Al Rifai and National Disability Insurance Agency

[2023] AATA 2065

Al Rifai and National Disability Insurance Agency [2023] AATA 2065 (14 July 2023)

Division:                  GENERAL DIVISION

File Number(s):      2021/1875

Re:Taha Al Rifai

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President Antoinette Younes

Date:14 July 2023

Place:Sydney

The Tribunal affirms the decision under review

.................................[SGD].......................................

Deputy President Antoinette Younes

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access criteria – disability requirements – degenerative disc disease – sleep apnoea, prostatic hypertrophy, meniscectomy, osteoarthritis, type II diabetes, depression and anxiety – whether the impairments are, or likely to be, permanent – whether the impairments result in substantially reduced functional capacity – whether the Applicant is likely to require support under the scheme – decision under review affirmed

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

CASES

MKYV and National Disability Insurance Agency [2022] AATA 115

Mulligan v National Disability Insurance Agency (2015) 233 FCR 201

National Disability Insurance Agency v Davis [2022] FCA 1002

National Disability Insurance Agency v Foster [2023] FCAFC 11

Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179

Rooney and National Disability Insurance Agency [2021] AATA 3523

SECONDARY MATERIALS

National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS (Web Page) < FOR DECISION

Deputy President Antoinette Younes

14 July 2023

BACKGROUND

1. On 29 March 2021, the applicant lodged his application with the Tribunal seeking review of a decision of a delegate of the CEO of the National Disability Insurance Agency (the respondent) dated 3 March 2021. That decision determined that the applicant did not satisfy the requirements for access to the National Disability Insurance Scheme (the Scheme) set out in sections 22 to 25 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act). 

2. In his access application, the applicant listed as a primary disability of degenerative disc disease, secondary sleep apnoea, prostatic hypertrophy, meniscectomy, osteoarthritis, type II diabetes, depression and anxiety. The applicant requested assistance from a physiotherapist, psychologist, occupational therapist, and support worker.

3. In its Statement of Facts, Issues and Contentions (SOFIC) dated 4 November 2022, the respondent accepted that the applicant meets the following requirements:

   (a) the age access requirements (s 22);

   (b) the residence access requirements (s 23);

   (c) the requirement that he has a disability that is attributable to, relevantly, physical impairments (s 24(1)(a)); and

   (d) the requirement that the impairments affect his capacity for social or economic participation (s 24(1)(d)).

4. The respondent however contended that the applicant does not satisfy the balance of the disability requirements (ss 24(1)(b), (c) and (e)). 

   LEGISLATION

5. In order to become a participant in the Scheme, the applicant must satisfy the access criteria set out in subsection 21(1) of the Act, 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).

6. There is no dispute that the applicant satisfies the age requirements and the residence requirements. The applicant will meet the access criteria if he satisfies either section 24 (disability requirements) or section 25 (early intervention requirements).

7. Section 24 of the Act provides as follows:

   (1)A person meets the disability requirements if:

   (a)    the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or 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.

8. Section 25 of the Act concerns the early intervention requirements.

9. The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation.

10. The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[1] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (the Operational Guideline).[2]

    [1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179.  

    [2] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) <>

    The following material is before the Tribunal:

    ·Statement of Lived Experience of the applicant.[3]

    [3] Ex F.

    ·An undated letter from his support coordinator, Ms Sandra Younis, referring to the applicant’s conditions and confirming that the applicant is receiving services from disability providers privately.[4]

    [4] A1, 210, Ex L.

    ·Report of Dr Adil Al-Ajakhi, Otolaryngologist, Iraq concerning an operation of uvulopalatopharyngoplasty the applicant underwent in September 201[5] in Baghdad, in relation to, among other things, sleep apnoea. [6]  

    [5] T11, 37, Ex K.

    [6] Ex E.

    ·    Report of Consultant Surgeon, Dr Faruque Riffat dated 2 May 2017 referring to the sleep apnoea.[7]

    [7] Ex A.

