1. On 9 April 2020, the Applicant made an access request to the National Disability Insurance Agency (NDIA or Agency) to become a participant in the NDIS.[3]
2. On 29 April 2020, a delegate of the Chief Executive Officer (CEO) of the Agency decided, under section 20 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), to refuse the Applicant's request for access to the NDIS (the reviewable decision) on the basis that the Applicant did not meet all the statutory criteria for access to the Scheme.[4]
3. On 11 June 2020, the Applicant sought, under section 99 of the NDIS Act, an internal review of the reviewable decision.
4. On 29 June 2020, following that internal review, a delegate of the CEO decided under section 100(6) of the NDIS Act to confirm the reviewable decision.[5]
5. On 23 July 2020, the Applicant lodged an application to the Tribunal for a review of that internal review decision.[6]

1. The application was heard by the Tribunal on 29, 30 and 31 August 2023. The Applicant and her legal representatives appeared in person and the Respondent appeared via audio-visual link.
2. The Tribunal was provided with a tender bundle incorporating the T-documents.[7] Other documents admitted into evidence at the hearing included:

(a) Clinical notes of Registered Psychologist Shelley Tipene of Inspire Psychology for the period 27 October 2017 to October 2018;[8] > > (b) An email from the Applicant to the Agency dated 1 September 2020, setting out her 'daily lived experience';[9]

(c) A report of Fiona Stanley Hospital General Medicine Consultant Dr Ariadna Spatariu dated 11 February 2021;[10]

(d) A letter from Fremantle Hospital and Health Service Mental Health Registrar Dr Amatul Bushra to Dr Jing Lin dated 24 March 2021;[11]

(e) A 'Statement of Lived Experience' from the Applicant filed with the Tribunal on 30 March 2021;[12]

(f) An Occupational Therapy Functional Assessment report of Occupational Therapist Jayne Cruttenden of Beyond Function Occupational Therapy Services dated 21 September 2021,[13] and her Professional Profile;[14]

(g) An amended briefing letter from the Respondent to Occupational Therapist Jayne Cruttenden dated 28 September 2021;[15]

(h) A briefing letter from the Respondent to Consultant Psychiatrist Dr Victor Cheng of The Swan Centre for Eating Disorder Treatment dated 28 September 2021;[16]

(i) A report of Consultant Psychiatrist Dr Victor Cheng dated 1 October 2021;[17]

(j) Decision and Reasons for Decision dated 24 November 2021 in Administrative Appeals Tribunal matter 2020/3436 XYVL & Secretary, Department of Social Services, concerning the Applicant's application for review of a decision denying her a Disability Support Pension;[18] and

(k) NDIS Operational Guideline 'Applying to the NDIS' dated 26 June 2023 (to replace the superseded guidelines in the T-Documents).[19]

1. The following witnesses gave evidence at the hearing:

(a) The Applicant;[20]

(b) The Applicant's mother (Mrs XVYL);[21]

(c) General Medical Practitioner Dr Jing Lin;[22] and

(d) Occupational Therapist Jayne Cruttenden.[23]

1. The Tribunal also had the Applicant's[24] and Respondent's[25] respective Statements of Facts Issues and Contentions filed in the proceedings, and the benefit of oral submissions at the hearing.
2. I have considered the relevant factual and expert evidence and refer to parts of the same in these reasons.

1. The issue for determination by the Tribunal was whether the Applicant meets the access criteria under section 21 of the NDIS Act.
2. The reviewable decision determined that the Applicant meets the age requirement in section 22 and the residence requirements in section 23 of the NDIS Act. It also determined that the Applicant had met the requirements of section 24(1)(a) (disability attributable to impairments or impairment attributable to psychiatric condition).[26]
3. At the hearing, the Respondent conceded that the Applicant met the criteria provided for by section 24(1)(b) ('the impairment or impairments are, or are likely to be, permanent') and section 24(1)(d) ('the impairment or impairments affect the [Applicant's] capacity for social or economic participation').[27] However, the Respondent maintained that the Applicant does not meet the criteria in section 24(1)(c) ('the impairment or impairments result in substantially reduced functional capacity'), or section 24(1)(e) (the Applicant is likely to require lifetime support under the NDIS). The Respondent also maintained that the Applicant did not satisfy the requirements for early intervention under section 25.
4. The Applicant contended that her disabilities qualify her for entry into the Scheme, as she:[28]

(a) has substantially reduced functional capacity in the domains of social interaction and mobility, as required by section 24(1)(c)(ii) and (iv);

(b) is likely to require the support of the NDIS for her lifetime, as required by section 24(1)(e); and, in the alternative,

(c) is eligible under the early intervention criteria.

1. The question before the Tribunal requires consideration of the application of the NDIS Act and several statutory instruments made under it.

1. By section 18 of the NDIS Act, a person may make a request to the Agency to become a participant in the Scheme, which access request must be considered by the CEO.[29] A person can become a participant if they meet the 'access criteria' identified in section 21(1); namely, if:

(a) the CEO is satisfied that the person meets the age requirements (see section 22); and

(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

(c) the CEO is satisfied that, at the time of considering the request:

(i) the person meets the disability requirements (see section 24); or

(ii) the person meets the early intervention requirements (see section 25).

1. The Respondent accepts that, for the purposes of section 21(1), the Applicant meets the age requirements and residence requirements of sections 22 and 23 of the NDIS Act.
2. Section 24(1) of the NDIS Act provided that:

(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. As an alternative to mmeting the disability requirements under section 24, a person may gain access to the Scheme if they satisfy the early intervention requirement under section 25. At the relevant time, section 25(1) of the NDIS Act provided that:

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

(a) the person:

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

(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

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

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

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

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

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

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

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

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

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

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

1. Rules to govern decision-making about access to the Scheme and other matters can be made by legislative instruments under sections 27 and 209 of the NDIS Act. Relevant to this application are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Rules).[30]

1. Relevantly, the Rules provide as follows regarding the disability requirements:

When does an impairment result in substantially reduced functional capacity to undertake relevant activities?

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. As to the early intervention requirements, the Rules provide as follows:

6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:

(a) the likely trajectory and impact of the person's impairment over time; and

(b) the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and

(c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.

(Paragraph 6.9 is made for the purposes of paragraph 27(d) of the Act. It does not compel the CEO to take the actions mentioned in that paragraph in any particular instance.)

1. The NDIA has made operational guidelines for the application of the NDIS Act and its Rules. The operational guidelines represent government policy and, to the extent that they are consistent with the relevant legislation, should be applied by the Tribunal unless there is a sound reason not to do so.[31]
2. Guidelines applicable at the time of the decision under review included the 'National Disability Insurance Scheme - Operational Guidelines - Access'.[32] By the time of the hearing, these had successively been replaced by the guideline 'Applying to the NDIS' dated 1 July 2022, and the 'Applying to the NDIS' guideline of 26 June 2023 (Applying Guideline).[33] That has since been replaced by the 'Applying to the NDIS' guideline of 22 December 2023. To the extent relevant to this application, there is no material difference between the guidelines of 1 July 2022, 26 June 2023, and 22 December 2023.
3. The Applying Guideline, relevantly, provides as follows:[34]

Does your impairment substantially reduce your functional capacity?

Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:

• Communicating - how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
• Socialising - how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
• Learning - how you learn, understand and remember new things, and practise and use new skills.
• Mobility, or moving around - how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
• Self-care - personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
• Self-management (if older than 6) - how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.

Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.

• a high level of support from other people, such as physical assistance, guidance, supervision or prompting.[3]
• 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. We get this information from your NDIS application.

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

We consider how you're involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day to day life.

Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.

