribunal will address XCFB's physical impairment resulting from the loss of digestive function, by the slow movement of food through her stomach (gastroparesis), and variable changes in her bowel habit (and at times causing her to experience diarrhoea).
8. Before the hearing the NDIA stated in its SFIC that it did not accept XCFB's impairment of gastroparesis was permanent.[101] However, after the hearing, the NDIA contends in its Closing Submissions that it accepts that this "impairment" (of gastroparesis) is permanent.[102]
9. The Tribunal notes that Professor Hebbard reports, in his letter dated 11 November 2019, that XCFB has undergone an endoscopic pyloromyotomy and the placement of a transgastric jejunal feeding tube and has "trialled":

(a) prokinetic and antiemetic medications, diet, and Botox Injection to her pylorus; and > > (b) numerous feeds before settling on one most compatible with her GI tract.[103]

10. Professor Hebbard states in the First and Second SE Forms that XCFB's condition of gastroparesis was likely to be lifelong.[104] He explains in his 2021 Report that the digestive issues are a clinical feature of hEDS due to connective tissue weakness compared to "normal" individuals. Professor Hebbard states in his 2021 Report that "these deficiencies will not improve with time, and hence this (that, hEDS) is a lifelong condition, although the severity of symptoms will vary from time to time (and for reasons that are often not clear)".[105]
11. Based on these matters, the Tribunal is satisfied that XCFB's impairment arising from her loss of digestive function is, or likely to be, permanent.
12. Third, the Tribunal will address XCFB's physical impairment resulting from autonomic function, resulting from orthostatic blood pressure intolerance which may impact her ability to remain upright.
13. Before the hearing, the NDIA stated in its SFIC that there was insufficient evidence to establish that XCFB's impairment of dysautonomia with POTS is permanent.[106] However, after the hearing, the NDIA contended in its Closing Submissions that it accepts that this "impairment" is permanent.[107]
14. Dr Hamer stated in his report dated 26 May 2021 that XCFB had orthostatic blood pressure intolerance which he states "is incurable" and that patients with this condition have "no prospect of being completely free of symptoms throughout their life, although the severity of their symptoms can vary according to their life circumstances and the variable impact of treatment".[108] He opined there was no other medication that was going to substantially improve XCFB's current situation into the foreseeable future. He ruled out the option of frequent intravenous saline infusions for the medical reasons as set out in his report and because the prospect of it significantly improving her disability was "very low".[109]
15. Based on these matters, the Tribunal is satisfied that XCFB's impairment arising from her loss of autonomic function is, or likely to be, permanent. For the sake of clarity, the Tribunal does not accept that XCFB suffers from POTS based on Dr Hamer's evidence - see paragraph [77] above.
16. Fourth, the Tribunal will address XCFB's physical impairment resulting from her loss of cardiac function, by her experience of heart palpitations caused by her benign cardiac arrythmia.
17. XCFB relies upon the letter of Dr Hamer dated 11 October 2019, in which he states that XCFB's issues in relation to her cardiac arrythmia are not likely to significantly improve, although XCFB was being actively treated (as at the time of this report).[110] Dr Hamer states in his subsequent report on 26 May 2021, that XCFB was treated with anti-arrhythmic drugs and underwent catheter ablation treatment, but with "only partial success".[111]
18. At the hearing, XCFB gave evidence that two weeks before the first day of the hearing, she underwent an ablation through her groin to treat her cardiac arrythmia. She indicated she was booked in for another one because the ablation she had was unsuccessful, (that is, it was not fully ablated or it had moved to another spot), and she said her arrythmias were the same on her echocardiograms (ECGs). She explained that she was on medication for this condition, but she said the medication was not controlling it. XCFB said the medications were giving her a lot of side-effects (namely, drowsiness, dry mouth and sometimes insomnia) and it was "really bad".
19. Before the hearing, the NDIA stated in its SFIC that there was insufficient evidence to establish that XCFB's impairment of cardiac arrythmia is permanent.[112] However, after the hearing, the NDIA contended in its Closing Submissions that it accepts that this "impairment" is permanent.[113]
20. Based on these matters, the Tribunal is satisfied that XCFB's impairment arising from her loss of cardiac function is, or likely to be, permanent.
21. Fifth, the Tribunal is satisfied that based on the evidence of Dr Hamer and Professor Hebbard outlined above, XCFB's physical impairment resulting from her loss of physical stamina and endurance, due to her experience of chronic fatigue and chronic pain, especially following an episode of autonomic dysfunction such as orthostatic blood pressure intolerance (but impacted upon by her other underlying medical conditions referred to in these Reasons for Decision), is, or likely to be, permanent.

1. In conclusion, the Tribunal finds that XCFB's physical impairments resulting from the loss of her musculoskeletal function, digestive function, autonomic function, cardiac function, and her physical stamina and endurance are, or likely to be, permanent and that XCFB meets the criterion under s 24(1)(b) in relation to those impairments.

Section 24(1)(c) - Substantially reduced functional capacity

1. The Tribunal has found that XCFB's physical and cognitive impairments and her impairments arising from her psychiatric conditions (which the Tribunal will refer to collectively as XCFB's Permanent Impairments), are, or likely to be, permanent and therefore, she satisfies s 24(1)(b) of the NDIS Act. The next step is for the Tribunal to consider whether one or more of those Permanent Impairments have resulted in a substantially reduced functional capacity of XCFB to undertake one or more of the activities prescribed in s 24(1)(c) of the NDIS Act, being communication, social interaction, learning, mobility, self-care, and self-management (Prescribed Activities). The Access Guidelines provide as follows:

If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.[114]

1. As observed by her Honour Justice Mortimer in Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201 (Mulligan), at [55] and [56], this assessment calls for an examination of evidence given by the person seeking access to the NDIS, as well as medical and clinical evidence. The focus is a practical examination of what the person can and cannot do. Her Honour Justice Mortimer in Mulligan described the assessment as "avowedly functional, and multi-faceted" and that "...No decision-maker need be satisfied a person's impairment is "serious", or more serious than another person's. No qualitative judgments in that sense are called for".[115]
2. Rule 5.8 of the Access Rules elaborates upon when an impairment is taken to have resulted in a "substantially reduced functional capacity" to undertake any one or more of the Prescribed Activities. This rule provides as follows:

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.

[Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.]

1. Rule 5.8 is reflected in the following section of the Access Guidelines (footnotes omitted):[116]

...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.

To help us decide if you're eligible, we need to know your capacity and where you need more help...[117]

1. As cautioned by her Honour Justice Mortimer in Mulligan, the Tribunal should not confine its consideration of whether a person has met the disability requirement under s 24(1)(c), by considering their circumstances only through the prism of Rule 5.8 of the Access Rules.[118] Instead, Her Honour made clear that the statutory task remained to consider whether a person's functional capacity is substantially reduced in any of the six Prescribed Activities.
2. At the commencement of the hearing, Ms O'Gorman, on behalf of the NDIA, submitted that she considered the question about whether XCFB satisfied this particular criterion was the "key issue" in this proceeding. Ms O'Gorman submitted, on behalf of the NDIA, that because XCFB did not "make a full effort" to engage with the independent occupational therapist, Ms James, and neuropsychologist, Dr Ashkar, when they examined her, and accordingly, there is not a sufficiently reliable evidential basis upon which the Tribunal could be satisfied that XCFB has substantially reduced functional capacities in any of the areas identified in s 24(1)(c) of the NDIS Act.[119] The Tribunal will return to this issue below.
3. The Tribunal has mentioned above at paragraphs [39] to [42] that Professor Hebbard seems to have changed his opinion about which of the prescribed activities he considers that XCFB requires assistance between preparing the First and Second SE Forms in September 2019 and October 2019 respectively. The Tribunal is not limited to considering only those activities as identified by XCFB's treating doctors. In XCFB's Reply Closing Submission, she contends that the Tribunal should be satisfied, on the evidence before it, that she has substantially reduced functional capacity in the activities of:

(a) self-care;

(b) mobility; and

(c) social interaction.

1. The first Prescribed Activity of "Self-care" is not defined in the NDIS Act or the Access Rules. The Access Guidelines provide that "Self-care" means "personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet".[120] The Tribunal regards the activity of "self-care" in these circumstances to also encompass not only the care of XCFB but also the care of her children.
2. In XCFB's Statement of Lived Experience signed by her 15 July 2021, she described the functional impacts of her Permanent Impairments in regard to her self-care, are as follows:[121]

(a) XCFB says she had difficulty with food consumption because she needs to use a PEG feeding tube to properly ingest food normally, "otherwise I vomit". She said she uses the tube every day and that it enables her to absorb nutrients in her bowel. XCFB says she uses a pre-made feeding tube formula with the tube which contains calories and vitamins. XCFB says she is able to consume very small portions of food without the tube, like watery mashed potatoes but if she consumes more than "very small portions" it can build up in her stomach with bacteria, causing her to vomit. She said when this occurs, she needs to rely upon resource drinks to get her nutrition, which she will take via the tube. XCFB said she generally does not vomit after using the tube but can sometimes feel nauseated. XCFB said she vomits about twice per week when trying to eat without using the feeding tube; > > (b) XCFB said she experiences chronic pain in her fingers, making it difficult for her to perform simple tasks such as eating; > > (c) XCFB said that she finds it difficult to dress herself because of the pain in her fingers and struggles to put on her own shoes and socks, to do up buttons or to change her underwear without assistance from her mother; > > (d) XCFB said that she has a limited ability to stand up for long periods. She said she cannot stand up for long or bend over without feeling dizzy and faint and she experiences chronic pain in her back. She said this prevents her from undertaking housekeeping tasks and those duties fall primarily to her mother. To assist her mother, XCFB has a cleaner who usually comes to her home once a week; > > (e) XCFB says she relies on her mother to do the washing and that she struggled to carry and hang the washing, having previously dislocated her right shoulder trying to do so; > > (f) XCFB said that she finds it difficult to brush her teeth and hair due to the pain in her fingers and her mother brushes it weekly; > > (g) XCFB said if she is experiencing bad pain or dizziness, she will (often) not shower until the pain or dizziness subsides, and that she either uses a garden chair to help her shower, or her mother will help to wash and dry her; > > (h) XCFB said that cooking is difficult for her and her mother usually cooks frozen meals in bulk for XCFB and her two children. XCFB said when she feels up to it, she will sit at the kitchen bench and prepare a small snack. She said she will need help opening jars and packets due to the pain in her fingers.

