Abad and National Disability Insurance Agency (NDIS) - [2025] ARTA 1952

Abad and National Disability Insurance Agency (NDIS) [2025] ARTA 1952 (1 October 2025)
Applicant/s:  Yanni Chalabi Rahim Abad
Respondent:  National Disability Insurance Agency
Tribunal Number:                2023/6870
Tribunal:General Member J McAteer
Place:Sydney
Date:1 October 2025

Decision:The Tribunal affirms the decision under review.

.........................[SGD]...............................................
General Member J. McAteer
Catchwords
NDIS Access reviewable decision of Chief Executive Officer – becoming a participant- access request – whether applicant meets the access criteria whether impairment or impairments permanent – requirements not satisfied – whether all necessary treatments explored – whether lifetime support required – reviewable decision affirmed
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Administrative Review Tribunal Act 2014
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1022
Foster and National Disability Insurance Agency [2021] AATA 4738
National Disability Insurance Agency v Foster [2023] FCAFC 11
Statement of Reasons
INTRODUCTION

Mr Yanni Chalabi Rahim Abad (Mr Abad) who is the Applicant, (the Applicant) reapplied to access the National Disability Insurance Scheme (‘the NDIS’ or ‘the scheme’) in 2023. The Applicant had been a participant in the Scheme for some years but his access to the scheme was revoked by a delegate of the Chief Executive Officer on 10 July 2023.
That decision was made on the basis that the delegate was satisfied that the Applicant no longer met the access requirement for the Scheme, predominantly because his disability was no longer considered permanent. That decision was made in July 2023 where his status as a participant in the scheme was revoked.
The Applicant sought an Internal Review of that decision 5 August 2023. On 14 September 2023 a different delegate of the Chief Executive Officer (CEO) of the NDIS upheld the revocation decision. On 19 September 2023 the Applicant sought Administrative Review of the delegate’s decision before the Tribunal.
The application was lodged with the Administrative Appeals Tribunal (AAT) in September 2023. On 15 October 2024 the Administrative Review Tribunal (ART) replaced the AAT. (see [15] below).
The issue to be decided by the Tribunal is whether the Applicant meets the access criteria to be a participant of the scheme in accordance with section 21 of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’ or ‘the Act’).
BACKGROUND
The Applicant is a 22-year-old male who lives with physical impairments arising from hereditary spastic paraplegia and right foot equinovarus deformity. The Applicant is also considered to have psychosocial impairments arising from Major Depressive Disorder and Anxiety.
On 28 September 2018 the Applicant was accepted into the NDIS. However, in July 2023 the Respondent determined that the Applicant’s psychosocial impairments were not permanent, and the physical impairments did not substantially reduce…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abad and National Disability Insurance Agency (NDIS)

Details

AGLC: Abad and National Disability Insurance Agency (NDIS) [2025] ARTA 1952
Case: [2025] ARTA 1952
Decision Date: 1 October 2025

CaseChat Overview and Summary

In the case of Abad and National Disability Insurance Agency (NDIS), the applicant, a 22-year-old male with physical impairments from hereditary spastic paraplegia and right foot equinovarus deformity, along with psychosocial impairments from Major Depressive Disorder and Anxiety, sought to challenge a decision by the NDIS that his impairments were not permanent and did not substantially reduce his functional capacity. The dispute was brought before the Tribunal to determine whether the applicant met the access criteria for participation in the NDIS, as outlined in section 21 of the National Disability Insurance Act 2013. The Tribunal was required to assess whether the applicant's impairments were permanent and if they substantially reduced his functional capacity, as well as whether all necessary treatments had been explored and if lifetime support was required.

The Tribunal examined the evidence presented, including medical reports and the applicant's response to the NDIS's request for further evidence. The Tribunal considered the statutory criteria under sections 24 and 25 of the NDIS Act, which require that the impairments be likely to be permanent and substantially reduce functional capacity. The Tribunal also noted that the applicant had not undergone proposed surgical treatments that could have potentially improved his condition and functionality. After reviewing the evidence, the Tribunal concluded that the applicant did not meet the criteria for permanent impairments or for impairments that substantially reduced his functional capacity. Consequently, the Tribunal affirmed the NDIS's decision to revoke the applicant's status as a participant.