1. The material before the Tribunal reveals that the Applicant was born in June 1982. She lives in a house she and husband occupied before they separated in 2016, which she shares with her two miniature dachshund dogs.
2. The Applicant was diagnosed with anorexia nervosa in 2001,[35] at which time she also acknowledged long-standing depression and anxiety issues. Due to the long-term and chronic nature and seriousness of the eating disorder, the Applicant also developed several complications. She was diagnosed in 2003 with hyperthyroidism.[36] The Applicant also developed osteoporosis, apparently as a result of her eating disorder, which has contributed to several fractures, the most recent in 2020 when she broke her left tibia. She developed autoimmune neutropenia, an abnormally low level of white blood cells which makes the Applicant susceptible to illness, viruses and infections: the cause was not clear,[37] but it seems to be accepted as another consequence of her eating disorder. The Applicant also has Raynaud's Syndrome in her hands, affecting circulation and resulting in weakness and pain in her hands and making them prone to infections. The Applicant walks with a limp due to her 2020 tibia fracture, which she says has not fully healed.
3. The Applicant had been employed in an administrative role but in March 2017 suffered a workplace injury, had difficulties in her workplace, and was made redundant. These triggered a significant downturn in the Applicant's health.[38] During 2017 and 2018, she received psychological assistance from Registered Psychologist Shelley Tipene.[39] The Applicant began studying floristry at TAFE in 2018, but suffered a fractured sacral vertebra and developed hyponatraemia, an acute low level of sodium in the blood. In 2018, the Applicant was admitted to hospital again due to malnutrition from the anorexia nervosa and she then spent about a month as an inpatient in the Alma Centre receiving psychological care. After she was discharged, the Applicant obtained a referral to The Swan Centre for Eating Disorder Treatment, but says she could not afford to attend.
4. The Applicant applied for the Disability Support Pension in August 2019; in 2021 the Tribunal in its decision XVYL and Secretary, Department of Social Services[40] determined that she satisfied the necessary requirements.
5. In her evidence at the hearing,[41] the Applicant explained that because of her weakness from osteoporosis, she falls and stumbles: she has 'no sense of stability footing-wise' and trips easily. Falls potentially result in breaks because her bones are so brittle. Her broken tibia had not healed completely, and she had been on a waiting list to see an osteoporosis specialist for over 12 months. She was taking Celebrex and Panadol every day to manage pain and inflammation resulting from osteoporosis. This upsets her, as she used to run marathons.[42]
6. The Applicant said osteoporosis also affects strength in her hands and she needed her father's 'support'. Her Raynaud's Syndrome means that she cannot use her (dominant) right hand. Her stability is also affected. She struggles to do shopping if bags are heavy. The Applicant estimated that she could lift up to 10-15 kg (or about four 1 litre soda bottles), but she is then 'wobbling'.[43]
7. The Applicant advised that she has experienced anxiety for a 'lengthy period'.[44] She experiences anxiety and panic before leaving her house and only leaves home for shopping, medical appointments, and the like. The Applicant feels stressed a week in advance of having to leave her house and experiences sleeplessness and anxiety before attending appointments. She described her experience as 'panic attacks', where her blood pressure drops and 'it would just become chaos in my mind', a fear of the unknown which inhibits what she does.[45]
8. The Applicant was also anxious about the inability of her autoimmune system to fight infections.[46] She said that she has been warned to limit social interactions in the community to prevent getting sick, which could result in her going to hospital. She goes shopping wearing gloves and a mask.[47]
9. As to shopping, the Applicant's excursions are 'less than an hour'. She shops for two weeks-worth of supplies to limit her anxiety and stress. The Applicant shops at around 5-6 o'clock, times when it is likely that there are to be fewer people. She always goes to same grocery store, about a 1.5 km car drive away.[48] The Applicant uses the self-serve checkout to avoid interacting with people and the risk of exposure to communicable diseases, such as colds. As for social interaction, she may smile at people but could go shopping and 'easily' come home without having talked to anyone.[49] The Applicant would be able to ask store staff for help if she needed it, and would use a normal, staffed, check-out if necessary.[50] Her pharmacy is part of the same shopping complex, so she has her scripts filled when shopping.[51]
10. As to friendships and social contact, the Applicant said that she was in contact with two friends at the time of the hearing, both of whom lived in Melbourne; one was a former school friend and the other a family friend who used to help her in her garden before moving interstate. She had last spoken to them three months before. The Applicant hadn't seen one of them in person for three years, and the other for a year-and-a-half.[52] The friend who moved to Melbourne used to come over to her home about five times a year.[53] Their 'connection' is the same: she doesn't see him now only because he moved away. The Applicant said she did not have any friends in Perth now and was not currently visiting friends. She was not in contact with friends over social media anymore. She would have contact with her friends in Melbourne by phone call once every three months or so. She no longer has social outings to parks or local cafes because she has no one to do it with and cannot afford it - 'there's no point going by myself'. If her Melbourne friend came to visit they would probably go out to a coffee shop, but that hadn't happened for over 12 months. She has lost contact with other friends since 2021, them having 'shifted on' for reasons like their being occupied with their work and children, and the friendships have 'ceased'.[54]
11. In 2018 the Applicant studied floristry at the South Metropolitan TAFE (Technical and Further Education) in Murdoch. She used to drive to lessons, but withdrew from the course because she wasn't coping, and fell ill and went to Fiona Stanley Hospital. When she returned to studies, with a broken leg in a cast, her mother would travel 1½ hours to pick her up and take her to TAFE. The Applicant's mother drove her every week for six months to enable her to complete the course.[55] The Applicant didn't socialize when attending college: she just went, studied, and left. Even at lunchtime the Applicant did things 'solo'.[56] The Applicant said that she does not now have the stamina to study.[57] She has never put that study into practice as she cannot use her hands.[58]
12. The Applicant has a vegetarian diet.[59] This is 'very repetitive' because the anxiety levels of those suffering disordered eating are raised if diet is changed. The Applicant only eats at home. She does not eat out: she had last eaten at a restaurant some six years before.[60]
13. As to activities, the Applicant can no longer take her dogs for walks. She doesn't have the strength to manage her two dogs and is at risk of falling - she has fallen over when walking them - and her leg hurts and she comes back in pain. The last time she walked her dogs was about a year-and-a-half before the hearing. She had tried since but experienced too much pain.[61] The Applicant no longer walks to the park, as she once fainted and fell on the road.[62]
14. The Applicant's mother and father live some eight hours' drive away in Esperance. Before they moved away, the Applicant's mother and father would visit once a week and help her do simple tasks around the house. The Applicant's mother checks in on her every day and 'stresses' about her. If anything were to happen to her at home no one would know, so the Applicant reassures her mother that she is 'still alive'. The Applicant tries to contact her mother every day or two.[63] Her mother is the 'only person' the Applicant speaks to, and so gets lonely. When they'd call each other, they would speak for about 15-20 minutes.[64]
15. All the Applicant's family live in the country. She has never driven down to visit her parents in Esperance and, in any case, can't afford the fuel.[65] Now that they had moved away, she would see them every one or two months, four times a year. She would see her sister and brother about once a year; she had not seen her sister for over 12 months. She hadn't spoken to her sister by telephone for over three months and speaks to her brother about two to three times a year.[66]
16. The Applicant depends on her Disability Support Pension. She manages her own finances and makes her own decisions, but gets 'clarification' from her mother 'whether it's the right decision'. The Applicant always liaises with her mother about 'big things', like anything to do with her home, insurance, and big spending to do with house maintenance or repairs.[67] The Applicant would ask her mother about which insurance policies to take up, and for advice about how to manage financially. Her mother might make suggestions which the Applicant would explore, but the Applicant would make the decision and make any necessary arrangements. As to her mortgage, her mother would advise her what is best. The Applicant said that if she did not have her mother to advise her, she would panic and maybe 'call the help support line'; if left without anyone to ask, she didn't know what she would do. The Applicant pays her own bills, online. She does not require assistance with more day-to-day financial decisions.[68]
17. The Applicant manages her own medical appointments, with appointments with her General Medical Practitioner Dr Jing Lin arranged in advance after each consultation.[69]
18. The Applicant was asked to describe a "good" day and a "bad" day. The Applicant said that a good day would be if she were to remain at home and not have the anxiety associated with having to do anything out of the house;[70] being home, outside in the garden with her two dogs, and doing simple chores, would be a 'good day'.[71] A 'bad' day was anxiety leading up to any medical appointment and getting there.[72] However, she has never failed to attend an appointment.[73]
19. The Applicant's Raynaud's Syndrome affects strength in her right hand and it suffers 'continuous' infections. Her hand sheds its fingernails - four nails in one finger a year. She has 'no circulation' and her hands go white to a point where they don't have any sense of touch and picking things up. The Applicant has to 'continuously wear gloves' to do anything, including eating.[74] The Applicant studied floristry but now cannot do hand-related things, including sewing, and typing on her computer can be a challenge as she has no sense of the key being touched. The Applicant can't open bottles. She cannot use secateurs and similar tools, or do pruning, or dig holes in the garden.[75] Her gardening is limited to spending about a half-hour watering plants by hand, as she cannot afford reticulation.[76] The Applicant said that she cannot climb ladders to clean gutters and can't afford to get someone to do it.[77]
20. The Applicant can make meals, but it takes her 'longer'.[78]
21. The prospect that the Applicant might benefit from occupational therapy and psychology was put to her. She hadn't discussed the possible referral with Dr Lin because Medicare can only provide one service under her chronic disease management plan, and she has given priority to physiotherapy for her leg.[79]
22. The Applicant had been informed about the Centre for Clinical Interventions as an avenue for supports. She enquired about it in 2019 when she was discharged by Fremantle Hospital Mental Health.[80] The Applicant told the Tribunal that took 40 minutes to get there and would cause her anxiety to do so. She said that there was a waiting list of 12 months. She never entered herself onto a waiting list.[81]
23. Otherwise, the Applicant said that she had explored the possibilities of what was available on a Disability Support Pension, but 'everything is orientated with NDIS applicants and participants'. She was struggling financially and, notwithstanding research, doesn't 'know where to go'.[82]