3. The Tribunal asked XCFB at the hearing to describe what she did to care for her children. XCFB said she could change her youngest child's clothes, and there were meals in the fridge which she heated up for them. She said her youngest child sat on the couch with her watching shows on the iPad. When asked whether she helped them with their homework, XCFB said she did not, and that she had not been monitoring their homework. She mentioned that the teachers had been calling her about her eldest son falling behind with his homework.[122] XCFB said her mother would transport the children to where they needed to go.
4. XCFB's mother also prepared a witness statement signed on 15 July 2021.[123] XCFB's mother describes herself as XCFB's primary carer and the main carer for XCFB's two children. She said her house was "approximately two minutes away" from XCFB's home and that she stayed at XCFB's house during the day. She said she will usually go to her home in the daylight hours for about three to four hours to do her own shopping and laundry. XCFB's mother said most of the time she is at XCFB's home from 8.10am, to take XCFB's children to school and then to return to XCFB's home to make her breakfast, until the night. XCFB's mother says she usually leaves XCFB's home at some time between 7pm and 10pm; and if XCFB's symptoms flare up, she will stay at XCFB's home overnight.
5. XCFB's mother said she helps her daughter with "normal daily things like cooking, food, ordering groceries online for delivery, and washing clothes almost every day". She said that "majority of the time", XCFB could not undertake activities of daily living. XCFB's mother said on rare occasions, XCFB could make food or prepare food and do some dusting, but this was "a concern since she can pass out due to low blood pressure". She also said that on rare occasions, XCFB can shower herself and she had observed XCFB moving without her assistance.
6. XCFB's mother said she assists XCFB with the use of the feeding tube by cleaning it after it is used. She also said she assists XCFB to stand up from her couch or bed and to move around the house "to go to the toilet, shower, bedroom and wherever else in the house she needs to go". She said she does this by supporting XCFB's arm and moving her, which she said she does "most of the time". XCFB's mother said she assists XCFB with showering by shampooing her hair and washing her body with body wash. She said she dries her with a towel. She said she will brush XCFB's hair each week and will assist XCFB's youngest child to dress, wash and dry himself. XCFB's mother said that "sometimes" she will dress XCFB by taking off her clothes and putting on the clothes that XCFB has selected.
7. XCFB's mother says she assists XCFB to prepare and cook meals for her and her children; and that XCFB does not help with this because she says she is too dizzy and tired due to her low blood pressure. She says she cleans XCFB's house every day, and this consists of a general tidy-up, for example, washing the dishes and cleaning the kitchen. She said a cleaner does a full clean of the house once a fortnight.
8. XCFB's mother says she takes XCFB to her medical appointments "most of the time" and that she picks up and drops XCFB's children from and to school.
9. XCFB's mother says she washes and hangs out the laundry of XCFB and her children and takes the rubbish out. She said she occasionally waters the plants, but she is unable to do any backyard work.
10. At the hearing, XCFB said that her autonomic dysfunction varied every day; and that on some days she gave up and would sit on the floor of the shower to shower herself. She said there are some days where she is "so dizzy", has "so much head fog", and is fatigued, that she has had a few accidents when she blacked out.[124] She said those days "are a lot", that she needed help, and does not get out of bed. She said that when she is not well, she will not shower or change her clothes for a week and does not socialise.[125] XCFB said she cannot clean the house because as soon as she is up, she feels worse, and she referred to her arrythmia, blood pressure, dizziness, and sweating. She said her joints hurt.[126]
11. At the hearing, XCFB said she would not go to an appointment on her own and that she would need someone to take her. She says she holds her mother's arm. She said that she is "maybe okay" if she is "up for a little bit"; but for a long period, she could not walk far and would get dizzy and worried she would faint. She said that she would not stand up if she was alone at home and not feeling good, but on some days, she is good/fine and will walk around the house, "wash a dish" or "manage to brush my hair".[127] She said as soon as she feels dizzy, she will run to the couch and lie down.[128] XCFB said her mother was with her every day because she cannot do the things she is meant to do.
12. The Tribunal asked XCFB whether there were any other activities that she did in her spare time, from day to day, other than caring for her children. XCFB answered, "No".[129] When asked whether she watched television, she said, "Yes" and that she watched "a lot of Netflix". When asked whether she read books, she said, "No".[130] She said she slept a lot. XCFB said that her mother did most of the caring for her children, pointing out that her eldest son was very independent and did things for himself.[131]
13. At the hearing, XCFB's mother gave evidence that she "did everything" to support XCFB. She said she did the washing, cooking for the children and gave them breakfast, lunch, and dinner, she took the children to school, and she cleaned "every day".[132] XCFB's mother said she took XCFB to the Post Office, if it was necessary, and to appointments. She said she "basically" did "everything".[133] In terms of XCFB's self-care, XCFB's mother said that she washed her clothes. She said that if XCFB had joint pain and could not move on "that day", or she had bad blood pressure, that she put XCFB's clothes on. She said she would put XCFB in a chair and would wash XCFB herself and dry her. She said she sometimes cleaned XCFB's nails; and that if she did not feel good, she would put nail polish on the nails.
14. When XCFB's mother was asked by Ms Batten why XCFB did not do those things for herself, XCFB's mother referred to XCFB's blood pressure and she said that XCFB faints. She said XCFB had tachycardia that makes her breathless and because of the medication, she was always dizzy, drowsy, and she had very low blood sugar as well. She said that she had many complications and that when she had a "flare", XCFB was in bed sometimes for two weeks without even going to the toilet. She said XCFB got "poisoned" and had "vomiting and chilling".[134] She said the poisoning was from 80 or 90 per cent of her food staying in her stomach and that it became rotten which gave her a "big problem".[135]
15. Professor Hebbard, in his report dated 11 November 2019, stated that XCFB's chronic fatigue, dysautonomia and chronic pain interfere significantly with self-care including activities such as turning taps on and off (due to pain), showering (due to fainting), cooking (due to orthostatic intolerance and pain), cleaning (due to chronic pain and orthostatic intolerance), reaching up and handling washing (due to joint dislocation and orthostatic intolerance) and dressing (due to joint hypermobility and dislocation).[136] Professor Hebbard made the following observations about XCFB as set out in his 1 July 2021 report as follows (emphasis added):[137]

With regard to the specific impairments of functional capacity, my current and previous comments are based on my knowledge of the condition and reports from XCFB herself, I have not made a home visit or any formal assessment of many of the specific functions listed. My observations are that when she comes to appointments XCFB is always well groomed, she does not come alone, but is always accompanied. She can walk for short distances, but also requires a wheelchair for transport. She is articulate and able to engage and answer questions, giving a good account of her current symptoms. Many of my interactions with her have been by email and she is able to express herself well in that medium. I cannot specifically support or refute the observations of Dr Ashkar or Ms James. My starting point as a clinician is that the patient is reporting their symptoms and activities to me accurately, and my role is to support and empathise, offering treatments to reduce the impact of the condition on their lives. XCFB suffers from a poorly understood condition, but one that is sufficiently recognisable to be afforded the moniker of a syndrome (ie there are an identifiable group of patients suffering from similar problems, even though the underlying genetic/molecular/physiological cause has not been defined). Due to the population of patients that I see these tend to be at the more severe end of the symptom/impairment spectrum and XCFB falls into that group. The degree of support that she reports that she requires with her activities of daily living are consistent with the condition, and I have had no specific reason to doubt her reports relating to the degree of functional impairment and need for assistance.

