Aiello and National Disability Insurance Agency (NDIS)
[2025] ARTA 72
•7 February 2025
Aiello and National Disability Insurance Agency (NDIS) [2025] ARTA 72 (7 February 2025)
Applicant:David Aiello
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/3036
Tribunal:Senior Member A Clues
Place:Hobart
Date:7 February 2025
Decision:The Tribunal affirms the decision under review.
…………………[SGD]…………………….
Senior Member A Clues
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – applicant suffers physical and psychosocial conditions – chronic pain syndrome – access – access criteria – whether impairments are permanent – whether further treatment is available that is likely to improve his chronic pain syndrome – whether applicant meets the disability requirements or the early intervention requirements – decision affirmed
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth)
Cases
Jalaudin and National Disability Insurance Agency [2023] AATA 448
Kelly v National Disability Insurance Agency [2024] FCA 1462
LPRK and National Disability Insurance Agency [2022] AATA 4428
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v National Disability Insurance Agency [2015] FCA 544National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11Nika and National Disability Insurance Agency [2021] AATA 2127
Secondary Materials
National Disability Insurance Agency, ‘NDIS Operational Guidelines – Access’
Statement of Reasons
INTRODUCTION
The applicant is a 32-year-old male seeking access to the National Disability Insurance Scheme (NDIS).
On 24 October 2018, the applicant suffered an injury to his left wrist, whilst employed as a fitter. The applicant now suffers with pain in his left wrist, left upper limb (possible brachial plexopathy), right thumb, right elbow, chronic pain syndrome, major depressive disorder (MDD), generalised anxiety disorder (GAD), possible aggravation of post-traumatic stress disorder (PTSD), hypersomnolence and avoidance restrictive food intake disorder (ARFID).
The applicant has a current workers’ compensation claim and is in receipt of workers’ compensation benefits, however, there is a dispute between the applicant and his employer’s insurer (EML) about whether he suffers from a chronic pain syndrome as a result of his work injury. That dispute is ongoing and unresolved.
The applicant currently resides with his mother, her partner and his brother in his mother’s home. He separated from his wife and he has not seen his three children since April 2024.[1]
[1] H39A p 2.
The respondent has accurately summarised the background to this application for review in paragraphs 2 to 5 of its Statement of Facts, Issues and Contentions dated 2 December 2024:
·On 15 February 2023, a delegate of the Chief Executive Officer (CEO) of the respondent made a decision not to grant the applicant access to the NDIS as he did not meet the access criteria pursuant to section 24 or section 25 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) (the reviewable decision).
·On 24 March 2023, the applicant requested an internal review of the reviewable decision under section 9 of the Act.[2]
·The decision under review by this Tribunal is the decision made by a delegate of the CEO of the respondent on 11 April 2023 pursuant to subsection 100(6) of the Act, which affirmed the reviewable decision (internal review decision).[3]
·On 4 May 2023, the applicant lodged an application for review of decision to the Tribunal, that is, the application for review that is before the Tribunal.[4]
[2] H14 p 245.
[3] H4 pp 211-223.
[4] H3 pp 56-210.
The Tribunal held a hearing by Microsoft Teams video on 16, 17 and 18 December 2024. Both parties were represented at the hearing. The respondent prepared a joint hearing book which was tendered in evidence by consent. At the hearing the applicant produced two further documents that were also tendered by consent, namely, a sales quotation dated 21 October 2024 and a supplementary report of Ms K Couch, occupational therapist, dated 24 October 2024.
LEGISLATIVE FRAMEWORK
In order to become a participant of the NDIS the applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which states:
(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).
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act2024 (Cth) (the Amending Act) commenced on 3 October 2024. The age (section 22) and residence (section 23) requirements of the Act remain unchanged. However, sections 24 and 25 of the Act have been changed by the Amending Act.
Under section 126 of the Amending Act, the amendments to sections 24 and 25 apply to access requests that are made to the respondent on and after 3 October 2024. Section 126 of the Amending Act further provides that the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Rules) made under section 27 of the Act as in force prior to 3 October 2024 continue to apply to access requests made prior to 3 October 2024.
The applicant’s request for access to the NDIS was made before 3 October 2024. The respondent submits that pursuant to section 126 of the Amending Act, this application for review should be determined in accordance with the Act and the Rules as they existed prior to the commencement of the Amending Act on 3 October 2024. No submissions were made to the contrary on behalf of the applicant. The Tribunal accepts the respondent’s submission as an accurate analysis of the applicable legislation.
ISSUES
There is no dispute that the applicant satisfies the age and residence requirements of the Act. The issues before the Tribunal are whether the applicant satisfies:
a) The disability requirements (section 24).
b) The early intervention requirements (section 25).
In order for the applicant to gain access to the NDIS, he must positively persuade, and the Tribunal must be positively satisfied, that all the access criteria in either the disability requirements or the early intervention requirements are met.
Section 24: the disability requirements
Paragraph 24(1)(a) states that a person meets the disability requirements if:
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.
Paragraph 24(1)(b) stipulates that the impairments are, or are likely to be, permanent. “Permanency” of an impairment is discussed at rules 5.4 to 5.6 of the Rules and paragraph 8.2 of the NDIS Operational Guidelines - Access (the Guidelines).
Rules 5.4 to 5.6 state:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
In relation to whether an impairment is likely to be permanent, the Guidelines state:
We need evidence that you’ll likely have your impairment for your whole life.
You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity (s 24(3)). Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.
Even when your condition or diagnosis is permanent, we’ll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, still being treated, or if there are remaining treatment options.
