Abad and National Disability Insurance Agency (NDIS)
[2025] ARTA 1952
•1 October 2025
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 2013National 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 4738National 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 The Applicant had been a participant in the Scheme for some years but his access to the scheme was revoked by a delegate of the Chief Executive Officer on 10 July 2023.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 That decision was made in July 2023 where his status as a participant in the scheme was revoked.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 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
On 19 September 2023 the Applicant sought administrative review before the Tribunal.
Amendments to the NDIS and Tribunal Legislation
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). In accordance with the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) commenced on 3 October 2024 and made amendments to the NDIS Act. The Respondent made the following submissions in respect of the effect of the amending legislation on these proceedings:
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on
Track No. 1) Act 2024 (Amending Act) commenced on 3 October 2024.
Effect of amended NDIS Act on Access Request
An issue arises in relation to the Applicant’s Tribunal application, being whether the
Tribunal should apply the provisions of the National Disability Insurance Scheme Act
2013 (NDIS Act) that applied at the time the access request and/or application to the
Tribunal were made, or the NDIS Act as amended.
The NDIS access criteria are set out under section 21 of the NDIS Act. The age (section 22) and residence (section 23) requirements remain unchanged in the NDIS Act.
However, sections 24 and 25 of the NDIS Act have been amended by the Amending
Act with effect from 3 October.
Under item 126 of Schedule 1 to the Amending Act, the amendments to section 24 and 25 apply to access requests that are made to the NDIA by a prospective participant on or after 3 October 2024. This means these amendments will only apply to access matters that are before the Tribunal if the prospective participant made a request to access the NDIS under the new Amending Act requirements on or after 3 October 2024.
Subitem 126(3) of Schedule 1 to the Amending Act also provides that the National
Disability Insurance Scheme Rules made under section 27 of the NDIS Act as in force before 3 October 2024 continue to apply on and from 3 October 2024. This means that the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Becoming a Participant Rules) (which are the rules made under section 27 of the NDIS Act) prior to 3 October 2024, continue to apply.
As the Applicant’s request for access to the NDIS was made before 3 October 2024,
the Tribunal application must be determined in accordance with sections 21, 24 and 25 of the NDIS Act as they existed before the commencement of the Amending Act on 3 October 2024. The Becoming a Participant Rules also continue to apply to the
Applicant’s request for access.
The Respondent submits that the provisions applicable to the Applicant’s request for access are the access provisions in sections 21-25 of the NDIS Act as in force
immediately before the commencement of the Amending Act.
I agree with those submissions. The reviewable decision is in effect a decision under clause 3 of the Table to s 99 of the NDIS Act, being a decision to revoke a person’s status as a participant pursuant to s 30A (1) (c) of the NDIS Act.
By weight of that decision the Applicant lost access to the Scheme. By seeking administrative review the Applicant is in effect seeking to ‘regain’ access to the Scheme.
As the Applicant’s request for access to the NDIS was made before 3 October 2024, section 126 provides that the NDIS Act, Rules and Guidelines apply as they existed before commencement of Act. Therefore, the amendments to the NDIS of October 2024 do not apply to these proceedings if they are access proceedings.
In the absence of any submission to the contrary, it is efficient and desirable to treat the proceedings as an access request even though they arise under cl 3 of the Table to s 99 not clause 1.
LEGISLATIVE FRAMEWORK
The access criteria
Applying the access criteria to the applicant’s stated circumstances is necessary to determine whether the decision to revoke access was the correct or preferable decision.
As the Tribunal has regularly observed from an examination of the Legislation, to become a participant of the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:
(1) A person meets the access criteria 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).
As noted from the decision under review, there is no dispute that the Applicant satisfies the age and the residence requirements. What the Tribunal must decide is whether the Applicant satisfies the access criteria in section 24 (‘the disability requirements’) or section 25 (‘the early intervention requirements’).
Section 24 of the Act states:
(1) A person meets the disability requirementsif:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self care;
(vi) self management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require 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.
If the Applicant does not meet the disability requirements, the Tribunal must consider whether they meet the early intervention requirements set out in section 25 of the Act which relevantly states:
(1). A person meets the early intervention requirementsif:
(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 a developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
As previously observed, under subsection 209 (1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that NDIS rules may prescribe circumstances and criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules in the Applicant’s case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), which form part of the legislative framework.
The NDIS Operational Guidelines are relevant to making decisions in accordance with the NDIS Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[1] It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409. The relevant Operational Guideline at time of the decision under review are: Our Guidelines – Becoming a participant – Applying to the NDIS (1 February 2024)(‘the Access Guideline’).[2]
[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[2] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 February 2024).
As previously noted by the Tribunal in the case of Mulligan[3], the Federal Court held that the legislation pertaining to the access criteria requires “a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted”.[4] The Full Court of the Federal Court of Australia in Foster[5]also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[6]
[3] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’) at [55].