16. A/P Holmes stated in his clinical note dated 8 April 2021 that he considered that XCFB had a "very poor level of function and independence". At the hearing, A/P Holmes was asked to clarify what he meant by that. He said he did not mean this in "the formal kind of occupational therapy" or "ADL-type function", but more as a reference to her ability to engage in normal activities that are "age and culturally appropriate". In relation to the further statement in his clinical note that he considered XCFB's functional prognosis to be poor, he said that he was referring to the same functions.
17. Dr Hamer, in his report dated 26 May 2021, explained the potential impacts that the condition of orthostatic blood pressure intolerance, associated with chronic fatigue and mental "fogging", has on everyday life. He stated that it could limit the time spent in an upright posture; and could be aggravated by a number of daily issues including levels of hydration, hot environments, mental stress, and the demands of physical activity.[138] Dr Hamer said he was unable to comment on XCFB's current functional capacity as he had not seen her for over 12 months. However, he foreshadowed that this type of condition, with associated chronic fatigue and mental fogging, in "most patients" caused significant disruption to everyday activities, both within and outside of the person's dwelling; with marked disability related to being up and about and performing simple activities. He considered the exact degree of functional capacity was best measured by an OT.[139]
18. XCFB's treating OT, Ms Riddell, prepared a functional assessment report dated 9 July 2021, following an assessment of XCFB on 29 June 2021. Ms Riddell states in her report that XCFB had reported that she showered and dressed only once per week due to her symptoms of dizziness and fatigue and that depending upon how she was feeling, XCFB's mother might need to assist with transfers from XCFB sitting on the shower base which was how she preferred to shower. Ms Riddell also refers to XCFB having reported that her mother assists her to wash her hair and to dress her if her joints are painful or she is experiencing dizziness and/or extreme fatigue.[140] Ms Riddell concluded from this assessment that, considering XCFB's age, she had demonstrated "a reduced quality of life and a significantly reduced functional capacity to participate in daily life activities". Ms Riddell states that XCFB has "some infrequent intervention from physiotherapy and psychology" and is likely to benefit from further allied health interventions, and from assistance by support workers on a weekly basis, to support her with ADLs including self-care, mobility, and community access.
19. The NDIA contended, in its Closing Submissions, that there is "insufficient reliable material" on which the Tribunal can be satisfied that XCFB has a substantially reduced functional capacity for the purposes of s 24(1)(c) of the NDIS Act; or that she is likely to require support under the NDIS for her lifetime for the purposes of s 24(1)(e) of the NDIS Act.[141] The NDIA contended as follows:

The Applicant's propensity to exaggerate her symptoms means that the occupational therapist reports before the Tribunal do not provide a reliable basis on which the Tribunal can be satisfied of the Applicant's functional capacities. Given the extent to which the functional capacities of persons with the Applicant's impairments vary from person to person, the medical evidence does not enable the Tribunal safely to draw the inference that the Applicant has substantially reduced functional capacities.

20. The basis for those contentions arose from two independent assessments that the NDIA had arranged. The first was by an independent occupational therapist, Ms Fiona James. Initially, Ms James interviewed XCFB during two consecutive videoconference assessments on 9 April 2020, being a time when COVID-19 restrictions were in place. Ms James was also provided with various reports relating to XCFB. Ms James provided a report dated 27 April 2020 (Ms James' First Report), noting that she considered there were inconsistencies, in her observations of XCFB.
21. Following this assessment by Ms James, the NDIA arranged for an independent neuropsychologist, Dr Peter Ashkar, to assess XCFB. Most of the time during this assessment was spent conducting psychometric testing. Dr Ashkar was provided with a copy of Ms James' First Report. Dr Ashkar provided a report dated 19 January 2021 (Dr Ashkar's First Report). In this report, Dr Ashkar set out his findings from the assessment, being that they provided no basis to support a diagnosis of intellectual disability, cognitive impairment or of a psychiatric condition or neurological disorder impacting on her cognitive functioning. Dr Ashkar concluded in his report that it was difficult (if not impossible) for him to assess the quality of XCFB's functional ability "in view of her symptom exaggeration". He states "With that said, the findings from this assessment provide no evidence of impaired functional ability. They do however provide compelling evidence that she is exaggerating her functional difficulties..."[142]
22. The basis for Dr Ashkar's opinions set out above arose from his testing of her "effort on neuropsychological testing". In Dr Ashkar's First Report, he stated as follows (emphasis added):[143]

Assessment of Effort on Neuropsychological Testing

23. XCFB failed four of six tests of cognitive effort administered during the assessment. These tests require minimal cognitive effort and are simple to pass except for those individuals with severe cognitive impairments (e.g., severe traumatic brain injury, advanced stages of dementia). Malingering is indicated by failure on three of these tests in normal populations and failure on four of these tests in clinical populations, where there is financial gain to be had. Her failure on four of these tests provides compelling evidence that she is malingering her cognitive symptoms. Assessment of her cognitive functioning was not pursued any further in light of these concerns.

Assessment of Emotional/Psychiatric and Personality Functioning (MMPI-2-RF)