Generally, we’ll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued.
...
If you’re still undergoing or have recently had treatment, we’ll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent.
In some situations, it may be clear your impairment is likely to be permanent while you’re still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it’s clear you’ll have a permanent impairment.
You might still have a permanent impairment, even if its effects may change over time.
Paragraph 24(1)(c) stipulates that 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.
Relevant to the above activities is rule 5.8 of the Rules, which states as follows:
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 24(1)(d) stipulates that the person’s impairment/s affect their capacity for social or economic participation.
Paragraph 24(1)(e) provides that the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime.
The Guidelines relevantly state:
For example, you may have an impairment which is cased by a chronic health condition. Many chronic health conditions are most effectively managed or remedied through medical management through the health system. If this is the case, we may decide you don’t have a lifetime need for support under the NDIS.
Section 25: early intervention requirements
Section 25 provides 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 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.
…
(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.
THE EVIDENCE
The evidence that is considered to be relevant by the Tribunal is summarised below.
The applicant
At the hearing, the applicant did not give evidence in chief. He relied upon the evidence contained in his Statement of Facts, Issues and Contentions (the applicant’s SOFIC) filed on 16 November 2024.[5] At page 19 it is submitted that:
The applicant is seeking access to the NDIS on the basis of the following permanent conditions:
·Left upper limb chronic/ complex regional pain symptom (CPRS) [sic].
·Brachial plexopathy (chronic partial denervation)
·left wrist injuries (ECU subluxation, TFCC tears and ulnocarpal abutment)
·Right thumb joint instability and right elbow tear (and related chronic pain)
·Major depressive disorder (MDD) and generalised anxiety disorder (GAD) (and related chronic pain and hypersomnolence); and
·avoidance/restrictive food intake disorder (AFRID).
[5] H1 pp 1-31.
The applicant’s SOFIC also refers to the applicant’s admission to the Toowong Private Hospital from 13 May 2024 to 10 June 2024 for the treatment of chronic adjustment disorder and aggravated complex PTSD.[6]
[6] H1 p 26.
The applicant’s daily routine is summarised as follows:
Wake up – 7:00am
Take medication
Making a daily goals list, i.e. appointments, meditation, spending time with his ill grandmother
Walking (dependent on symptoms)
Becomes fatigued and exhaustedRequires a short nap in the afternoon.[7][7] H1 p 22.
According to the applicant’s SOFIC, he requires assistance for everyday living; he cannot socialise as he suffers from anxiety regarding judgement; he requires support to do social and recreational activities due to his physical disabilities; and his depression, anxiety and complex PTSD cause significant disturbances to his sleep pattern leading to exhaustion throughout the day.[8]
[8] H1 p 23.
In March 2024, the applicant’s ‘wife lost control and held a knife to him’. He no longer resides with his wife. There are three children to the marriage, and the applicant has been denied access to the children by his wife.[9]
[9] H1 p 21.
During cross examination, the applicant said that after he separated from his wife, he located a flatmate through flatmates.com. He resided with that flatmate in a unit in Brisbane with no difficulties until the end of August 2024 when he moved into his mother’s home. He now resides with his mother, her partner and his brother in that home. He is not seeing his children at all; he is hopeful to get supervised contact with them in 2025.
The applicant admitted he could do online shopping, but he does not need to do shopping because his mother and brother organise this. He can prepare his own food comprising light meals, rice and salad. He cannot cut up hard vegetables. His mother does some cooking. He cleans his own room. He does not go out due to anxiety, fatigue and pain. He is not working or studying at the moment and he does not socialise with anyone outside of his home. He is close to his grandmother who lives near him.
Prior to his separation from his wife he was attending a photography course in Orange. He arranged for one of his classmates to drive him there and back. He attended two days per week. There were five to six people in his class and he participated in activities with his class members.
Prior to his separation, he did interact with other parents at the daycare centre that his children attended. When he was living with his wife and children at the family home in Bathurst, his workers’ compensation insurer (EML) paid for cleaning and gardening three hours per fortnight. He does not need this assistance whilst living with his mother. If he moved to different accommodation his needs would need to be reassessed. EML has provided him with equipment to assist his daily activities including: a tipper kettle, a blender, an electric can opener, an electric jar opener, non-slip mats, long handled shower brush, spray mop, light stick vacuum cleaner, waist height clothesline and modified bed sheets.
He agreed that Dr Champion (rheumatologist) recommended in his report dated 1 November 2023 that he needs to engage in pain management treatment. His workers’ compensation insurer, EML, has denied liability for his chronic pain and will not pay for his participation in that treatment. There are workers’ compensation proceedings on foot in relation to his claim for that treatment.
At the hearing, oral evidence was given by two occupational therapists. Ms K Couch was called on behalf of the applicant and Mr T Cleary was called on behalf of the respondent.
Ms Couch
Ms Couch prepared two reports, the first dated 29 February 2024 and the second dated 24 October 2024. Her first report was prepared after an assessment of the applicant undertaken when he was living with his wife and three children in the family home. The second was prepared after an assessment of the applicant was undertaken in his current residence.
Ms Couch gave the following oral evidence:
·The applicant is separated from his wife and does not have any current care of his children. If he were given care of his children, he would require assistance with lifting and bathing the younger ones. He would also require assistance driving them around and participating in social/recreational and community activities.
·In relation to shopping, his mother currently attends to this. He could buy incidental items and items sufficient for one meal that he could carry in one or two bags. He could shop each day for himself and he could do online ordering for a bigger shop.
·He is able to do his own laundry. He has modified sheets and bedding and he has a chest height clothesline.