    ·    Patient Health Summary from Clyde Street Medical Centre printed on 8 June 2021 in relation to the applicant’s conditions and current medication.[8]

    [8] Ex C.

    ·    Letter from Dr Ala Almansur, General Practitioner, dated 12 June 2021 confirming the diagnoses of degenerative lumbar disc disease, chronic knee pain, right shoulder pain, sleep apnoea, and right rotator cuff syndrome.[9]

    [9] Ex B.

    ·    Report of Kasim Abale, Psychologist dated 18 February 2022.[10]

    [10] Ex G.

    ·    Letter of Associate Professor Kristina Kairaitis, Respiratory Physician, dated 19 January 2022, referring to the applicant’s diagnosis of sleep apnoea.[11]

    [11] Ex H.

    ·Letter of Instructions and report of Mr Charlie Rahme, Occupational Therapist, dated 3 June 2022.[12]

    [12] Ex I, J.

11. As well as the above material, the Tribunal has before it, the T-documents,[13] bundle of supplementary evidence,[14] respondent’s emails bundle,[15] and photographic evidence.[16]

    [13] Ex K.

    [14] Ex L.

    [15] Ex M.

    [16] Ex N.

    Statement of Lived Experience

    13.On 23 December 2021, the Tribunal directed the applicant to identify the conditions on which he relies in seeking access to the Scheme. Although the applicant has not provided written confirmation of the conditions on which he relies, in his Statement of Lived Experience (SLE), he advised that the conditions that impact him most are his knee, arm and shoulder conditions. The applicant identified as the ‘primary conditions’ his knee, arm and shoulder as being the medical conditions that have the most impact on him. He described the main symptoms that have the most impact on his life as being his daily walks.  In describing how the primary conditions impact on his ability to undertake day-to-day tasks, he replied “my knee doesn't allow me to walk. It makes my day to day actions harder, but thankfully my wife helps me. My arm doesn't allow me to pick up heavy things. something above 2kg I won't be able to carry.” 

12. In terms of what a good day looks and a bad day looks like, the applicant explained “a good day would be when my children would come and help me with my day to day things. I feel happy with them around. My average day would be just watching tv and having lunch.  A bad would be when I try to help around the house and I’m unable, I would feel useless and depressed all day.” 

13. The applicant indicated that his wife helps him with his travels, including driving him around to appointments. He explained that although he has a walking stick, he rarely uses it and instead he walks slowly and use “things around [him] to hold on for support.” He indicated that when he sits on a chair, he needs some assistance getting back up, and that he can normally shower himself, but at times requires some assistance. He can feed himself, wash his hair, get dressed but occasionally needs help.

14. The Applicant was asked “Can you explain, in specific detail, if, and how, your primary conditions impact on the following: If you get assistance with any of the above tasks, please explain why you need the assistance, what that assistance entails, and who provides you with that assistance.” The Applicant responded:

    “… grocery shopping at a supermarket…I often avoid doing that, my children or wife often go instead of me… my wife often cleans the house…my wife often does the cooking…my wife usually does the laundry…my children when they come to visit, they usually do the lawn and garden…I’m able to take my own medication…my children often help me out with managing my finances needs…There isn't much to my day for me to organize or plan anything, but it's usually my wife or children…my wife is usually the one taking care of me. I really like having someone I trust around me.”

15. The applicant indicated that the property in which he lives has not been modified to accommodate his impairments, that family members come to visit once a week, that he does not go to his friend’s homes, that he does not go out with his friends, and that his wife takes care of their son.

16. The material before the Tribunal indicates that the applicant has had a number of ailments for which he received treatment, as outlined below. Letters from the applicant’s General Practitioner (GP) Dr Almansur dated 11 November 2020 and 12 June 2021 state that the applicant attends the medical centre regularly and that he has a ‘known history of Degenerative lumbar disc disease, diabetes, Right Rotator cuff syndrome, sleep apnoea and chronic bilateral knee pain’ and ‘his chronic back pain, Right shoulder pain and bilateral knees pain causing permanent disability and difficulties for him.’[17]

    [17] T18, 51, Ex K; A5, 216, Ex L.