24. XCFB demonstrated appropriate levels of attention and concentration, and also comprehension when completing this measure and her responses are considered valid in this regard. She reported a much larger than average number of infrequent responses (F-r = 92), a considerably larger than average number of somatic symptoms rarely described by individuals with genuine medical problems (Fs = 115), a very unusual combination of responses that is associated with the non-credible reporting of somatic and/or cognitive symptoms (FBS-r = 105), and a very unusual combination of responses that is strongly associated with non-credible memory complaints (RBS = 105). This pattern of responding is very uncommon even in individuals with substantial medical problems or substantial emotional dysfunction and provides compelling evidence of symptom exaggeration (and in the context of her application for funding, malingering). Further analysis of her profile was not pursued in light of these concerns.
25. At the hearing, Dr Ashkar gave evidence that these tests require "minimal cognitive effort" and "are simple to pass" except for those individuals with severe cognitive impairments, such as advanced dementia. He described one of the tests. He said the person being tested would be shown a set of pictures. They are then shown two pictures (one that was in the original set and one that was not) and the person is required to say which was in the original set. Dr Ashkar said this was a "very, very easy task" because the person does not have to recall from memory and instead, may recognise from their memory, which he said was an easier cognitive process. He said the cut off for a poor effort is 45 out of 50 and that XCFB had scored 29 on this test.[144]
26. XCFB gave evidence that she felt very unwell during that testing process; and that she was suffering either brain fog, or was not concentrating, or both. At the hearing, Dr Ashkar indicated that his standard practice when administering psychometric testing was to always ensure the person was concentrating when they did the test. If there were indicators that the person was unable to pay attention, he said he would either suspend the test, give the participant a break, or reschedule the assessment.[145] The Tribunal asked A/P Holmes whether he considered that if a person had "brain fog" that it might affect their performance during psychometric testing; to which he said he did not think brain fog could be used to explain poor performance on a neurocognitive test. A/P Holmes stated that "you either perform well on a neurocognitive test or you don't".[146]
27. There was also an issue in dispute between the parties about whether Dr Ashkar had provided XCFB with an opportunity to take a break from the assessment if she needed to. XCFB's mother, in her witness statement, had asserted that Dr Ashkar had shown little consideration for XCFB's wellbeing, and had placed undue pressure on her to complete the assessment. At the hearing, XCFB gave evidence that Dr Ashkar did not mention anything to her about being able to take breaks, but he had told her to let him know if she needed to use the bathroom.
28. Dr Ashkar provided a second report on 19 August 2021 (Dr Ashkar's Second Report) in which he addressed XCFB's mother's assertion in this regard. Dr Ashkar categorically denied this was the case. He noted that XCFB was a "reluctant participant and required a great deal of encouragement and support to complete the bare minimum of testing". This is consistent with the Tribunal's observations of XCFB during the Tribunal review hearing. Dr Ashkar said he simply provided encouragement and support to XCFB and made it clear that she was free to take breaks as needed, and to discontinue the assessment if she wanted to do so.[147]
29. Dr Ashkar was cross-examined about this again at the hearing and he maintained that XCFB's mother's suggestion that he had not made it clear to XCFB that she could take a break was "categorically" not accepted by him.[148] At the hearing, XCFB gave evidence that she was keen for the assessments to be over and done with.[149] This is inconsistent with XCFB's mother's evidence. The Tribunal finds, on the balance of probabilities, that XCFB did not choose to take breaks during the assessment or chose not to discontinue the assessment that day because she did not wish to do so; and, instead, XCFB wanted it completed and over with, and not because Dr Ashkar had not made it clear to XCFB that she could do so. The Tribunal rejects XCFB's mother evidence in this regard and accepts Dr Ashkar's evidence as to how XCFB approached this assessment and the representations he had made to XCFB about taking a break if she needed to do so.
30. At the hearing, XCFB said she remembered attending an assessment on 30 October 2020 with Dr Ashkar at the NDIA's Epping office. XCFB said she thought it lasted for four hours. She said during that assessment, Dr Ashkar had run tests and made her repeat them "over and over".[150] When asked to respond to Dr Ashkar's assertion that the tests required minimal effort to pass them, XCFB said:[151]

I say when you can't keep your eyes open and you've been going for four hours, like a criminal, I couldn't do it anymore and he knows that so, you know, I was falling asleep so I failed.

31. XCFB refuted that she had intentionally answered the questions "inaccurately" and questioned why she would do that. XCFB was invited to comment about Dr Ashkar's opinion that she had deliberately exaggerated her cognitive symptoms. XCFB said that she thinks he did not understand a diagnosis of "dysautonomia", and that cognitively, "you're not there at all times". XCFB said she had made every effort to answer Dr Ashkar's questions accurately, because she wanted to do it right and for it be over with. She also confirmed she made every effort to answer Ms Riddell's questions accurately when she undertook the OT assessment of XCFB.[152]
32. At the hearing, when XCFB was referred to Dr Ashkar's suggestion in his report that XCFB exaggerated her symptoms, she said that this was "really untrue and unfair". She denied exaggerating her symptoms and said, "I was at my best of my ability that day. As I said - I told him I was doing my best. And he assured me, and he said, 'Good girl. You've done well.' I don't know. I don't believe that."[153]
33. At the hearing, XCFB was asked what her health was like during this assessment with Dr Ashkar. She said she felt awful and had been up the night before "vomiting, sick". XCFB said she was dehydrated and could not get out of bed that morning. She said it was early in the day and she was exhausted. XCFB said she asked Dr Ashkar if she could lay (or sit) on his couch (she said she was dizzy and sick), and that he would not allow it. She said her back was hurting also, and that he made her sit at the desk on a chair.[154] She said she remembered the fatigue was debilitating and her eyelids were closing. She said, "That's why I can't even drive".[155] She said she stared at him, like she was not hearing him and said, again, she felt awful.[156] She said she could not sit upright so she had her arm on Dr Ashkar's desk with her head down on her arm.[157]
34. Dr Hamer states, in his report dated 26 May 2021, that he does not believe that XCFB's health issues, including her physical fatigue and mental fogging, would prevent her from participating in current and future assessments of physical capacity and cognitive impairment.[158] The Tribunal accepts this evidence and also the evidence by A/P Holmes suggesting that "brain fogging" was unlikely to affect how a person performed in psychometric testing.
35. However, the Tribunal expects that, as per Dr Ashkar's observations, XCFB was a reluctant participant throughout the testing given her general, somewhat defiant, attitude to such processes, as observed by the Tribunal during the review proceeding. The Tribunal considers that this was likely to have led to XCFB's concentration and engagement with the testing process to be deficient; and this would have impacted upon and perhaps explained in part the test results, which led Dr Ashkar to a conclusion that she was not making an effort and/or exaggerating her symptoms. This is most unfortunate. The Tribunal understands why the NDIA was contending that the Tribunal did not have sufficiently reliable materials before it upon which to make its decision. The Tribunal considers that the NDIA was justified in being doubtful about the veracity of XCFB's claims in relation to the extent of her symptomatology and functional incapacities. This situation is quite complex though. The Tribunal does not consider it appropriate to take a black and white approach to an assessment of the evidence before it, simply because the assessment undertaken by Dr Ashkar appeared for the most part, to have been a waste of time, due to XCFB's reluctance (or inability given how she felt at the time) to engage properly with it.
36. Subsequently, Ms James conducted a further in person functional assessment of XCFB in her home in February 2021 and issued a further report dated 11 March 2021 (Ms James' Second Report).[159] XCFB said that during the assessment with Ms James, she had told Ms James that she was unable to take a step or to walk. XCFB said that she had tried to do so in the assessment with her mother's assistance. XCFB said she walked a few steps, and her head was dizzy. She said she did not want to faint.[160] XCFB said she told Ms James her head was spinning; she was dehydrated and that she "can't do this". She said she sat straight down.[161] XCFB said Ms James asked if she could take XCFB's pulse. XCFB said she allowed Ms James to do so.[162] XCFB said she could not remember asking Ms James what her heart rate was following this pulse reading. Ms James evidence is that when she took this measurement XCFB's heart rate, it was not elevated as asserted by XCFB.
37. At the hearing, XCFB was invited by Ms Batten to comment on the suggestion made by Ms James in her report, that XCFB was untruthful during her assessment. XCFB refuted this suggestion, and she gave the following evidence, "I say everything that I said on that day was no word of a lie. And I want to know why she thinks that I was untruthful, when everything was told - the truth."[163] XCFB also refuted Ms James' further statement that she had a "misleading, conflicting and errorful presentation". XCFB said this was not true at all, and that she was an honest person and had been so for her whole life. XCFB said she will present on the day based on how she is feeling inside. She said on a good day, she would do what she can.[164]
38. Ms Batten invited XCFB to comment on Ms James' statement in her report that, after the assessment on 10 February 2021, Ms James had observed XCFB walking unaided and without effort onto XCFB's back deck and return inside of her home. XCFB said that this did not happen. XCFB gave the following account of what had occurred:

... when Ms James was at my house and my mum had made me some mashed potatoes because I wasn't feeding at that time because I was having tube problems and I was eating mashed potatoes. And then after she left, I was complaining through it that I had a lot of nausea that day, I was really sick, I had been throwing up. And I was sick (indistinct) and about, I don't know, it was a while after, like 10-15 minutes after, I started to vomit and my - where I laid down is - I can touch the sliding door with it and I sort of got up and crawled and went and started vomiting. But if she's talking about that, then that's the only time I was sort of at the entry of the deck and my mum was next to me - behind me.

39. Under cross-examination, XCFB said she went down to the ground and that she was vomiting out onto her deck. She said that "maybe" half of her body was out of the door. She said she could not remember if her mother was outside of the door or where she was located because she was vomiting at the time. XCFB said she had gastroparesis and that "you vomit up to 20 times a day". She said she had told Ms James she was feeling sick.
40. At the hearing, XCFB asserted there was "no way to look over the back side" (of her house).[165] XCFB's house is on a corner block. A photograph taken by Ms James showing a view from the side street of XCFB's house into her back yard was put to XCFB. XCFB accepted that it was possible to see into the side/back of her house from around the corner.[166] Ms James seemed certain at the hearing that she had seen XCFB standing up on her back porch after the assessment and XCFB strenuously denied that was her.[167] The Tribunal preferred the evidence of Ms James and could see from the photograph that Ms James had a line of sight and would have been able to see XCFB at her back door standing, as reported by her. The Tribunal does not accept XCFB's denial.
41. At the hearing, XCFB was asked how she had felt during the in-home assessment with Ms James. XCFB she said she felt "real sick" and that her feeding tube was blocked ("my feeding tube had knotted itself in my intestines") so she could not pump any medications or fluids through her tubes. She said she was on the waiting list to have the tube changed.[168] She said she was not eating (she said she was eating "little bits of mashed potato").[169] Following a short break in the hearing, XCFB said she had remembered that her feeding tube had become blocked at about Christmas time. She said they have inserted a new brand of tube at Christmas and by the end of December (2020), she started having problems with it. She said in February (2021), she started getting blockages from the top half of her stomach and she ended up at the Royal Hospital because she could not "vent out the stuff that was in my stomach", she had produced "lots and lots of acid", was vomiting a lot and losing weight.[170] She said she had seen Professor Hebbard through mid-January to mid-February.[171]
42. The Tribunal finds that there has been a degree of embellishment on the part of XCFB and her mother, in relation to their accounts of the degree of symptomatology and impacts of XCFB's Permanent Impairments on her day-to-day functional capacity, including in relation to her "self-care". One instance of this XCFB presented to Ms James in her home that she could not stand and then Ms James observing XCFB a short time after standing at her back door. Another instance is XCFB's past statements that she is unable to drive. She said her mother usually did the driving, picked her children up from school and went with her to appointments.[172] During the hearing, the Tribunal noticed an image from inside of XCFB's home, showing that there was a car in XCFB's internal garage. The Tribunal asked XCFB whose car it was. XCFB said, "That's not our car, my dad's been in - we've been in this house for a year, that's not my car (indistinct)."[173] XCFB was asked if she owned a car to which she answered, "No". XCFB's mother gave evidence that this car was in XCFB's name but belonged to her son (XCFB's brother).[174] XCFB was asked by the Tribunal whether she had a driver's licence to which she answered, "Yes". XCFB was asked to retrieve her driver's licence. She did so. XCFB informed the Tribunal, when asked, that the expiry date on her licence was 23 September 2022. When asked if she was proposing to renew her driver's license, XCFB said, "I haven't even thought about it, I didn't even know when it was expiring". When asked again whether she was going to renew her licence, XCFB said, "Yes, I will, yes, I will".[175] The Tribunal infers from, and makes findings that, given XCFB's intention to renew and maintain a driver's licence and the fact that there was a car in her garage with no reasonable justification as to why it was there, XCFB has a car at her disposal and that she drives it as a means of transportation in her day to day life despite XCFB's evidence to the contrary.
43. However, on the balance of probabilities, and despite the Tribunal's findings that there is a degree of embellishment in XCFB and her mother's accounts of the effects of the Permanent Impairments, when taking into account the objective medical and clinical evidence of Professor Hebbard, A/P Holmes, Dr Salaria, Dr Hamer and Ms Riddell referred to above, the Tribunal is satisfied that XCFB requires assistance by a person and/or equipment, at least some of the time, to perform many of her activities of daily living in the area of self-care due to the impacts of her Permanent Impairment. The Tribunal is satisfied, but only marginally so,[176] that XCFB has a substantially reduced functional capacity in the area of self-care. For this reason, the Tribunal concludes that XCFB meets the criterion under s 24(1)(c) of the NDIS Act.
44. It is only necessary for a person requesting access to the NDIS to establish that they have a substantially reduced functional capacity arising from their permanent impairments to gain access to the NDIS. For this reason, it is not necessary for the Tribunal to proceed to an assessment about whether XCFB has substantially reduced functional capacity in any of the other five prescribed areas.