·He can manage light cleaning. He has a spray mop and a stick vacuum cleaner. He can wipe down surfaces. He keeps his own bedroom and bathroom clean.
·He can prepare meals for himself but would require assistance preparing meals if he had care of the children.
·The deterioration of the applicant’s mental health has led to an increase in his ‘deconditioning’.
·Because the applicant is not doing a lot, he has suffered a degree of physical deconditioning. She recommends that he be referred for review with an exercise physiologist who could determine his suitability for pain education and functional conditioning.
·Funding for referral to an exercise physiologist may be provided as part of the applicant’s workers’ compensation claim or through Medicare as part of a chronic disease management plan. Medicare would fund 5 to 6 sessions, after that it would be user pay.
·A referral to an exercise physiologist could increase the applicant’s tolerances for: walking, sitting and standing; cardiovascular fitness, endurance and strength; access to the community; capacity to engage with more tasks around the home; and pain management.
·She agreed that the applicant would benefit from a specialised pain management program.
Mr Cleary
Mr Cleary undertook an assessment of the applicant on 14 August 2023 when he was residing in the family home with his wife and children. After that assessment he prepared a report dated 28 August 2023. He has not seen or assessed the applicant since that date.
It was accepted that there had been a number of changes to the applicant’s living arrangements since that assessment had taken place. At the hearing, counsel for the applicant submitted that due to the non-currency of Mr Cleary’s report it should not be relied upon. The Tribunal has determined not to rely upon Mr Cleary’s evidence. However, the Tribunal makes no adverse finding as to the currency or accuracy of his report or his evidence.
Dr Gehr
Dr Gehr (orthopaedic surgeon) conducted an assessment of the applicant on 20 March 2023, in his supplementary report dated 20 March 2023, Dr Gehr states that the worker has a permanent impairment in his left wrist, left shoulder and left brachial plexus. He says the applicant has point tenderness over the base of the right thumb and right elbow but no ratable impairment.[10]
[10] H3 pp 165-167.
Dr Manohar
Dr Manohar (interventional pain physician) assessed the applicant on 14 June 2023. In a report of the same date, he said the applicant had been admitted to the Royal Prince Alfred Hospital for assessments and he had formed the view that the applicant had a chronic regional pain syndrome and that he could offer him a chronic pain program to address the issues of chronicity.
Drs Bisht and Trmcic
Drs Bisht and Trmcic are psychiatrists who have assessed the applicant and prepared reports. Dr Bisht assessed the applicant as having a permanent impairment as a result of MDD and Dr Trmcic diagnosed the applicant with GAD and accepted that he had a permanent impairment as a result of it.[11]
[11] H3 pp 69-75; 123-124; 130-131; 186-188; H15 p 246.
Dr Trmic states in her report dated 26 April 2023 that the applicant’s “mental health impairment is complex, perpetuated by and narrowly related to his physical injury, subsequent impairments and ongoing chronic pain.”[12]
[12] H15 p 248.
Dr Wong
Dr Wong (psychiatrist) provided inpatient treatment to the applicant at the Toowong Private Hospital from 13 May 2024 to 10 June 2024. In his reports dated 4 June 2024, 9 July 2024 and 6 November 2024[13] he refers to the applicant as suffering from the conditions of chronic adjustment disorder with mixed anxiety and depressed mood (anxiety and depressive disorders) aggravation of complex PTSD, and undiagnosed ADHD from his early childhood. In his report of 9 July 2024, he says that these conditions were partially stabilised as a result of the inpatient treatment and that the applicant:
… is receiving ongoing outpatient psychiatric and psychological treatment provided by me and his clinical psychologist. It will require a couple of years of ongoing combination treatment in order to address his underlying core psychopathology adequately. His prognosis is guarded despite appropriate treatment. The best one can hope for with continued treatment is an improvement in his acceptance and better management of his conditions.[14]
[13] H37, H38, H39.
[14] H38 p 442.
Ms Jacquety
Ms Jacquety (psychologist) provided treatment to the applicant in relation to his MDD and GAD. In her report dated 13 February 2024 she recommended ongoing treatment for the applicant to focus on strategies for acceptance, distress tolerance and self-management.[15]
[15] H34 p 416.
Dr Champion
Dr Champion (rheumatologist) assessed the applicant on 1 November 2023 and prepared a report on the same date. In that report Dr Champion recorded that the applicant told him:
… he had a multiregional or relatively widespread pain not only in his left upper limb, but neck, upper back, base of the right thumb and both feet. There have been no further injuries. He presented a concept that in some way these various additional pain sites have evolved because of the primary injury and the complicating left brachial plexopathy. He then told me of what a struggle the whole medicolegal process has been. He went bankrupt in 2018. He has had to contend at times with a disbelieving employer and unsupportive medical assessments. The left upper limb pain and paraesthesiae [sic] with associated disability continues to be the most severe and problematic condition, particularly as he is naturally left handed and also it interferes with sleep and influences his mental health. He experiences constant guilt and shame, “this eats me up every day.” This is primarily because he is not able effectively to conduct his role as husband and father. He is also distressed by the failure of the CRPS diagnosis to be accepted in the workers compensation process enabling him to receive treatment.[16]
[16] H32 p 398.