1. Mrs XVYL testified that she and her husband, the Applicant's father, moved to Esperance on 12 December 2022. She tries to come to Perth every six weeks and to stay for a week, to meet and help the Applicant and her own, ageing, father. When in Perth, Mrs XVYL and the Applicant's father would help the Applicant with 'anything that needed maintenance in the house, the garden, any financial support, and just anything that arose at the time'.[83]
2. Before moving to Esperance, and unless they were ill, Mrs XVYL and her husband were seeing the Applicant every second day.[84] When visiting they would spend the afternoon and go down to the river or walk in the park or go to her house. The sort and level of assistance that she and her husband would provide when they now visit Perth is much the same as before, but less often and is concentrated into one visit over a few days.[85]
3. There was an intense period of support necessary when the Applicant was attending TAFE, before and after she had a broken leg.[86] When the Applicant was on crutches[87] Mrs XVYL would take washing home and return it after it was done.[88] The Applicant still had a bad limp after dispensing with crutches and was 'far from' mobile, so her mother would hang out washing for her.[89] The Applicant could not do garden maintenance even after coming off crutches, as she was limping and unstable.
4. Mrs XVYL speaks to the Applicant by telephone every day and sometimes twice a day, for 'moral support'. She estimated that they would talk for an average of 40-45 minutes.[90]
5. Mrs XVYL comes from a financial background so the Applicant 'likes to bounce everything off me, just to make sure that she's making the right decision'.[91] Often if she receives a document the Applicant will send it to her mother to read and they would discuss it. Mrs XVYL would guide the Applicant and try to let her make her own decisions. The financial and other advice that the Applicant would seek from her mother was more in the way of asking for guidance and a second opinion, rather than from 'helplessness'.[92] As to 'financial support', they are not paying her bills for her 'at this stage'.[93]

1. Dr Lin had been managing the Applicant since 2017.[94] She would tend to see the Applicant as frequently as monthly or two-monthly, but more recently at a three-monthly clinical review. She had most recently seen her on 25 July 2023.[95] Dr Lin had referred the Applicant to various specialists over time: clinical psychologists, a haematologist, the Bentley Mental Health psychiatric team, an endocrinologist, a dietician, a general physician for advanced eating disorders, a podiatrist, a dermatology clinic, and a physiotherapist.[96] She could not recall if she referred the Applicant to the Centre for Clinical Interventions,[97] but explained that the referral process was quite long - a month at the time of the hearing - and she would very often be told not to bother referring someone but to care for a patient herself or send the patient to a private eating disorder clinic. Dr Lin thought that the waitlist would be three to six months.[98]
2. The Applicant was seeing Dr Spatariu, a general medicine specialist who understands eating disorders.[99] Dr Lin had also referred the Applicant to psychiatrists, and she had since been discharged back into Dr Lin's care.[100]
3. Dr Lin explained that the Applicant had a number of medical conditions managed under the chronic diseases care plan model, through which she had accessed occupational therapists, physiotherapists and a dietician.[101] However, there are only five sessions in a calendar year, which is too few and, as they are often not bulk-billed, there is an out-of-pocket cost which can be difficult to afford. Dr Lin could not be certain that the management of the Applicant's mental health disorder would be possible under a chronic disease care plan.[102] The last chronic disease management plan was in December 2022 and the focus was on osteoporotic fractures and osteoporosis rehabilitation. Dr Lin had not yet received a report from the podiatrist.[103]
4. Dr Lin contributed to the Applicant's NDIS Access Request form, which she signed on 9 April 2020.[104] She detailed the Applicant's primary disability as 'Advanced Eating Disorder', and no secondary disabilities.[105] With respect to the activities of Mobility/motor skills, Communication, Learning, Self-care and Self-management, Dr Lin, when asked 'Does the person require assistance', in each instance ticked the option 'No, does not need assistance'.[106] With respect to the activity of Social interaction, Dr Lin, in answer to the question 'Does the person require assistance to interact socially because of their disability', responded 'Yes ... Requires assistance with social outings, coping with stress and emotions'.[107] Her observations respecting the Applicant's capacity to undertake specific activities will be dealt with below.

1. Dr Cheng of The Swan Centre for Eating Disorder Treatment prepared a report at the request of the Respondent, following an assessment of the Applicant in his rooms, on 1 October 2021.[108] He was not called to give evidence.
2. Dr Cheng outlined the history Applicant reported to him and the treatment she had received. He noted that the Applicant had last worked in 2017, for about 18 months, as an administrative assistant in a school early childhood learning centre before being made redundant. She had finished some studies but had not been seeking employment, although had some plans to work from home. She had been medically cleared to work.[109]
3. Her admission to hospital was for eating disorder, depression and anxiety, which occurred after her divorce and being made redundant from work. Before that, her eating disorder had been stable,[110] and it had remained 'relatively' stable since she was discharged in 2018.[111]
4. Dr Cheng noted that the Applicant denied being depressed, saying that her depression was under control, although she felt sad and teary 'all the time'.[112] The Applicant told Dr Cheng that she had her eating disorder under control and could see the triggers for a relapse;[113] that she had been 'really good with eating lately' and her weight was stable,[114] and that she didn't get anxiety before meals.[115] The Applicant told him that she did not eat out with people as she had 'no control of what she was presented with';[116] and that she would have panic attacks when going out and would get anxious in shopping centres.[117] He reported that the Applicant:

... did not particularly appear to want to have assistance in socialization. She stated at the present time she was constantly trying to catch up with her homelife gardening and housework, and it was taking up much of her energy and effort.[118]

5. Dr Cheng was of the opinion that the Applicant had moderate to severe chronic anorexia nervosa 'restricting type'.[119] He noted that she was not receiving very much treatment and appeared to have turned down assistance in the past, with much of her current compliance and behaviour calculated to avoid dropping under the weight that may result in further admission to hospital. Perusing the other medical reports in evidence, he noted that on a number of occasions the Applicant had refused additional treatment and support, including psychological treatment, involvement by public mental health services, and medications to address her osteoporosis and hormone imbalance. He was of the impression that:[120]

... she was superficially cooperative with treatment from her GP and would go to appointments as directed but it does not appear that she has followed or engaged with the treatment advice provided by those treating practitioners. I am of the opinion that this is primarily to avoid the possibility of her General Practitioner referring her back to specialist mental health services for treatment.