[4] Mulligan at [55].
[5] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’).
[6] Foster at [44].
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 103
If parties reach agreement--review of decisions only
Tribunal 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 matter
the 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.
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.
Having regard to the matters summarised form Professor Al Muderis’s correspondence from 2024, I am not satisfied that there is ‘no known, available and appropriate evidence -based clinical, medical or other treatments that would be likely to remedy the impairment’.
On this basis I cannot be satisfied that the Applicant’s physical impairments are permanent for the purpose of s 24 (1) (b) of the NDIS Act. On the contrary the letters form Professor Al Muderis indicate that there are effective known treatments likely to significantly improve the applicant’s overall physical capacity (including pain reduction) which would result in a minor impairment if any in the future for the Applicant in respect of his physical matters.
In respect of the psychosocial aspects of his claim, there is evidence that the Applicant was not currently engaged in treatment. From a report in January 2024 by T Gilbert consultant psychologist, the following is evident:
·The Applicant is not seeing any clinician (Psychologist or Psychiatrist);
·The Applicant is not taking any medication for psychosocial symptoms and none are prescribed,
·Ms Gilbert opines that the intervention of a psychologist would be clinical best practice for the Applicant, with an opinion that they would expect some improvement in mood and anxiety symptoms within three to six months.
·As the mood (MDD), anxiety (panic disorder) is directly related to his current physical impairments and condition, if these matters were addressed and to a significant extent cured then there would be a significant falling away of his current psychosocial impairments.
The Respondent submitted in their statement of facts issues and contentions that given the clinician’s report there are clearly available treatments for the Applicant. Accordingly, the Tribunal cannot be satisfied that in respect of psychosocial matters that there are no known available and appropriate evidence based clinical treatments available that would reduce the Applicant’s reliance on support and treatment in future. As a result of this finding, it cannot be said that the Applicant’s psychosocial impairment is unrelated (nothing the correlation between his physical and psychological impairment), that would result in a finding of permanence.
I therefore find that s 24 (1) (b) is not met in respect of the application.
It follows that other aspects of the administrative review fall away.
As the Applicant has not succeeded on s 24 (1) (a) and (b) of the NDIS Act, having regard to the rules and other statutory provisions, it would have been open to the Tribunal to reexamine those matters and make findings in each of the other s 24 areas.
However, I decline to engage in a detailed examination of these matters because (a) the Applicant has been withdrawn for the Scheme on the basis of failure to explore available treatments, and a finding on administrative review that your basis for being accepted into the scheme has now resulted in available treatments which would effectively lessen the impairment arising from the disability.
In any event the Occupational Therapy report (OT) from Mr F Khoury arising from an assessment of the Applicant in his home on 26 July 2023 and OT report from Ms M Sale dated 3 March 2024 indicate independence on the domains of communication, social interaction, an absence of any inability to socially interact, independence in cognition and learning, broadly independent with self-care although some tasks are currently performed with difficulty. as well as reduced but not substantially reduced functioning in respect of mobility.
In the area of self-management, the Applicant is reported to be independent with decision making tasks. Because there is contention that his condition would be lifelong, it would appear that under s 24 (1) (e) of the NDIS Act, the Applicant is unlikely to require NDIS support for his lifetime, as his conditions would respond to treatment.
Likewise early intervention eligibility is hampered by a provisional position that the Applicant’s disabilities are not permanent and will respond well to treatment.
The Tribunal notes that the available evidence from the Applicant does not address the treatment issues, merely referring to his circumstances based on a hereditary physical condition. In weighing up the treatment options a general fear of infection, or any risk associated with surgery is not sufficient to displace the general need to engage in treatment.
Whilst the Applicant may currently require NDIS support because of his mobility limitations, in that it would make his lifestyle easier and less debilitating, the threshold issue concerns the response to and pursuit of treatment. The provisions that all treatment be exhausted and that the support be lifelong are provisions designed to ensure that those most needing lifetime support have access to the Scheme, and to limit access to those who would respond favourably to treatment of their disabling impairment.
In this regard the Tribunal finds that the s 24 criteria are not met on the available evidence.
The substantive issue concerns whether any of the impairments are permanent and all treatment options having been exhausted. I find for the reasons outline above that this is not the case and that the evidence indicates that I cannot be satisfied that s 24 (1) (b) is met having regard to Rule 5.4.
It follows that s 24 (1) (c) is not met because of the evidence outlined briefly above and the position under s 24 (1) (e) that the Applicant is not likely to require lifetime support.
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.
Date(s) of hearing: Hearing on the Papers Applicant: Self-represented Counsel for the Respondent: Mr N. Swan of Counsel Solicitors for the Respondent: Maddocks Lawyers
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