At Dr Champion’s request, the applicant completed several questionnaires including: Graded Chronic Pain Scale; Pain Catastrophising Scale; PCL5 questionnaire for DSM V criteria for PTSD; Impact of Events Scale – Revised; Depression, Anxiety and Stress Scale 21; IEQ questionnaire for perception of injustice; Social Functioning Questionnaire; Multi-sensory Amplification Scale; and a questionnaire regarding biopsychosocial model of chronic pain. The applicant endorsed the high ends of all the scales, which raises the question as to whether he really is as bad as the results indicate or whether he is making an extra point of emphasis, maybe related to frustration, disappointment and other factors about how bad things are and that something should be done to help. The applicant cautiously acknowledged this was possible to some extent.[17]
[17] H32 p 399-400.
Dr Champion says, “There is a strong combination of physical and psychosocial disability as he reports his history and current status”.[18]
[18] H32 p 404.
Dr Champion reports the following:
Onset of diagnosis and impairments:
·The left wrist injuries (extensor carpi subluxation, triangular fibrocartilage complex tears, ulnar carpal abutment) occurred at the time of the primary injury on 24 October 2018. The chronicity, complexity and severity were compounded by multiple surgery which, because of his risk factors for severe chronic pain, had disappointing outcomes.
·Left brachial plexus injury and hyperexcitability dated from the surgical procedure on 23 May 2022. This has been important in the chronicity, severity and anatomical extension of the chronic pain disorder and in some of the secondary vascular features.
·The chronic regional pain syndrome (which does not have shortened notation, specifically not CRPS which refers to complex regional pain syndrome) evolved progressively from May 2022, and was influenced by impaired sleep, post-traumatic and other stresses, anxiety, depression and the other above mentioned psychosocial influences. The chronicity, severity and anatomical extent has been influenced by central nervous system mechanisms including central sensitisation and nociplastic contributions. The first mention of “CRPS” that I was able to determine was in early 2023.
·The psychiatric consequences to which he had been predisposed pre-injury evolved progressively in the weeks and months after the primary accident and were adversely affected by disappointing outcomes from multiple surgery, and especially the brachial plexopathy. A diagnosis of major depressive disorder was made, and I summarised above the psychosocial consequences of his injury which, as I mentioned, evolved progressively beginning in the early weeks and months post- accident.
·The avoidance/restrictive food intake disorder was diagnosed by Ms Claire Ward in her report dated 9 March 2023.
·Right thumb joint “instability” evolved very gradually, as I understand it during 2022. I am not aware of significant information about “right elbow tear”.[19]
Permanency of impairments
The disabilities related to chronic pain, impaired sleep, mental health, left wrist, sleep disorders are likely to be permanent while acknowledging that some improvement with further management and over time is likely. The nature of this chronic pain disorder interacting with impaired sleep and the psychological symptoms is complex, multidirectional and well-established. Furthermore, they are difficult to treat even in expert multidisciplinary pain management services.[20]
Further recommended treatment
The major symptom and principal cause of disability, impaired sleep and mental health problems (each of which is bidirectional with chronic pain) is this chronic regional (often extended) pain syndrome. He requires referral to an expert multidisciplinary chronic pain service and that will not be easy because of his geographic location and the relatively long waiting lists of major services such as Royal North Shore Hospital. For that reason, it is possible that he could be considered suitable for a period of inpatient management. There will be consideration of procedural interventions although they are very difficult considerations. There must be contemporaneous and coordinated management of pain and mental health, also potentially with a rehabilitation service which could be arranged locally. Currently, as mentioned above, he is simply having GP and clinical psychology management and that is not sufficient.[21]
Pain management plan
…I emphatically recommend referral to an expert pain management service. Even with optimal management, there will be significant permanency of his major pain and psychological symptoms.[22]
CONSIDERATION
[19] H32 p 408.
[20] Ibid.
[21] H32 pp 408-409.
[22] H32 p 409.
Impairment: paragraph 24(1)(a)
The Tribunal must be satisfied that the applicant has a disability attributable to an impairment. As stated by Mortimer J (as she then was) in Mulligan v National Disability Insurance Agency [2015] FCA 544:[23]
The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.
Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities extracted above) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act.
[23] at [51]-[52].
The respondent accepts that the applicant has physical impairments due to ongoing pain and restriction in his left wrist, left upper limb, right thumb, right elbow and chronic regional pain syndrome. The respondent also accepts that the applicant has psychosocial impairments due to MDD and GAD.
The respondent does not accept that the applicant’s avoidance/restrictive food intake disorder (ARFID) is an impairment. The applicant has an aversion to certain types of food, due to texture smell and taste, and that limits what he eats and drinks.[24] The respondent submits that a restriction in choices of food is not a restriction with eating or drinking. Therefore, there is no loss of function and no impairment.
[24] H39A-A22 p 7.
The respondent further submits that there is some evidence relating to the applicant suffering from PTSD. However, in the ‘summary chart’ contained in the applicant’s SOFIC,[25] the applicant lists the conditions on which he seeks access to the NDIS. He does not list PTSD. The respondent submits that because PTSD is not referred to, it should not form part of the applicant’s case.
[25] H1 p 19.
In the case of LPRK and National Disability Insurance Agency [2022] AATA 4428 at [61], Senior Member Buxton stated that:
The Respondent submitted that the Tribunal should ignore incapacity arising from the Applicant’s history of cannabis use, alcohol abuse and smoking because the Tribunal must consider only the incapacities for which access to the NDIS is “claimed.” An Applicant may elect not to focus on particular health issues, disabilities or impairment and, as a result, the evidence available to the Tribunal with respect to those may be insufficient to determine whether they give rise to impairment that meet the disability criteria. However, there is no requirement on a prospective participant to lodge a “claim” that particularises the way in which the disability criteria is met, and no basis upon which the Tribunal, exercising review jurisdiction, can ignore evidence before it that is relevant to the question whether the access criteria is met merely because an impairment demonstrated by that evidence has not been identified by the Applicant.