1. In conclusion, the Tribunal is satisfied that XCFB meets the access requirements under s 21 of the NDIS Act because she meets the "disability requirements" under s 24 of the NDIS Act. It is not in contest in this application that she also meets the age requirements under s 22 and the residence requirements under s 23 of the NDIS Act. Given this conclusion, it is not necessary for the Tribunal to proceed to a consideration as to whether XCFB meets the early intervention requirements under s 25 of the NDIS Act.
2. Given the Tribunal's findings at paragraph [173], when the NDIA proceeds to create an NDIS plan for XCFB, the Tribunal makes a non-binding observation that it would be warranted for the NDIA to require XCFB to undertake further detailed functional assessments of her physical, cognitive, and mental health capacity and support needs. The Tribunal encourages XCFB to take a different approach to those assessments than the somewhat defiant approach she took in the assessments by Ms James and Dr Ashkar or if she is feeling unwell, to ensure that the assessment is rescheduled for a time when she is able to participate. The Tribunal observes this prior approach appears to have greatly hindered rather than helped XCFB, and those seeking to make informed decisions about her, as required under the provisions of the NDIS Act.
3. Accordingly, the Tribunal sets aside the decision under review, and in substitution, decides to grant XCFB access to the NDIS on the basis that she meets the mandatory access criteria under s 21 of the NDIS Act.

1. I certify that the preceding 178 paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

.........................[sgd]...............................................

25, 26 & 27 August 2021, 7 September 2021, and 4 October 2021

1. At the commencement of the hearing, Ms Batten, on behalf of XCFB, sought an order that a pseudonym be used in place of the Applicant's name, so that she is not linked to the "very sensitive and personal medical information" that would be in evidence in this application.[177] Ms Batten said she was not seeking an order that there be no publication of the decision, or that the hearing be held in private.[178]
2. Ms Batten submitted that this application concerned "highly sensitive personal information" in relation to XCFB, including:

(a) details of her impairments, treatments, prognosis, and functional capacity; and > > (b) medical evidence from a number of different experts including a gastroenterologist, cardiologist, occupational therapist, and neuropsychologist.

3. Ms Batten submitted that the public disclosure of XCFB's personal and sensitive health information to the public at large, would cause "significant prejudice" to XCFB. Ms Batten informed the Tribunal that XCFB was not prepared to proceed with this review application before the Tribunal, if there was no confidentiality order made. Ms Batten contended this would then constitute a "prejudice to the proper administration of justice".
4. Ms Batten submitted that:

(a) since the onset of XCFB's conditions, she has had to cease work and cease socialising; > > (b) XCFB no longer has friendships and does not want people to know her personal information, for example, that she needs to use a feeding tube; and > > (c) XCFB regards this as being "cruel, and a punishment, that to try and access the NDIS, she needs to publicly disclose that information in a way that is connected to her identity".

5. Ms Batten submitted that health information is "ordinarily strongly protected", citing an example that health and genetic information is recognised as "sensitive information" under the Privacy Act 1988 (Cth), and that sensitive information is given greater protection under the Australian Privacy Principles than other information.[179] Ms Batten submitted that (Victorian) State organisations are bound by the Health Records Act 2001 (Vic), which provides that health information must not be used or disclosed except in accordance with that Act, and in proceedings before the Victorian Civil and Administrative Tribunal (VCAT), applicants are often granted pseudonyms to protect their identity.
6. Ms Batten acknowledged that s 35 of the AAT Act requires this Tribunal to consider and determine where the balance lies between competing public interests of open justice, and the desire to avoid prejudice. Ms Batten contended that the public interest of open justice could be "achieved with a pseudonym". Ms Batten contended there could be no public interest in members of the public knowing XCFB's particular identity and that open justice would be served, because members of the public could read the decision and potentially attend the hearing if they wished to do so.
7. Finally, Ms Batten submitted that the Australian Law Reform Commission recognised privacy as being "important to enable individuals to live a dignified, fulfilling, safe and autonomous life".[180] Ms Batten highlighted to the Tribunal that the right to privacy is recognised as a fundamental human right, and also in Principle 10 in s 4 of the NDIS Act, which states that people with disability should have their privacy and dignity respected.
8. In opposition of XCFB's application for orders under s 35 of the AAT Act, the NDIA's counsel, Ms O'Gorman submitted, at the hearing, that the NDIA acknowledged the importance of XCFB's right to privacy. However, this right could not determine the outcome of the application for an order under s 35. Ms O'Gorman referred to this provision of that AAT Act as establishing a general principal that unless there is a good reason to the contrary, review proceedings before this Tribunal are to be held publicly.
9. Ms O'Gorman cited the decision of the Administrative Appeals Tribunal in Re Rana v Military Rehabilitation and Compensation Commission (2009) ALD 217. Of particular note to the Tribunal, is the following observation Deputy President Forgie in that matter:

Some decisions may concern the distribution of the Commonwealth of the Australian community, be it monetary or otherwise. Others may concern the grant of licences or privileges to some, but not to others. If the public is to have confidence in a public administration that makes decisions of these sorts, there must not only be consistency in its decision making, but its decisions must be seen to be consistent.

