Harding and CEO, National Disability Insurance Agency (NDIS)
[2025] ARTA 373
“on any given day, Ms Harding would need to choose not to do one or more of those tasks it has found she can in isolation do.”
What the record established
Ms Harding has fibromyalgia. She had never been referred to a rheumatologist, and the untried specialist was where the Agency's permanence argument started.
Her GP had already answered the question. A July 2024 report recorded that she had been fully compliant with therapy to date, that her impairments had been optimally treated, and that no other evidence-based treatment was available [33].
The rest of the file was current and specific rather than descriptive. Three immunotherapy dose increases after the surgery the Agency said she should wait for [53(g)]. A neurology letter dated a month before the hearing, recording that the neurologist had decided against the drug the Agency was calling untried [55].
What carried it
On permanence, the Tribunal reasoned from the state of the evidence rather than from the missing referral: “There is no evidence before the Tribunal that there is any treatment, or combination of treatments, that Ms Harding has not yet trialled, that may remedy her physical impairment” [58].
Functional capacity nearly went the other way. Assessed task by task, the Tribunal said it would not have found the domain made out [77].
What changed it was her occupational therapist's objection to that method (assessing tasks in isolation “is not necessarily the big picture for someone with very low levels of activity tolerance and fatigue, because that translates across all activities” [72]), put alongside Ms Harding's own account that each morning she has to choose what she will not do, so that she can do what must be done [70].
Not everything survived. A functional report twelve months old lost her the grooming point [73(e)].
Hardingat [70]
she must choose what she will not do, so she can achieve what she must
The applicant's own account of an ordinary morning, and the sentence the functional finding was built on.
Hardingat [72]
not necessarily the big picture for someone with very low levels of activity tolerance and fatigue, because that translates across all activities
The occupational therapist's objection to task-by-task assessment, on the record and available to be relied on.
Hardingat [58]
There is no evidence before the Tribunal that there is any treatment, or combination of treatments, that Ms Harding has not yet trialled, that may remedy her physical impairment
Permanence decided on the state of the evidence, not on the referral that was never made.
Read the decision
Harding and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 373
Published in full on AustLII, and citable by that reference.
Read with Nematian [2025] ARTA 2439. Same condition, same threshold, opposite outcomes.
These are published Tribunal decisions, not my clients. They're summarised to show what the records in each matter did and didn't establish. Nothing here is a prediction about any other matter, and no outcome is implied. Every decision turns on its own evidence.