In this case, there is evidence that the applicant suffered from PTSD as well as ADHD,[26] however, the applicant elected not to focus on these disorders and as a result, there is insufficient evidence before the Tribunal to determine whether they give rise to impairments that meet the disability criteria.
[26] H37, H38, H39 pp 440-443.
Accordingly, on the evidence, the Tribunal, is satisfied that the applicant has a disability attributable to a psychosocial impairment due to MDD, GAD, chronic regional pain syndrome and hypersomnolence.
Further, on the basis of the evidence before the Tribunal, the Tribunal is satisfied that the applicant has a disability attributable to a physical impairment resulting from pain in the left wrist and left upper limb (extensor carpi ulnaris subluxation, triangular fibrocartilage, complex tear, ulnar carpal abutment), left brachial plexus pain, right thumb joint instability and right elbow tear as well as his chronic regional pain syndrome.
The Tribunal finds that the applicant does not have an impairment from ARFID on the basis that a restriction in the type of food the applicant eats is not an impairment.
Permanence: paragraph 24(1)(b)
Paragraph 24(1)(b) requires the Tribunal to be satisfied that the impairment is permanent, not the medical condition. As Mortimer J (as she then was) said in National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [86]:
The critical point is that “permanent” is used as an adjective in s 24(1) to the noun “impairment” (or in the plural, “impairments”). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.
With respect to the adjectives used in rule 5.4, in Davis, Mortimer J observed that:
·“known’” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment.[27]
·“available” should be understood as meaning available to a particular individual.[28]
·“appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo.[29]
·“remedy” should be understood to mean something approaching a removal or cure of the impairment.[30]
[27] Davis [137].
[28] Ibid [138].
[29] Ibid [137].
[30] Ibid [136].
The respondent accepts and the Tribunal so finds that the applicant has a permanent physical impairment in his left upper limb and left wrist as well as a permanent psychosocial impairment attributable to MDD and GAD. The Tribunal accepts the evidence of Dr Gehr that the applicant has a permanent impairment in his left upper limb and left wrist.[31] The Tribunal accepts the evidence of Dr Bisht that the applicant has a permanent impairment as a result of MDD.[32] Further, the Tribunal accepts the evidence of Dr Trmcic that the applicant has a permanent impairment as a result of GAD.[33]
[31] H3 pp 165-167.
[32] H3 pp 76-78.
[33] H3 pp 130-131 and H3 pp 186-188.
The respondent does not accept that the applicant has a permanent impairment resulting from his:
·chronic regional pain syndrome;
·Right thumb instability and right elbow tear;
·AFRID.
Chronic regional pain syndrome
In the applicant’s reply to the respondent’s final submissions, the following submission is made:
… The Applicant has a substantial and permanent disability, as a result of developing CRPS. Dr Champions reference to permanence is just that… The substantial nature of the condition drew emphatic advocacy from Dr Champion that the applicant engage in pain management and reconditioning physical programmes.[34]
[34] Applicant’s reply submissions lodged 23 December 2024 at [1].
In the applicant’s final submissions, the following is submitted:
… It is evident that the Applicant has engaged appropriately to have gained a basic level of self-care in a supported environment aided by adaptive equipment. He has not however felt ready to engage in the pain management, physical exercise and social engagement recommended for him.[35]
[35] Applicant’s final written submissions lodged 19 December 2024 at [3].
On the applicant’s own submissions, there is further treatment available to him, which is supported by the evidence of Dr Champion, Dr Manohar and Ms Couch. As stated above, Dr Champion emphatically recommended that the applicant be referred to an expert multidisciplinary chronic pain service such as Royal North Shore Hospital. Dr Champion accepts that the applicant’s pain and psychological symptoms may be permanent but considers it is conceivable that he could improve and that the impairment resulting from chronic regional pain syndrome may not be permanent.[36]
[36] H32 pp 409-410.
Dr Manohar offered the applicant a chronic pain program.[37] Ms Couch also considered the applicant would benefit from pain education and participation in a function focused program using principles of chronic pain management, function upgrading and pacing.[38]
[37] H29 p 373.
[38] H39A pp 11 and 16.
The applicant submits that he would like to undergo such treatment but he has not ‘felt ready’ to engage with it. In his evidence he said that his workers’ compensation insurer (EML) has not agreed to pay for the treatment and his claim in relation to that was not resolved. He also said that he had not sought to access a chronic pain service offered by the public health system or the Royal North Shore Hospital as recommended by Dr Champion.
It is clear from Dr Champion’s report that there is an overlap between the applicant’s pain, mental health and impaired sleep, which is why he requires treatment at an expert multidisciplinary chronic pain service. It is conceivable that all of the applicant’s impairments could be influenced or ameliorated by the different treatment modalities available at a multidisciplinary chronic pain service.
The Tribunal accepts that the applicant’s chronic regional pain syndrome is unlikely to be ‘cured’ by the recommended pain management service. However, when considering whether a particular impairment is, or is likely to be, permanent the Tribunal must consider whether the impairment might respond to treatment.[39]
[39] Kelly v National Disability Insurance Agency [2024] FCA 1462 at [61].
In Kelly v National Disability Insurance Agency [2024] FCA 1462, McEvoy J at [62] agreed with the submission made by the NDIA that:
…it cannot be accepted that it is repugnant to the Act for a decision-maker to have regard to the existence of services beyond the NDIS. The Act expressly provides that, in giving effect to its objects, regard is to be had (relevantly) to the need to ensure the financial sustainability of the NDIS (s 3(3)(b)) and the provision of services by other agencies, departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the NDIS (s 3(3)(d)).