The Tribunal's decision hinged on the interpretation of permanence as requiring enduring impairments, supported by medical evidence and clinical treatments. The Tribunal found that the applicant's decision to cancel proposed surgeries, which were deemed effective treatments, undermined his claim for permanent impairments. The Tribunal's reasoning underscored the importance of exploring all available treatments and the need for substantial evidence to support claims of permanent impairment. The outcome affirmed the NDIS's decision, maintaining the applicant's exclusion from the scheme based on the current evidence presented.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue to be decided by the Tribunal is whether the Applicant meets the access criteria to be a participant of the scheme in accordance with section 21 of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’ or ‘the Act’). BACKGROUND The Applicant is a 22-year-old male who lives with physical impairments arising from hereditary spastic paraplegia and right foot equinovarus deformity. The Applicant is also considered to have psychosocial impairments arising from Major Depressive Disorder and Anxiety. On 28 September 2018 the Applicant was accepted into the NDIS. However, in July 2023 the Respondent determined that the Applicant’s psychosocial impairments were not permanent, and the physical impairments did not substantially reduce the Applicant’s functioning. The decision is therefore two pronged, (a) that some of the impairments are no longer likely to be permanent and (b) that those disabilities that are deemed permanent do not substantially reduce the Applicant’s functional capacity across the required domains as set out in the NDIS Act. In early 2023 the Applicant requested that the NDIA change his plan (statement of participant supports). This arose in the context of the NDIA earlier requesting evidence from the Applicant that he remained eligible to participate in the Scheme. That request arose in the context that the Respondent provided a letter in October 2022 that they were checking the Applicant’s eligibility requirements. The Respondent obtained information from Dr Hassan Neurologist and Dr Swid general practitioner and put the Applicant on notice as to their preliminary position that he no longer met the eligibility requirements to be a participant in the NDIS. Having reviewed that material including the Applicant’s response, the delegate made a decision that the Applicant did not meet the disability requirement (s 24 of the NDIS Act) or the early intervention requirements under s 25 of the NDIS Act. At the time of this decision on 12 July 2023 the Applicant’s status as a participant in the NDIS was revoked. On 5 August 2023 the Applicant sought internal review of that decision. On 23 September 2023 a different delegate confirmed the earlier decision The Applicant was initially accepted onto the Scheme based on the following reported disabilities:(a)Hereditary spastic paraplegia, severe right foot equinovarus deformity and Major Depressive Disorder with symptoms of PTSD and anxiety. On Internal Review the delegate found that the Applicant lived with a disability attributable to a physical impairment from the Hereditary Spastic Paraplegia. In addition, they found that in respect of the major depressive disorder (MDD) and the Post Traumatic Stress Disorder (PTSD) and Anxiety, the Applicant lived with a disability attributable to psychosocial impairment. However, in respect of permanency they were not satisfied for either group of disabilities that the conditions were permanent. Proceedings before the Tribunal

Evidence

Evidence Before The Court

For the Applicant to regain access to the Scheme, the Tribunal must be positively satisfied that all the access criteria in either the disability requirements or the early intervention requirements are met. The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[7] In accordance with Foster the Tribunal must consider a functional practical assessment of what the Applicant can and cannot do.[7] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).Evidence at hearing The parties indicated on day one of the morning of the hearing that they had come to an agreement that the proceedings should proceed on the papers. The Respondent’s legal representatives appeared and proposed that the Tribunal make orders under s 106 (2) of the Administrative Review Tribunal Act 2024. Section 106 provides that: ADMINISTRATIVE REVIEW TRIBUNAL ACT 2024 (NO. 40, 2024) - SECT 103If parties reach agreement--review of decisions onlyTribunal may make decision agreed by parties(1) If, at any time:(a) the parties to a proceeding for review of a decision agree on the terms of a decision of the Tribunal:(i) in the proceeding; or(ii) in relation to a part of the proceeding; or(iii) in relation to a matter arising out of the proceeding;that would be acceptable to the parties; and(b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and given to the Tribunal; and(c) if the terms of the agreement are signed in a dispute resolution process under Subdivision C of Division 6--7 days pass after the terms of the agreement are given to the Tribunal and none of the parties has notified the Tribunal in writing that the party wishes to withdraw from the agreement; and(d) the Tribunal is satisfied that a decision in the terms of the agreement or consistent with those terms would be within the powers of the Tribunal;the Tribunal may act in accordance with subsection (2) or (3).Decision agreed by parties(2) If the agreement reached is an agreement on the terms of a decision of the Tribunal in the proceeding, the Tribunal may, without holding or completing the hearing of the proceeding, make a decision in accordance with those terms.Tribunal does not need to deal with agreed part or matterthe powers of the Tribunal to have made the decision as varied. The Tribunal then determined to decide the matter in the absence of the parties and any witnesses and had regard to the written material of both parties including the written material of the proposed witnesses.Consideration A person meets the disability requirements if the matters in s 24 (1) (a) – (e) of the NDIS Act are met. (see [24] above). Section 24 (1) ((a) deals with impairment and s 24 (1) (a) deals with impairment and s 24 (1) (b) deals with permanence. There are in fact five subparagraphs, and they are cumulative in that each criteria must be achieved in order to satisfy the section.