1. From her observations, and discussions with the Applicant, Ms Cruttenden recorded that the Applicant presented with the following:[121]

(a) 'Anxiety - triggers identified as food/mealtimes, social interactions, appointments and time management'; > > (b) 'Depression and low mood'; > > (c) 'Reduced mobility - I observed a left-sided limp and wasting of muscle in lower left leg due to her left tibial fracture which is reportedly not fully healed'; > > (d) 'Anorexia Nervosa - chronic disordered eating'; > > (e) 'Osteoporotic bones with unhealed left tibial fractures and muscle wasting'; > > (f) 'Reduced strength and endurance'; > > (g) 'Constant pain in her joints - she described this as an aching pain and rated it 10/10 at its worst and 8-9/10 on average'; > > (h) 'Disrupted sleep cycle - goes to bed late and wakes late'; > > (i) 'Daily fatigue and low energy with 3-4 days per week with increased fatigue'; > > (j) 'Low blood pressure causing fainting (4 x episodes reported this year)'; > > (k) 'Pelvic floor insufficiency and urge incontinence'; and > > (l) 'Raynaud's Syndrome in hands - reduced sensation in fingers and bacterial infections in hands (I observed skin around fingers to be red and cracked and the nails appeared to be lifting off on several fingers) and associated reduced hand function and requires regular use of gloves'.

2. Ms Cruttenden assessed the Applicant and reported on the Applicant's functionality in respect of all the activities relevant to section 24(1)(c) of the NDIS Act.
3. Ms Cruttenen concluded as follows:[122]

It was evident from my assessment [the Applicant] was managing to attend to her basic self-care and self-management tasks during each day and each week in order to maintain a standard of living that is acceptable to her. As a result of her pain, fatigue and mental health issues, it is evident [the Applicant] is able to achieve very little else during her week and has significant lack of engagement in vocational, leisure and social activities. > > It is my assessment that [the Applicant] does not have significant functional difficulty across communication and learning domains. > > [The Applicant] has some restriction with self-care and mobility with her restrictions relating to the pain and fatigue associated with her listed physical conditions. Despite the restrictions, [the Applicant] is independent with all self-care and mobility tasks with the use of commonly used items and minor task adaptations. Increased time taken to complete these tasks is acknowledged. The need for assistance with these tasks is not indicated based on [the Applicant's] current functional performance. > > It is my assessment [the Applicant] has substantially reduced functional ability in the social interaction domain which is related predominately to her anxiety and depression symptoms, although her reduced physical capacity, pain and fatigue also contribute. She has almost no engagement in age appropriate vocational, leisure and social activities and presented as avoidant of this type of engagement. Assistance to address this reduced functional ability is indicated. > > [The Applicant] presented with some significant restriction with self-management tasks specifically shopping, cleaning and gardening. Completion of tasks result in a significant increase in pain and fatigue symptoms and restrict [the Applicant's] engagement in other productive and meaningful activity. Restriction in these tasks is related predominately to [the Applicant's] symptoms associated with her physical conditions, specifically joint pain, reduced strength and endurance and fatigue. Assistance with self-management tasks is indicated for the purpose of pain and fatigue management and increased opportunity to engage in other activities.

4. I will deal more fully with Ms Cruttenden's observations and conclusions regarding the Applicant's capacity to function below, under the relevant activities.

Section 24(1)(a): Disability attributable to intellectual, cognitive, neurological, sensory or physical impairment or impairment attributable to psychiatric condition

1. The Respondent accepted at its internal review that the Applicant has 'disabilities attributable to physical impairments and psychiatric conditions, which are based on the diagnoses of autoimmune neutropenia, osteoporosis, Cluster C personality trait,[123] anorexia nervosa, depression and generalized anxiety disorder'. It was not satisfied that the criteria had been met for the Applicant's diagnosed hypothyroidism, hyponatremia, and irritable bowel syndrome.[124]
2. This assessment did not appear to be in dispute.

1. At the commencement of the hearing, the Respondent conceded the permanence or likely permanence of the Applicant's disabilities.[125]

Section 24(1)(c): Substantially reduced functional capacity to undertake communication, social interaction, learning, mobility, self-care, self-management.

1. The Respondent accepts that the Applicant has several restrictions resulting from her impairments but contends that they do not amount to a substantially reduced functional capacity for the purposes of section 24(1)(c). In substance, the Respondent submits that although from time-to-time she may require extra time, pacing strategies, or the use of 'commonly used' items, the Applicant is able to participate in all six activities specified by section 24(1)(c).
2. Rule 5.8 prescribes circumstances in which a person may meet the disability requirement of having a substantially reduced functional capacity to undertake one or more of the activities prescribed in section 24(1)(c).[126] Rule 5.8 is a deeming provision.[127] If a person's circumstances are caught by its terms, the person must be taken to have a substantially reduced functional capacity for the purposes of section 24(1)(c).
3. Rule 5.8(a) deems that an impairment results in a substantially reduced functional capacity if the person is unable to participate 'effectively or completely' in the activity without assistive technology, non-commonly used equipment, or home modifications.[128] In this case it is not suggested that the Applicant requires, and the evidence does not support the Applicant requiring, assistive technology or equipment or home modifications to participate in any relevant activity. In the circumstances, rule 5.8(c) does not arise for consideration.
4. Rule 5.8(b) deems that a person has a substantially reduced functional capacity to undertake a relevant activity if 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 action required to undertake or participate in the activity'.[129]
5. However, a person will not necessarily be deemed to have substantially reduced functional capacity for the purposes of section 24(1)(c) because one task is unable to be completed without (say) assistive technology or it usually requires assistance from others. The decision-maker must assess the degree to which the person can participate in the activity.[130] Further, '[u]ndertaking a task ... differently to others will not necessarily mean a person cannot participate effectively or completely in an activity'.[131]
6. The Applying Guideline assists in the approach to be taken to making this assessment.

1. The Applying Guideline describes 'Communicating' as:

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

2. In the NDIS Access Request form, Dr Lin thought that the Applicant did not need assistance with respect to communication. In his evidence to the Tribunal, Dr Lin maintained that the Applicant did not require assistance to communicate effectively.[132]
3. Dr Cheng did not detect the Applicant having an impairment or disability with respect to communication.[133] Ms Cruttenden likewise considered that the Applicant could communicate effectively.[134]
4. The Applicant's functioning has not been said to be deficient in this respect and, on the evidence available, I am satisfied that there is no substantial reduction in her functional capacity in this regard.

1. The Applying Guideline describes 'Socialising' as:

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

2. The Applying Guideline's focus is on personal skills necessary for social interaction, rather than the location or frequency of opportunities to practice such skills;[135] whether a person has the skills to engage in social interaction and how they behave when they do, rather than their opportunities for social interaction or barriers which may make social interaction more difficult.[136]
3. As to social interaction, Dr Lin considered that 'this is the part that she probably needs most assistance. She's very socially isolated, mostly remains in her home by herself, and I think that's probably where NDIS can provide her with support for social interaction'.[137] With respect to 'social outings, coping with stress and emotions', Dr Lin advised that she had referred the Applicant to a psychologist under the GP mental health plan but there were only 10 sessions per year and at a significant financial cost which the Applicant had not been able to afford.[138] Dr Lin considered that:

... I think if she had a support worker to actually take her out on a regular basis, and to motivate her to engage in a social setting, maybe go out for coffee, lunches, so that she can get out of the house a little bit more and start to communicate with people outside of her immediate family and hopefully, you know, motivate or support her in occupational settings, that will be very helpful for the applicant.[139]

And what about her interactions with you at appointments? Is XVYL, sort of, interacting appropriately during her appointments with you? - - - Absolutely, yes. XVYL is a very polite, quiet spoken, compliant patient. She's usually very appropriate with her language and mannerisms, so there is really no abhorrent behaviour from where I have had interactions with her.[140]

5. Dr Lin considered that under the NDIS the Applicant might receive core support funding for social workers to help the Applicant with 'social community participation' and an 'occupational therapist functional assessment and management plan to help her with her social community development and daily function capacity improvement'.[141] She did not know if the NDIS provided any occupational retraining assistance, but it too would be helpful for the Applicant, to reengage with employment. The Tribunal asked, as to these supports:[142]

But if provided, do you foresee that there would be some improvement in her that would obviate the need for any of these supports in due course or is this going to be a condition that she's going to need support for, for the rest of her life? - - - I think this will be a really difficult one, Deputy President, as I guess that I'm not quite sure how many participants of eating disorder nature are under the NDIA Scheme, but this is something that they have not been able to utilise or have access to in the past. The Disability Care [sic Support] Pension, and the chronic disease [management plan], and the mental health plan does fall short to cater for patients with this significant condition with a multitude of physical and mental health disabilities or disadvantages. So I can't say that it's going to be perfectly successful, but these are the things that I suspect will be helpful in her - in this management of this patient.