Accordingly, there is further treatment available to the applicant and whilst that treatment may not cure the applicant’s pain, there is a good prospect that it will substantially relieve the impairment attributable to his pain. In the circumstances, the Tribunal finds that Rules 5.4 and 5.6 are applicable and the Tribunal is not satisfied that the applicant’s chronic regional pain syndrome is permanent.
Right thumb instability and right elbow tear
The evidence in relation to the applicant’s right thumb instability and right elbow tear is vague. No clear diagnosis has been made to explain the pain the applicant has experienced in these areas. Dr Champion reviewed a significant number of reports prepared in relation to the applicant including reports from two orthopaedic surgeons, Dr Diebold and Dr Gehr, who considered the symptoms of pain in the applicant’s right thumb and elbow. In his report, Dr Champion says:
Right thumb joint “instability” evolved very gradually, as I understand it, during 2022. I am not aware of significant information about “right elbow tear”.[40]
[40] H32 p 408.
Dr Champion opined in his report that the pain in the applicant’s right thumb and elbow may be influenced by his primary pain disorder (chronic regional pain syndrome). [41] If this is accurate the impairment suffered by the applicant in his right thumb and elbow may be relieved by receiving treatment from the multidisciplinary chronic pain service recommended by Dr Champion.
[41] H32 p 407.
In the absence of a firm diagnosis to explain the pain causing the impairment in the applicant’s right arm and elbow, the Tribunal cannot be satisfied that all treatment options have been explored. The Tribunal finds that rule 5.6 is applicable in that the impairment resulting from the pain in the applicant’s right thumb and elbow may require medical treatment before a determination can be made about whether the impairment is permanent or likely to be permanent.
AFRID
The Tribunal has determined that the applicant’s AFRID is not an impairment for the purposes of paragraph 24(1)(a) and therefore it does not need to determine the issue of permanency with respect to this condition.
Substantially reduced functional capacity: paragraph 24(1)(c)
As indicated, the respondent accepts that the applicant has a permanent physical impairment in his left upper limb and left wrist and a permanent psychosocial impairment resulting from his MDD and GAD. In addition to this, the Tribunal is required, under paragraph 24(1)(c) of the Act, to determine whether the applicant’s permanent impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
a)communication;
b)social interaction;
c)learning;
d)mobility;
e)self-care;
f)self-management.
The Tribunal is required to use the assessment tools, namely, the Rules and the Guidelines, to reach a conclusion as to whether or not the applicant has substantially reduced functional capacity to undertake one or more of the activities referred to in paragraph 24(1)(c). The Tribunal is required to assess the applicant’s functional capacity with respect to the bundle of tasks and actions forming the concept of those activities.[42]
[42] National Disability Insurance Agency v Foster [2023] FCAFC 11 at [65].
A person will not necessarily be deemed to have substantially reduced functional capacity because one task is unable to be completed without assisted technologies. The fact that an applicant cannot perform a particular task does not mean he/she is unable to participate “effectively or completely” in the activity prescribed by paragraph 24(1)(c).[43]
[43] Ibid [88]-[90].
The applicant gave evidence that whilst his children currently reside with their mother and he does not have any access to them, he is concerned about his capacity to potentially provide care for his children at some stage in the future. As noted in the case of Jalaudin and National Disability Insurance Agency [2023] AATA 448, that evidence is irrelevant and should not be considered by the Tribunal. In that case, Senior Member Goward stated, at [55]:
The Tribunal accepts that to define the extent of the Applicant’s reduction in mobility and self-care by including her caring responsibilities is not founded in the NDIS Act or Rules, which only identify the impact of an impairment on an Applicant’s self-care and self-management… Accordingly, the Tribunal finds that evidence relating to the Applicant’s capacity to meet her caring responsibilities is irrelevant to determining whether there is a substantial reduction in her mobility or self-care.
The Tribunal will now assess the applicant’s functional capacity to perform the activities referred to in paragraph 24(1)(c) by reference to the Guidelines.
Communication
The Guideline with respect to communication currently states as follows:
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.
The applicant has shown that he was able to communicate with the Tribunal and all of the doctors and health professionals who have assessed him. The Tribunal considered the very detailed ‘Appeal Letter’ prepared by the applicant.[44] This letter demonstrates that the applicant is able to write and express himself to a high standard. Accordingly, the Tribunal finds that the applicant does not have a substantially reduced functional capacity to undertake communication activities as a result of the permanent physical impairments in his left upper limb and left wrist, or the permanent psychosocial impairments attributed to his MDD and GAD.
[44] H3 pp 194-210.
Social interaction
The Guideline with respect to social interaction currently states as follows:
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.
The applicant has demonstrated an ability to interact socially. He resides with his mother, her partner and his brother. He is very close to his grandmother. She lives close to him and he visits her regularly. Ms Couch states in her report dated 24 October 2024 that the applicant “has his family around him and says he feels better since moving home. He can manage his relationships independently”.[45] She also states, “he is also now in receipt of a NSW companion card and intends to use this to increase his access to the community”.[46]
[45] H39A p 13.
[46] Ibid.
Further, as observed by the respondent in its final submissions, during cross examination, the applicant gave evidence that he:
·Earlier in 2024, attended a TAFE course twice a week, in person, in Orange. He was able to arrange a lift with another classmate from Bathurst to Orange. He also indicated that he interacted with his other classmates. He said it was difficult at first, but that eased when he made them aware of his disability.