10. Ms O'Gorman submitted that this observation applied in this application, and that the transparency of the NDIA's decision-making, about who is entitled to be a participant and the process by which the NDIA (and the Tribunal on review) makes its decisions about who satisfied the statutory test, is "a public issue", "going to the heart of the maintenance of the NDIS as a public good".[181]
11. Ms O'Gorman said the NDIA acknowledged that a more targeted application could be made (by XCFB) in respect of some medical records, to redact the more sensitive and personal medical information (for example, concerning the feeding tube), and the decision could contain that redacted information. Ms O'Gorman said that the use of a pseudonym is "too blunt of a tool in light of the serious issues of credibility that this application raises".[182]
12. Ms O'Gorman submitted as follows:[183]

The testing of the process by which the Agency and the Tribunal makes decisions about participation in the scheme, when the expert evidence is of the kind that it is in this case is, in my submission, a public matter, and one that should, as far as possible, be made publicly known.

13. On the first day of the hearing of this application, the Tribunal made a decision ex tempore to grant XCFB's interlocutory application for an order for the use of a pseudonym in place of her name in the Tribunal's published Decision or Reasons for Decision in this application. In doing so, the Tribunal indicated to the parties that it was not influenced by Ms Batten's submissions about XCFB's right to privacy, based on its view that the AAT Act is clear, there is an expectation that matters before this Tribunal would be a matter of public record, and if a person chose to bring a proceeding in this Tribunal this was "part of the landscape", unless an application was made for orders under s 35 of the AAT Act (as XCFB had done). The Tribunal also indicated to the parties that it was not influenced by Ms Batten's indication of what XCFB was proposing to do if the Tribunal did not grant her interlocutory application.
14. The Tribunal acknowledged the sensitivity of some of the information that might be considered in proceedings involving an examination of a person's medical history and treatment history. The Tribunal noted that this often a necessary feature of applications arising in other Divisions of the Administrative Appeals Tribunal (that is, other than the NDIS Division), in particular in the Veterans' Appeals Division or applications involving decisions about claims for workers' compensation or disability support pensions, reviewed by the General Division. The Tribunal observes that it was not uncommon in such matters for the Tribunal's Reasons for Decision to be published containing information that openly identifies an individual person by name and sets out their medical history in detail.
15. Turning to the individual circumstances of XCFB, the Tribunal took into account of the precise type of the Applicant's medical conditions the subject of this application, and the type of evidence that would be called, being sensitive in nature. In particular, the Tribunal considers that in XCFB's application, there would be a lot of evidence, and testing of that evidence, in relation to gastrointestinal function, which the Tribunal acknowledged and understood would be a sensitive matter for XCFB. The Tribunal also noted the indications that XCFB suffered from "anxiety and depression", which led the Tribunal to address in detail at the hearing, the Applicant's history and treatment of those conditions, including whether she had received counselling. The Tribunal was satisfied that very sensitive matters lie at the heart of this evidence.
16. The Tribunal informed the parties that it was generally reluctant to make the type of orders sought by XCFB. However, the Tribunal is satisfied that due to the particular type of conditions that need to be addressed as part of this application, which the Tribunal considers to be highly sensitive information, XCFB's psychological state is likely to be (negatively) impacted if the Tribunal's Decision and Reasons for Decision are published in a way that allows her to be identified.

Accordingly, the Tribunal granted XCFB's interlocutory application in the terms sought by XCFB made and s 35 Order in terms proposed by the Applicant.

[2] Refer clinical note of Associate Professor Holmes.

[12] Refer Transcript at P-10 and P-12.

[13] Refer NDIA's Closing Submissions at paragraph [3].

[14] Dysautonomia is term used to describe several different medical conditions that cause a malfunction of the autonomic nervous system.

[15] Refer NDIA's Closing Submissions at paragraph [1].

[17] Refer Access Guidelines at pages 6 and 7.

[24] Statement of Lived Experience, at [5].

[25] Refer T-Documents T9, p 51 (Dr Hamer).

[26] Ibid at T4 (Dr Huitan); Hebbard 2021 Report.

[27] Statement of Lived Experience, at [6], [7].

[28] Statement of Lived Experience, at [6], [7].

[29] Refer T-Documents T9, p 51 (Dr Hamer).

[30] Statement of Lived Experience, at [9], [10].

[32] Hebbard 2021 report. Statement of Lived Experience, at [11].

[33] Statement of Lived Experience, at [11].

[34] Refer T-Documents T9, p 51 (Dr Hamer).

[56] Refer A/P Holmes' clinical note at page 3.

[76] The Tribunal notes in NDIA v Davis that Mortimer J raised a question about the validity of Rules 5.4 and 5.6 being exclusionary in effect. The parties were provided with a copy of this decision and invited to make submissions or to request a resumed hearing if they desired to do so. No submission was made by either party as to the validity of these two rules so accordingly, the Tribunal has not considered the observations made by Mortimer J about those rules.

[77] Refer XCFB's SFIC at [22] and [23] and Transcript at P-14.

[78] Refer NDIA v Davis and Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201.

[80] Refer paragraph [46] above. A/P Holmes was asked to explain this comment, see Transcript at P-297.

[93] Refer XCFB's Closing Submission at paragraph [30].

[100] Refer NDIA's SFIC at paragraph [37] and NDIA's Closing Submission at paragraph [3(a)].

[101] Refer NDIA's SFIC at paragraph [38].

[102] Refer NDIA's Closing Submission at paragraph [3(a)].

[106] Refer NDIA's SFIC at paragraph [9(a)].

[107] Refer NDIA's Closing Submission at paragraph [3(a)].

[112] Refer NDIA's SFIC at paragraph [9(a)].

[113] Refer NDIA's Closing Submission at paragraph [3(a)].

[116] Refer the Access Guidelines at page 9.

[141] Refer NDIA Closing Submissions paragraph [3(b)].

[142] Refer Dr Ashkar's First Report at page 8.

[144] Refer Transcript at P-119 & P-120.

[147] Dr Ashkar's Second Report at page 2.

[176] Once XCFB has been provided with capacity building supports funded under the NDIS for a period of time, particularly those intended to address (or build independence and capacity in relation to) her impairments attributed to by psychiatric conditions, it is possible that the NDIA may consider revoking her participant status under s 30 of the NDIS Act at some point in the future.

[179] Ibid at P-4; The Australian Privacy Principles forms Schedule 1 to the Privacy Act 1988 (Cth).