6. Counsel for the Applicant asked:[143]

You identified a number of supports in response to the Deputy President's question. What impact, if any, would specialist psychological or psychiatric treatment - when I say specialist, specialist eating disorder psychological or psychiatric treatment - have on the applicant? - - - Yes, if the applicant is able to access an eating disorder specific psychologist at a cost that is affordable to her for a decent period of duration to help her recovery, that will be very, very desirable and I would wish that for all of my patients, young and old, with the anorexia nervosa diagnosis if I was to have my way.

7. Dr Cheng, in his report, advised that at the time of his assessment of her, the Applicant indicated that she had a restricted range of social interactions, and did not describe social contact with friends apart from some telephone contact. Her contact with her family was predominantly with her parents and to a lesser extent her sister. The Applicant indicated that:[144]

This was because of her feelings of fatigue, difficulties in leaving the house because of anxiety symptoms, her medical condition such as her leg pain and also because of her eating disorder as she stated that she was not able to eat food prepared by other people. > > As a result she remained quite isolitary [sic solitary].

I am not of the opinion that she would require assistance with regards to social outings. I am not of the opinion that this is likely to increase her level of ability to socialise with others. I am of the opinion that psychological treatment and [sic aimed?] at addressing her anxiety symptoms and avoidance behaviour is likely to be beneficial in terms of assisting her increase her social activities. > > I would note that treatment of her eating disorder and nutrition status is also likely to be required given her current feelings of fatigue.

9. Ms Cruttenden reported the Applicant's close relationship with her parents, usually seeing them (at the time) every two weeks; seeing her siblings who lived in the country only a couple of times a year; relying on her mother for decision-making and 'financial management', to the extent of calling her mother up to five times a day when she cannot make a decision about something; and feeling anxious before all family interactions. The Applicant reported having two friends living interstate, who she would occasionally speak to by telephone. She also had a friend in Inglewood, who she did not catch up with regularly in person as the latter was busy with her children and working. The Applicant reported anxiety and avoiding social interactions, the anxiety before and during the activity removing enjoyment and fun. She limited her community interaction to a weekly or fortnightly shopping trip or medical appointments. Being in the community increased her anxiety. The Applicant walked around the block with her dogs every second or third day.[146]
10. In her evidence Ms Cruttenden opined that the Applicant:

(a) based on the information that the Applicant provided at the assessment, does not position herself to make new friends and would require support from other people do so,[147] and avoids social interaction due to anxiety;[148] > > (b) can maintain friendships at a geographical distance, but doesn't see friends in person;[149] and > > (c) can interact with others in the community in an appropriate way and doesn't require any support from others to behave appropriately in social settings.[150]

11. As to the source of support to make new social contacts, Ms Cruttenden considered that it could be provided:

(a) by an occupational therapist or clinical psychologist under a mental health plan within the general health system, although there is a limit to the number of such sessions and she was not sure that they would be sufficient to meet the Applicant's needs;[151] and > > (b) potentially under a chronic disease management plan, if it offered psychology and occupational therapy services, although it may be limited by the finite nature of those services.[152]

12. Nevertheless, and despite the limited nature and number of sessions through the general health system, if the Applicant was to engage with those types of services 'there would still be a chance that there would be some benefit to goal setting around social interaction from her work with those therapists'.[153]
13. In the course of being cross-examined, Ms Cruttenden agreed that there was a distinction between someone's ability to behave in an appropriate way, and their ability to cope with social interactions or their subjective experience with social interactions - they may outwardly behave appropriately, but be finding the situation difficult, or uncomfortable, or upsetting. She agreed that the Applicant with her anxiety, 'mobility issues', fatigue and pain, may find it more difficult to cope with social situations.[154]
14. During closing submissions, the Applicant referred to two previous Tribunal decisions regarding social interaction, Kilgallin and National Disability Insurance Agency[155] and Baranowski and National Disability Insurance Agency.[156]
15. In the former, the Tribunal accepted that Mr Kilgallin's level of psychosocial functioning was affected by his obsessive-compulsive disorder, major depressive disorder, autistic spectrum disorder, and mixed personality disorder with cluster A[157] and C-type personalities. He lacked motivation to undertake certain physical exercises and tasks. He considered that it would be of benefit to him to have someone prompt and encourage him to do so. His impairment had the effect of mounting barriers to his participation in activities which would involve social interaction, including through a lack of motivation and a lack of desire to leave his home from time-to-time. The Tribunal accepted that those barriers affected Mr Kilgallin adversely in his ability to undertake activities and reduced the frequency with which he undertakes them. But the Tribunal was not convinced on the evidence available to it that the level of incapacity experienced by Mr Kilgallin necessarily equated to a substantial reduction in his psychosocial capacity or functioning in those areas.[158]
16. The Tribunal also expressed the view that social interaction in section 24(1)(c) did not mean social interaction with the whole of the community, rather than social interaction with elements or sections of the community. Mr Kilgallin gave evidence he tended to socialise with 'special people' like him: nevertheless, in the Tribunal's view, interaction on a more-or-less regular basis with people he felt comfortable with amounted to social interaction, and his skills necessary for social interaction were not significantly affected.[159]
17. In Baranowski, the applicant had a disability attributable to complex PTSD, borderline personality disorder, depression, and anxiety. The evidence was that she was able to make and keep friends but that her capacity to interact with the community independently was significantly impaired due to her anxiety. Even on days that she was well, she was generally so affected by social anxiety that her treating doctor described her as 'crippled' by it. Ms Baranowski was 'unable' to travel outside her local area due to anxiety, and anxiety from dealing with less familiar surroundings and people became intrusive. She would need her children in the car with her when driving outside her immediate local area. She would experience, albeit rare, dissociative episodes where she had no awareness of her actions or surroundings and had extreme difficulty managing her symptoms when in the presence of strangers. Unfamiliar places and interaction with unfamiliar people could cause panic attacks, dissociation, and complete inability to function.[160]
18. I accept that a person's capacity to socially interact is not necessarily limited to considering their ability to engage satisfactorily with only a very small, intimate, and exclusive group of people: I do not think that was what Kilgallin was asserting. But Baranowski is an extreme case where social interaction would lead to loss of control and prevent engagement; it does not reflect the situation in which this Applicant finds herself.
19. All the available evidence is that the Applicant presents well, is personable, and is not incapable of making and retaining friendships. She has chosen for a variety of reasons to do with her fears of physical fragility, vulnerability to disease and associated anxieties, to withdraw from social contact, but is capable of such contact and capable of behaving appropriately when it occurs. The Applicant may experience anxiety and what she describes as 'panic attacks' in anticipation of social contact, and be disinclined to leave her home to avoid it, but she can do so, and does, if circumstances call for it: by way of example, she can and does attend medical appointments, even with unfamiliar practitioners; would be prepared to attend a cafe to meet a friend; would walk her dogs if physically able; attends the local shopping centre and engages (albeit reluctantly) with staff and strangers; and maintains long-distance friendships. The Applicant may not relish social contact, and may have difficulty enduring it, but is able to engage in it. Her refusal to go to restaurants seems to be related more to her concern about 'control' over the food she consumes, and eating in the presence of others, than aversion to being in public. To the extent that the Applicant may benefit from support to make new friends, as suggested by Ms Cruttenden, it is only one facet of social interaction. The sort of encouragement to go 'out' that Dr Lin suggests could be supplied by a support worker is what one might generally expect from family and friends.
20. I accept that the Applicant's capacity for social interaction is reduced, but not substantially reduced.