·Whilst in Bathurst, his (then) wife developed a social circle with other parents, at daycare. The applicant interacted with those other parents.
·After the applicant moved from Bathurst to Brisbane, he was able to organise a share house via an online website. He went and met a prospective flatmate before moving in, and after he did move in, managed to live in the same premises with that person.
The Tribunal finds that the applicant does not have a substantially reduced functional capacity to undertake social interaction as a result of the permanent physical impairments in his left upper limb and left wrist, or the permanent psychosocial impairments attributed to his MDD and GAD.
Learning
86.The Guideline with respect to learning currently states as follows:
Learning – how you learn, understand and remember new things, and practise and use new skills.
In Dr Champion’s report dated 1 November 2023, he says:
I believe he has reasonable intellectual capacity and with better control of his symptoms and impairments, he could be receptive to and effective in learning new skills that might even be financially productive.[47]
[47] H32 p 409.
Further, as recently as March 2024, the applicant was participating in a photography course at TAFE in Orange. The applicant indicated that he did not complete the course because he ceased living in Bathurst.
The Tribunal finds the that the applicant does not have a substantially reduced functional capacity to undertake learning as a result of the permanent physical impairments in his left upper limb and left wrist, or the permanent psychosocial impairments attributed to his MDD and GAD.
Mobility
The Guideline with respect to mobility currently states as follows:
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.
Dr Champion states in his report of 1 November 2023 that the applicant’s “mobility is limited but he does not require aids”.[48] Ms Couch states in her report of 24 October 2024 that the applicant is independent in relation to walking, climbing stairs, transfers and bed mobility. She observed him walking unaided inside his home and on the concrete ground outside. She says he can walk up and down the steps that go from street level to the home. On a “bad” day, his lower limbs are impacted by CRPS and this can impact his walking tolerance.[49]
[48] Ibid.
[49] H39A p 5.
The evidence is that the applicant is capable of managing his own laundry, cooking, cleaning and shopping. Due to his current living arrangements, he does not have to do more. If required to do so, the applicant could not perform heavy cleaning tasks, cut up hard vegetables, do gardening or home maintenance.
In the case of Nika and National Disability Insurance Agency [2021] AATA 2127 at [248], Deputy President Meagher said:
The test is whether a person has substantially reduced functional capacity to undertake or participate in that activity, not simply whether or not a particular task or action commensurate with that activity is undertaken.
Taking into account the totality of what the applicant can do, the Tribunal is satisfied that the applicant participates effectively in the activity of mobility and does not consider that the applicant’s impairments result in substantially reduced functional capacity in mobility as a result of the permanent physical impairments in his left upper limb and left wrist, or the permanent psychosocial impairments attributed to his MDD and GAD.
Self-care
The Guideline with respect to self-care currently states as follows:
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.
As indicated by Ms Couch in her report of 24 October 2024, the applicant is independent in relation to grooming, bathing, dressing, toileting, medication and eating. He has limited food preferences but no impairment in relation to his ability to eat. The Tribunal has previously observed that in relation to self-care, a substantially reduced functional capacity to care for oneself “imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and wellbeing”.[50] The Tribunal finds that the applicant does not have ‘significant gaps’ in his capacity to maintain his personal health, safety and well-being. From this, it follows that the Tribunal is satisfied that the applicant does not have a substantially reduced functional capacity in self-care as a result of the permanent physical impairments in his left upper limb and left wrist, or the permanent psychosocial impairments attributed to his MDD and GAD.
[50] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [121] applied in VKFW and National Disability Insurance Agency [2024] AATA 1260 at [55].
Self-management
The Guideline with respect to self-management relevantly states as follows:
Self-management – 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.
Ms Couch states in her report dated 24 October 2024 that the applicant “reported he can manage his money independently” and further that the applicant “appears very organised and can contribute to managing the household”.[51] The Tribunal notes that the applicant was able to organise and move into a shared rental property in Brisbane and he enrolled and commenced a TAFE course in photography. The evidence supports a finding that the applicant has the cognitive ability to organise, plan, make decisions, look after himself, solve problems and manage his money. Accordingly, the Tribunal is satisfied that the applicant does not have a substantially reduced functional capacity in self-management as a result of the permanent physical impairments in his left upper limb and left wrist, or the permanent psychosocial impairments attributed to his MDD and GAD.
[51] H39A pp 9-10.
Does the applicant meet paragraph 24(1)(c)?
The evidence in this case goes no higher than establishing that the applicant would benefit from assistance in some aspects of social interaction and mobility, but it does not establish that he requires assistance in these areas of functionality. There is no doubt that the applicant undertakes some tasks with difficulty and it would be easier for him if he had some help. However, the Tribunal is unable to make a finding of substantial functional impairment in any relevant domain. The applicant has displayed that he is able to manage independently without support or with the assistance of commonly used household items to aid him physically.
As a result of these findings in relation to the activities of communication, social interaction, learning, mobility, self-care and self-management, the Tribunal also finds that Rule 5.8 is applicable and the applicant does not have substantially reduced functional capacity.
Does the applicant meet paragraphs 24(1)(d) and 24(1)(e)?
The Tribunal considers that the applicant would be assisted in his functional capacities if he engaged fully in the expert multidisciplinary chronic pain service that has been recommended for him. If he does so, he may find relief from his symptoms and improve his functional capacity. Whilst the Tribunal accepts that the applicant’s impairments currently affect his capacity for social and economic participation, the Tribunal does not find that he will require the support of the NDIS for his lifetime. Further, because the Tribunal finds that the applicant does not meet s 24(1)(c), the Tribunal is not obliged to go on to consider ss 24(1)(d) or (e).