Decision

Reasons for decision

In the view of the Tribunal sufficient material was before it to determine whether the Applicant meets the necessary requirements of s 24 (1) (a) – (e) inclusive having regard to his brief written evidence and material and that of the Respondent and witnesses reports. Conclusion In the current application, for the reasons outlined above the Tribunal is not satisfied that the Applicant meets the s 24 or section 25 criteria under the NDIS Act. In that regard the Applicant does not satisfy the requirements of a person to become a participant in the NDIS. The Tribunal therefore affirms the decision of the Respondent dated 14 September 2023 in accordance with s 105 (1) (a) of the Administrative Review Tribunal Act 2024.

Ratio Decidendi

Legal Principle Established

The Tribunal then determined to decide the matter in the absence of the parties and any witnesses and had regard to the written material of both parties including the written material of the proposed witnesses.Consideration A person meets the disability requirements if the matters in s 24 (1) (a) – (e) of the NDIS Act are met. (see [24] above). Section 24 (1) ((a) deals with impairment and s 24 (1) (a) deals with impairment and s 24 (1) (b) deals with permanence. There are in fact five subparagraphs, and they are cumulative in that each criteria must be achieved in order to satisfy the section. The Tribunal notes that the Respondent accepts that the Applicant has impairments in the nature of physical (being the hereditary spastic paraplegia and right foot deformity), and psychosocial impairments being his MDD and anxiety. This discharges the requirements of the Applicant concerning s 24 (1) (a). However, the real issue to be addressed and the reason for the removal from the Scheme is a new finding that the impairments are not permanent. Section 24 of the NDIS Act requires that the impairments are likely to be permanent, Rule 5.4 provides circumstances for considering whether an impairment is likely to be permanent, using language such as ‘likely to be permanent if there are no known, available and appropriate evidence - based clinical, medical or other treatments that would be likely to remedy the impairment.’ In order to determine that the impairments are likely to be permanent the Tribunal must consider evidence that demonstrates that there are no known available and appropriate evidence based clinical medical or other treatments that would be likely to remedy the impairment. This position must apply the meaning of permanent as set out in the decision in National Disability Insurance Agency v Davis [2022] FCA 1022 in that permanent equates to enduring. The Tribunal has had regard to the following evidence concerning physical impairments. Three letters from Professor Al Muderis (Orthopaedic Surgeon) dated 29 April 2024, 30 August 2024 and 27 November 2024. Those letters refer to proposed surgical procedures to assist the Applicant with walking and weight bearing. Possible further surgeries could correct limb length and fix or prevent any arthritis that may develop in future years in the limb joints. Surgery scheduled for 2024 was intended to give the Applicant a plantigrade foot (to enable him to walk entirely on the soles of the foot), and to improve functionality and reduce the Applicant’s pain in activities of daily living requiring movement of lower limbs. The Tribunal notes that the Applicant cancelled the surgery, and this was confirmed at a telephone case management directions hearing before the Tribunal. Professor Al Muderis confirmed in writing that surgery now would be beneficial longer term not only to prevent progressive deformities but to also improve the Applicant’s quality of life by lessening his impairment. Surgical procedures were confirmed as an effective and available treatment and according to Professor Al Muderis they would be the most effective corrective treatment with a prognosis of significantly improved capacity after recovery and rehab.