1. The Applying Guideline describes 'Learning' as:

how you learn, understand and remember new things, and practise and use new skills.

2. The Applying Guideline focusses on a person's cognitive ability to absorb and apply new skills, not higher order thinking or skills, and not necessarily the ability to apply them. An inability to utilise a skill does not connote an inability to learn it.[161]
3. Dr Lin, when completing her portion of the NDIS Access Request form, in April 2020 considered that the Applicant did not require assistance learning. In her evidence to the Tribunal, Dr Lin advised that she had not detected any learning disabilities; rather, from an occupational point of view, the Applicant needed assistance to find the motivation and persevere with the tasks required to achieve a learning goal. When asked whether the Applicant 'has the capacity to understand and remember information, and a learn a new skill if she put her mind to it?', Dr Lin responded 'I do believe so, yes'.[162]
4. Dr Cheng in his report considered that the Applicant was 'likely to have mild to moderate impairment in her ability to learn and retain new information ... as a result of her chronic malnutrition'. However, he was 'of the opinion that she was able to learn new things'. He went on to say that the Applicant:[163]

... did not current[ly] have supports in this area and I am not of the opinion that any particular support is likely to be beneficial. > > Nutritional restoration is likely to be beneficial to her ability to learn and retain information. There is significant amount of evidence [to] support an improvement in cognitive [sic] following weight restoration in patients with Anorexia Nervosa.

5. Ms Cruttenden reported the Applicant advising that she never forgets appointments as she 'obsesses' about them for at least a week beforehand; remembers to take medications straight from the box; has some difficulty recalling what she has done in past weeks as 'all the weeks amalgamate together'; and says she does not retain 'key information' such as when her parents returned from holidays. The Applicant kept a diary to help organize herself. The Applicant considered that she had poor decision-making and problem-solving skills associated with her anxiety, tending to ring her mother to ask assistance with decisions and assistance managing her finances.[164] However, the Applicant was able to maintain her attention throughout the two-hour assessment. The Applicant conducts research on the internet on floristry, and into what may be available to her through her Disability Support Pension.
6. The evidence also reveals that the Applicant is aware of her conditions and what she must do or avoid doing to maintain her health.
7. The Applicant did not argue that her functioning was deficient in respect to learning and I am satisfied that there is no substantial reduction in her functional capacity in this regard.

1. The Applying Guideline describes 'Mobility, or moving around' as:

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

2. It was common ground between the parties that tasks such as cleaning, shopping, and gardening, and the ability to undertake other like household tasks involving the use of limbs, were more properly within the ambit of 'mobility' rather than 'self-management'.[165]
3. As mentioned, when completing her portion of the Applicant's NDIS Access Request form on 9 April 2020[166] Dr Lin considered that the Applicant did not require assistance in respect of mobility. In the course of her evidence before the Tribunal, Dr Lin explained that, since then, the Applicant had suffered a significant leg fracture, from which she took a long time to recover and which affected her mobility, and was diagnosed with osteoporosis. However, Dr Lin considered that the Applicant was 'still not requiring any assistance with her mobility to a significant, severe form, like someone to get her out of bed ... I think she's physically able to get out of bed or chair, leaving the home and moving about in the community'.[167]
4. Dr Cheng reported the Applicant advising him that she walked with a limp and her leg would hurt when she walked. She still exercised and had a treadmill and would do a gentle walk at home and would be able to walk perhaps 2 kilometres. She had been told that because of her osteoporosis she should use a bicycle, and she did have and use a stationary bike. She could speak to her mother by telephone while riding it. After lunch she would go outside and work in the garden. She could not climb ladders to prune trees.[168]
5. Ms Cruttenden, when she attended on the Applicant for her assessment and report in September 2021, noted that the Applicant's home was clean and tidy and observed that the Applicant could:[169]

(a) walk independently and unaided throughout her home and backyard, albeit slowly and with a slight left-side limp due to reduced weight bearing through her left leg; > > (b) ascend and descend four steps on her spiral staircase using the rails for support; > > (c) complete bed, chair and toilet transfers without obvious difficulty or effort; > > (d) bend down to reach the ground by bending both knees into a squatting position, although the Applicant advised that she avoided bending at the waist due to previous sacral fractures and avoided kneeling on her left knee; > > (e) stand and balance on her right leg, but needed the support of furniture to balance on her left leg; > > (f) walk with her feet in a line for three steps before losing balance; and > > (g) turn in a circle without losing balance, and look over both shoulders.

6. The Applicant told Ms Cruttenden that she:[170]

(a) could walk in her home for about 10 minutes before needing a rest, and that she walked on her treadmill up to 30 minutes per day and rode a stationary bicycle, but could not run on the treadmill due to her leg fracture; > > (b) walked around the block with her dogs every second or third day, but was limited by joint pain; > > (c) had experienced six falls in the past year, and over the previous four years had three serious falls resulting in fractures and hospital attendances; > > (d) was independent driving her own, automatic transmission, vehicle, but did not trust her attention when driving long distances; > > (e) needed to do small amounts of cleaning on a regular basis, for about 15 minutes at a time, due to being limited by pain and fatigue; > > (f) could vacuum with a stick vacuum cleaner, and mop the floors once a month, but estimated that tasks would take her four times longer than they used to due to increased pain and fatigue; > > (g) could do her laundry and hang out washing, although it would take twice as long as she considered it should; > > (h) could change her bed linen although it increased her pain and fatigue; > > (i) did not have the strength to carry anything weighing over 3 kilograms, and could lift shopping bags into and out of a shopping trolley and her car one at a time; > > (j) would find shopping exhausting and cannot attend to other tasks the same day due to pain and fatigue after the trip; > > (k) would purchase non-grocery items online and have them delivered; > > (l) could prepared and cook her own meals; and > > (m) was able to water and tend to her many indoor and outdoor pot plants, but was unable to tend to larger garden beds and perform tasks such as pruning, weeding and cleaning gutters.

7. Ms Cruttenden attributed the Applicant's limited outdoor activity to her anxiety, and that her 'leg discrepancy', low blood pressure, pain and fatigue contributed to an increased risk of falls, with her osteoporosis increasing the chance of serious injury from a fall.[171]
8. As already noted, Ms Cruttenden concluded that although the Applicant had some restrictions in self-care and mobility, related to pain and fatigue, she was independent in performing self-care and mobility tasks and a need for assistance was not indicated.[172]
9. The Applicant advised that her strength had decreased since seeing Ms Cruttenden in 2021.[173] While the Applicant told the Tribunal that she no longer walked her dogs, feeling she no longer had the strength to do so and being fearful of a fall and injury, there was no evidence whether she still used her stationary bicycle or the treadmill for exercise. Ms Cruttenden's other observations of the Applicant's functional capacity were not challenged.
10. On balance, I consider that Ms Cruttenden's assessment remains sound. I accept that the Applicant's physical impairments limit her ability to perform certain tasks[174] and limit her mobility. However, the Applicant can walk about her house and in public without the assistance of a single-point walking stick or other support; enter, drive, and alight from a motor vehicle; negotiate steps; carry shopping and other items of a reasonable weight; and perform domestic and self-care tasks.
11. I accept that her walking can give rise to pain and fatigue, and that some tasks are either beyond her abilities or require her to take additional caution and time, pacing strategies and, perhaps, the assistance of commonly used items, to perform them. I accept that the Applicant's functional capacity in respect of the activity of mobility has been reduced. However, I am not satisfied that it meets the threshold of substantial reduction.