Conclusion - disability requirement
For the reasons outlined above, the Tribunal has found that the disability requirements in section 24 have not been met.
Early intervention
The following is taken from the applicant’s final submissions:[52]
It is evident that the Applicant has engaged appropriately to have gained a basic level of self-care in a supported environment aided by adaptive equipment. He has not however felt ready to engage in the pain management, physical exercise recommended for him. It is submitted that the Applicant meets the criteria for early intervention section 21(1) and that enlivens section 25(1). The Applicant has a disability CRPS that is likely to be permanent that impacts on his mental health and his ability to engage in social activities. In order to enhance and maintain his current capacity and assist him to engage in pain management program(s), physical rehabilitative program(s) and importantly to socialise to improve and maintain his mental health.
[52] Applicant’s final written submissions lodged 19 December 2024 at [3].
In the applicant’s reply to the respondent’s final submissions, he states the following: [53]
What is clear is that the Applicant has utilised any assistance that he has been provided with to try to live as independent a life as is possible which is currently supported by his family and requests no more than to have the support that will assist him to manage what is a permanent and substantial impairment, CRPS.
….
It is submitted that there is enough evidence for the Tribunal to find that the applicant qualifies for early intervention support of about 15 hours per week as advocated by Dr [sic] Cleary.
[53] Applicant’s reply submissions lodged 23 December 2024 at [2] and [11].
Paragraph 25(1)(a) relevantly specifies that to meet the early intervention requirements a person must have “one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent”. Further, Rules 6.4 to 6.7 of the Rules with respect to section 25 mirror Rules 5.4 to 5.7 of the Rules relating to section 24.
First, at the hearing, counsel for the applicant made an application for the hearing to be adjourned on the basis that the evidence contained in the report from Mr Cleary (occupational therapist) was not current and could not be relied upon. However, in the applicant’s final submissions and reply to the respondent’s submissions, the applicant seeks to rely upon Mr Cleary’s report to support his claim for early intervention support of about 15 hours per week as advocated by Mr Cleary. As indicated above, based on submissions made by counsel for the applicant at the hearing that Mr Cleary’s report was not current and Mr Cleary had not assessed the applicant in his current living arrangements, the Tribunal decided not to rely upon Mr Cleary’s evidence. The Tribunal confirms that it has made no assessment as to the veracity or currency of Mr Cleary’s evidence. The Tribunal prefers the evidence of Ms Couch, on the basis that she has assessed the applicant in his current living arrangements. Ms Couch does not recommend 15 hours of support per week for the applicant.
Secondly, the Tribunal has concluded that the applicant’s chronic regional pain syndrome is not permanent and does not satisfy the disability requirements in section 24. Therefore, it follows that any impairments resulting from the applicant’s chronic regional pain syndrome are not permanent within the meaning of the Act and the Rules and therefore he does not meet the early intervention requirements in section 25.
No submissions were made by the applicant that he met the early intervention requirements relating to the conditions that have been accepted as permanent (left wrist and left upper limb pain, MDD and GAD). In relation to those conditions, the Tribunal has considered the relevant evidence and determines that he does not meet the early intervention requirements because there is insufficient evidence to indicate that early intervention supports are likely to benefit the applicant with respect to those permanent impairments by achieving one or more of the outcomes listed in paragraph 25(1)(c). Further, any supports sought in relation to the accepted permanent impairments are not considered to be early in the trajectory of those impairments. As stated by Dr Champion in his report dated 1 November 2023, the primary injury to the left wrist occurred on 24 October 2018 and the psychiatric consequences (major depressive disorder and generalised anxiety disorder) evolved progressively, beginning in the early weeks and months post that injury.[54]
[54] H32 pp 407-408.
Thirdly, the Tribunal determines that subsection 25(3) is applicable in this case. It is recommended by Dr Champion, Dr Manohar and Ms Couch that the applicant should participate in a multidisciplinary pain management program, including a referral to an exercise physiologist to assist with his deconditioning. The applicant accepts this. Ms Couch did give evidence that the applicant would be able to access an exercise physiologist via the public health system, on referral from his GP. That referral would provide him with around five to six sessions, funded by Medicare. If the applicant required more sessions, there was no evidence that he could not arrange that support or treatment for himself. Ms Couch also gave evidence that the program the applicant needs to attend may be funded via another source, namely his workers’ compensation insurer, EML. The applicant gave evidence that he is pursuing funding for the chronic pain management program that has been recommended for him through his workers’ compensation claim. That claim is ongoing. The Tribunal determines that the funding of pain management and reconditioning physical programs is not most appropriately funded through the NDIS and is more appropriately funded or provided by other services.
The early intervention requirements are cumulative and the applicant’s failure to meet one or more of those requirements must lead to the conclusion that he does not meet the early intervention requirements contained in section 25.
DECISION
For the above reasons, the applicant does not meet either the disability requirements contained in section 24, or the early intervention requirements specified in section 25, as a result, the applicant does not currently qualify for access to the NDIS and the decision under review is affirmed.
112. I certify that the preceding 111 (one-hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Clues
113. ........................[SGD].........................
114. Associate
115. Dated: 7 February 2025
116.
Dates of hearing: 16, 17 and 18 December 2024 Counsel for the Applicant: Ms Anne Gibbons Solicitors for the Applicant: MIC Lawyers Counsel for the Respondent: Mr Nick Swan Solicitors for the Respondent: National Disability Insurance Agency
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