1. The Applying Guideline describes 'Self-care' as:

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

2. When completing her portion of the Applicant's NDIS Access Request form,[175] Dr Lin considered that the Applicant did not require assistance in respect of self-care. When giving evidence to the Tribunal, Dr Lin acknowledged that she had not thought it a significant problem then, but some three years had passed since. She opined that the Applicant's need for assistance would need to be ascertained through a formal functional capacity assessment by a qualified occupational therapist.[176]
3. Dr Cheng's report recorded no deficiencies in the Applicant's ability to care for herself, other than her eating disorder. He considered that the Applicant appeared to be able to attend to her activities of daily living and self-care, and did not report receiving any assistance in that regard. He noted that her ability to eat had been impacted by her psychological condition, and she could benefit from a treatment program with support from a therapist.[177]
4. Following performing her assessment, Ms Cruttenden reported that the Applicant could shower, dress and groom independently. The Applicant complained of continence issues, which she managed as best she could with medications and continence aids. Her sleep routine was disrupted by her need to attend the toilet every several hours. The Applicant went to bed late and woke late, but was attempting to adjust her sleeping habits to more customary hours. Otherwise, she was independent with eating and drinking, although didn't like eating in the presence of others and experienced anxiety concerning her food intake. She was conscious of the need to keep her weight above 45 kg to avoid being hospitalized.[178]
5. Other than the issues with mobility traversed earlier, the Applicant made no mention of any reduction in her ability to care for herself.
6. There was no evidence of a significant 'gap' in the Applicant's ability to care for herself.[179] The evidence does not support there being any significant reduction in the Applicant's ability to self-care.

1. The Applying Guideline describes 'Self-management' as:

how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.

2. Dr Lin, at the time she completed the NDIS Access Request form, considered that the Applicant did not need assistance with respect to self-management. In her testimony to the Tribunal, Dr Lin advised that the Applicant was 'quite capable of managing her decisions, engaging advocacy to help her handle problems, and I don't think she's got a problem with self-management in that sense'. Based on her experience with the Applicant, she was confident that the Applicant had the capacity to make her own medical decisions 'and she has certainly been quite good at discussing her medical options, with informed consent, when we speak about various options of treatment with regards to medications and admissions, referrals. She certainly has the cognitive capacity to understands and made decisions for herself'.[180]
3. Dr Cheng noted that at the time of his assessment the Applicant was able to attend to her activities of daily living and household chores and that, although she reported struggling to complete household chores and gardening due to pain and fatigue,[181] Ms Cruttenden's Occupational Therapy report described the Applicant's house as being clean and tidy.[182] Dr Cheng was of the opinion that the Applicant was competent with regards to her ability to make decisions and manage her finances.[183]
4. I have already mentioned under 'Learning' Ms Cruttenden's observations regarding elements of the Applicant's organization of her life and capacity to manage her affairs.[184] Ms Cruttenden considered that, leaving aside the physical limitations, the Applicant has some restrictions in her cognitive capacity to self-manage, but she 'wouldn't say significant'.[185] She observed that the Applicant's home was clean and tidy. Otherwise, the Applicant had her mother help manage her finances over the past few years and her mother had access to the Applicant's online banking to pay bills.
5. In her evidence, Ms Cruttenden was asked about her assessment of what was described as the Applicant's 'self-management' tasks, specifically shopping, cleaning and gardening.[186] Leaving aside for the moment the question of the blurred distinction between self-management and mobility, Ms Cruttenen concluded as follows:[187]

It was evident from my assessment [the Applicant] was managing to attend to her basic self-care and self-management tasks during each day and each week in order to maintain a standard of living that is acceptable to her. > > ... > > [The Applicant] presented with some significant restriction with self-management tasks specifically shopping, cleaning and gardening.

6. More materially, the Applicant's mother's evidence is to the effect that the Applicant would frequently seek Mrs XVYL's advice and guidance on financial and other matters. Her mother has a financial background, and so it would be natural for the Applicant to do so. I accept that the Applicant's psychosocial impairments, particularly her anxiety, may result in her seeking out advice, guidance, counsel and reassurance more often than others of her age and experience might. However, given her mother's financial background and willingness to help and provide guidance, that does not necessarily signify an incapacity or 'helplessness' on the Applicant's part, rather than her accepting the convenience and comfort of having a trusted and experienced family member taking a burden off her shoulders, including by giving her mother access to her accounts to pay bills.
7. The Applicant lives alone and can organise her life. She is aware of her limitations and has insight into when she could use help. She keeps a diary, is thrifty, maintains her medications, keeps appointments, knows what to shop for and plans her shopping (personally and online) to acquire groceries and other necessities, can plan and prepare meals, and is conscious of her need to avoid situations that may risk her health and safety: she can look after herself. Although the Applicant may have difficulty keeping up with housework, she is house-proud, aware of what needs to be done, and endeavors to achieve it. While her condition may inhibit her self-confidence and, in doing so, affect her decision-making, I am not satisfied that her capacity to self-manage her affairs is substantially reduced.

Section 24(1)(d): impairment affects capacity for social or economic participation

1. The Respondent conceded at the commencement of the hearing that the Applicant's impairments affect the Applicant's capacity for social or economic participation.[188]

Section 24(1)(e): likely to require support under the NDIS for lifetime

1. It is apparent that there are a number of avenues of clinical assistance, by way of dietary, occupational, and psychological therapy and counselling, that may assist the Applicant address her eating disorder and some of the comorbidities that stem from that.
2. The support a person is 'likely to require' referred to in section 24(1)(e) refers to the result of the impairment the subject of the application to gain access to the Scheme. The Tribunal is required to consider whether a prospective applicant is likely to require support from the NDIS or whether support needs are more appropriately met by other systems.
3. Alternative systems in this case are the general health and mental health systems.[189] Some have not been explored; some have been dismissed on the basis of waiting time, or limited sessions, or cost. However, there is evidence of suitable dedicated and focussed services and clinical interventions that can address the Applicant's needs outside the NDIS, and limited evidence of them not being viable alternatives.
4. Given my findings regarding the Applicant's capacities, I need not deal further with this issue, other than to say that on the evidence available to me I am not satisfied that the entry criteria provided by section 24(1)(e) is met.

Section 25(1)(a): Impairments that are, or are likely to be, permanent

1. The Respondent did not press its contentions that the Applicant did not have relevant impairments that were or were likely to be permanent, as required by section 25(1)(a).

**Section 25(1)(b): provision of early intervention supports is likely to benefit by reducing future needs for supports in relation to disability

Section 25(1)(c): provision of supports likely to benefit

Section 25(3): whether early intervention support more appropriately funded or provided other general systems of service delivery or support services**

1. Section 25(1)(b) requires me to be satisfied that providing the Applicant with early intervention supports is likely to benefit her by reducing her future needs for supports in relation to disability. Section 25(1)(c) requires me to be satisfied that those supports are likely to benefit her by mitigating or alleviating the impact of her impairment on her functional capacity, prevent the deterioration of such functional capacity, improve her functional capacity, or strengthen the sustainability of informal supports available to her. Section 25(3) requires me to determine whether early intervention support is more appropriately funded or provided through other general systems of service delivery or support services.
2. The Respondent submits that the Applicant's eating disorder is long-standing and stable, and that there is insufficient evidence:[190]

(a) her impairments are at a sufficiently early stage of their trajectory; and > > (b) that provision of supports contended by the Applicant are early intervention in nature or would reduce her future support needs.

Furthermore, the Respondent contends that:

(c) there are other systems of service delivery and support services that are more appropriate to fund the supports required by the Applicant.

1. The Tribunal was referred to its decision in Puster and National Disability Insurance Agency,[191] which itself referred to earlier Tribunal decisions and, inter alia, applied the Tribunal's reasoning in James and National Disability Insurance Agency.[192]
2. In James the Tribunal stated, in respect of the purpose and intent of the early intervention requirements of section 25, that:

The objective of early intervention support is expressed to be to 'lower the costs and impacts' associated with the disability for individuals and the wider community over the long term. Accordingly, the early intervention requirements look at the likely trajectory and impact of a person's impairment over time and the potential benefits for early intervention on the impact of the impairment on the person's functional capacity .[193]

3. It was an approach adopted in Puster,[194] and with which I respectfully agree. It does not necessarily require an assessment in close temporal proximity to a diagnosis, but it does require an assessment at an early stage of an impairment's trajectory.[195]
4. The Applicant contends that if specialist psychological treatment is not provided, the Applicant's disability will not improve, and refers to Dr Cheng's assessment that:[196]

Without treatment, XVYL [is] likely to remain significantly incapacitated. Her current symptoms (fatigue, difficulties in concentration) are likely to preclude her returning back to work. She is also vulnerable to significant further medical complications as a result of her eating disorder. She's likely to significantly reduce her overall lifespan.

5. However, Dr Cheng's full assessment, leading up to those observations, was:

At the time of the assessment, [the Applicant] not appear to be participating in significant treatment for her psychological condition. She was prescribed an antidepressant medication and continued to receive followup from her General Practitioner. > > From the documentation enclosed, it does appear that her General Practitioner has had concerns about the adequacy of the treatment both with regards to her psychological condition and also her various medical conditions. With regards to her medical conditions, it does appear that she has been seen in public hospital outpatients however it does not appear that she has accepted any particular intervention and the consultations appear to have been reviews of her condition. > > With regards to treatment I am of the opinion that she would require ongoing psychological and dietic treatment for her Eating Disorder. I note her limited finances (although the possibility of her parents assisting financially has not been explored), however it would appear that the Alma Street Centre was willing to offer psychological and dietic treatment and I also note that she does not appear to have been referred to the Centre for Clinical Interventions in Perth which is a publicly funded psychological treatment service specialising in Eating Disorders (https://www.cci.health.wa.gov.au/). > > I am of the opinion that the admission threshold of 45kg is likely to be an underestimate and she remains malnourished. > > Her current nutritional state is probably above the threshold of providing treatment on an involuntary basis under the Mental Health Act in Western Australia however, I am of the opinion that further treatment and increase in her weight is likely to lead to an improvement in her overall level of function, psychological symptoms (including mood) and in improvement in her medical issues (neutropenia, propensity for infections, raynaud's, propensity for falls). [sic passim][197] > > [passage cited above]

6. The Applicant's eating disorder has been long-standing; since her late teens. It appears to have flared in intensity during difficult periods of her life, specifically at the time of the dissolution of her marriage, the loss of her employment, and the injuries she sustained which caused her to interrupt her studies. However, her impairments and the co-morbidities arising from them cannot be said to be at an early stage of their trajectory.
7. The Applicant contends that, notwithstanding long-standing nature of her diagnosis, the provision of supports is likely to mitigate to some degree the full impact of her impairments on her functional capacity in the future. The Applicant contends on that basis she should be viewed as meeting the early intervention requirements for the purpose of section 25.
8. I have already traversed the Applicant's functional capacities. There is, in my opinion, no meaningful reduction in her function in the areas of communication, learning, self-care, or self-management. So far as social interaction and mobility are concerned, I am not satisfied on the evidence available to me that the nature of the supports that the Applicant is seeking from the Scheme are early intervention or will provide the benefits required by the Act.
9. The evidence is more to the effect that intervention by way of therapy and like support may improve her condition, but there is not sufficient evidence to identify the supports that the NDIS can provide that would be early intervention in nature; to be able to assess the likely trajectory and impact of the Applicant's impairment over time with or without any intervention; or detail the potential benefits of early intervention on the impact of the impairment on the Applicant's functional capacity. Dr Lin, in her comments regarding social participation, was equivocal as to the benefit of supports.[198] What is plain is that they would require the Applicant's engagement and cooperation.
10. I consider that there is insufficient cogent evidence to support my concluding that the provision of 'early intervention supports' for the Applicant by the NDIS is 'likely to benefit' her by reducing her future need for support in relation to disability arising out of such impairment.
11. In the circumstances, it is unnecessary for me to consider section 25(3) of the NDIS Act. However, the evidence before the Tribunal, including Dr Cheng's assessment referred to by the Applicant, speaks of treatment under alternative available general systems of service delivery to the NDIS, which the Applicant has not pursued or has imperfectly pursued, that may be of benefit to her. As has been traversed, psychological and dietetic treatment is available in the general health system from a specialist eating disorder psychologist through the Centre for Clinical Interventions in Perth, and while sessions may be limited, psychology could be accessed by a mental health care plan and occupational therapy through a chronic diseases management plan or team care arrangement.

1. Having considered the evidence, and for the reasons expressed, I am not satisfied that the Applicant's impairments attributable to her psychosocial and physical conditions result in a substantially reduced functional capacity to undertake any of the activities specified in section 24(1)(c) of the NDIS Act. I am not satisfied that the Applicant satisfies the early intervention requirements for entry to the Scheme in section 25.

I certify that the preceding [152] (one-hundred and fifty two) paragraphs are a true copy of the reasons for decision of Deputy President Mischin

Dates of the hearing: 29, 30, and 31 August 2023.

Solicitor for the Applicant: Mr T Monks, Tom & Co Legal

Solicitor for the Respondent: Ms E Carnell, HWL Ebsworth

[1] Exhibit R1 T7 58-65; Exhibit A6 Applicant's Statement of Facts, Issues & Contentions dated 11 November 2022 at [5].

[2] Exhibit A6 Applicant's Statement of Facts, Issues & Contentions dated 11 November 2022 at [23].

[15] Exhibit R5; Transcript 11; it appears that Ms Cruttenden was provided a briefing letter dated 10 September and conducted her assessment of the Applicant on 16 September. She had already prepared her report of 21 September 2021 by the time she had received the 'amended' briefing letter of 28 September. The letter of 28 September amended the index of documents supplied to Ms Cruttenden, by including reference to the section 37 T-documents and the Tribunal Guidelines for persons giving expert evidence, both of which she had already received on 13 September under cover of the 10 September letter. The briefing letter of 28 September merely more accurately recorded the documentation that Ms Cruttenden had received as her brief and upon which her assessment and report were based: Transcript 77-80.

[19] Exhibit A7; Transcript 87; [2021] AATA 5294 (24 November 2021).

[24] Exhibit A6, Applicant's Statement of Facts, Issues and Contentions dated 11 November 2022; Transcript 16.

[25] Exhibit R8, Respondent's Statement of Facts, Issues and Contentions dated 28 February 2023; Transcript 17.

[31] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Madelaine and National Disability Insurance Agency [2019] AATA 4025 (Madelaine) at [9].

[40] Exhibit A5; [2021] AATA 5294 (24 November 2021).

[42] Ibid 24; and, when younger, was a competitive rower for some four years: Exhibit R6 4, Report of Occupational Therapist Jayne Cruttenden dated 21 September 2021; Exhibit R3 8, Report of Consultant Psychiatrist Dr Victor Cheng dated 1 October 2021.

[59] Transcript 28. Consultant Psychiatrist Dr Cheng reports the Applicant telling him that she had always been vegan or vegetarian; Exhibit R3 12.

[120] Exhibit R3 19-20; such as Exhibit R1 T3 42-47 Discharge Summary from Psychiatric Department Fremantle Hospital dated 27 December 2018; Exhibit R1 T6 56-57 Report to General Practitioner Dr Jing Lin from South Metropolitan Area Psychiatry Registrar Dr Hrehan Kakeen dated 9 March 2020.

[123] A group of mental health conditions characterised by anxiety and fearfulness.

[124] Exhibit R1 T1E 38, NDIA Internal Review Decision dated 29 June 2020.

[126] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), per Katzmann, Perry & Derrington JJ at [59].

[135] Madelaine (n 31) at [87]; Nika and National Disability Insurance Agency [2021] AATA 2127 at [241].

[136] Baranowski and National Disability Insurance Agency [2023] AATA 1701 (Baranowski) at [59].

[155] Kilgallin and National Disability Insurance Agency [2017] AATA 186.

[157] Broadly, paranoid, schizoid, or schizotypal disorders, characterised by odd or eccentric behaviour.

[160] Baranowski (n 137) at [60], [62]-[64].

[161] Madelaine (n 31) at [93]-[95].

[165] Transcript 87-89, closing submissions.

[174] The evidential value of, for example, her inability to climb ladders to clean her gutters was the subject of some discussion during closing submissions. While it might be a task that the Applicant cannot do, and cleaning gutters is something for which she needs the assistance of others, there was no evidence that she would ever have undertaken such a chore even if physically sound.

[189] Foster (n 127) at [93]-[94], [97].

[190] Exhibit R8, Respondent's Statement of Facts, Issue and Contentions dated 28 February 2023 at [50].

[191] [2023] AATA 1760 (Puster); Transcript 129.

[192] [2019] AATA 4248 (James).