17. The applicant’s clinical history is as follows:

    I.In 2016, the applicant injured his right rotator cuff and there is a report of a right shoulder X-ray and ultrasound dated 16 March 2016.[18] He was treated by a physiotherapist for this injury. In June 2016, Dr Daniel Rahme, an orthopaedic surgeon, recommended non-operative treatment for the applicant’s shoulder.[19] The applicant told Mr Charlie Rahme, the Occupational Therapist (OT), that he has had two cortisone injections in his shoulder, most recently in October or November 2021, and that he had experienced some improvement post-injection. The applicant also found benefit from the use of a TENS machine.[20]

    [18] T5, 29, Ex K.

    [19] S5, 8, Ex L.

    [20] S29, 124, Ex L.

    II.An MRI performed in July 2016 of the applicant’s left knee revealed that the applicant had a torn medial meniscus.[21] In August 2016, the applicant had a cortisone injection in his left knee.[22] A report of Dr Daniel Rahme to the applicant’s general practitioner Dr Ala Almansur dated 10 February 2017 states that the applicant had bilateral knee arthroscopies with medial meniscectomies and chondroplasty in late January 2017.[23] In February 2017, Dr D Rahme reported to the applicant’s GP that the applicant is two weeks post bilateral knee arthroscopies with medial meniscectomies and chondroplasty, that his wounds have healed well, that he has a good range of motion from 0 to 120. Bilaterally, he has moderate pain but this was improving and that over the next month, and that his symptoms will settle.[24]

    [21] S6, 10, Ex L.

    [22] S7, 12, Ex L.

    [23] T8, 32, Ex K.

    [24] S11, 16, Ex L.

    III.The applicant’s right knee was X-rayed in April 2021 and the report states that there is a moderate-grade osteoarthritis of medial femorotibial compartment.[25] He consulted Dr D Rahme on 16 September 2021.[26] An X-ray report dated 22 September 2021 noted that there is moderate ‘triconnpartmental degenerative change of both knees.’[27]

    [25] S14, 44, Ex L.

    [26] S10, 15, Ex L.

    [27] S22, 60, Ex L.

    IV.A CT report dated 7 February 2018[28] indicated that ‘there is subtle L5/S1 anterolisthesis [forward slippage of the vertebra] secondary to severe right greater than left facet joint arthropathy [an arthritic condition of the facet joints of the spine]. New right existing L5 nerve root impingement.’

    [28] T12, 39, Ex K.

    V.Dr Hassan reported on 17 April 2018 that the applicant presented with left lateral thigh numbness. Dr Hassan reported that he reviewed the CT of the lumbosacral spine and there was no evidence of disc bulge or degenerative change at the upper lumbar level. He however referred to the existence of mild degenerative changes but noted that the applicant appeared well, (apart from his raised Body Mass Index), that his gait was normal, that he has ‘typical left meralgia paraesthetica… no evidence of radiculopathy.’[29] An X-ray report dated 17 August 2021 concluded that ‘degeneration exists between multiple vertebrae along the spine.’[30] The results of this X-ray appear to have been given to the applicant on or about 26 August 2021 and he was advised to undertake regular exercise, physiotherapy and to see a chiropractor.[31]

    [29] T14, 41, Ex K.

    [30] S16, 46, Ex L.

    [31] S12, 42, Ex L.

    VI.A report of an X-ray of the applicant’s left elbow dated 20 August 2020 concluded the existence of mild osteoarthritic changes involving the ulnotrochlear articulation and that an ultrasound could be considered to assess for pathology of the common flexor origin as a potential explanation for the medial pain.[32]

    [32] T15, 42, Ex K.

    VII.The applicant has been diagnosed with, or reported to have exhibited symptoms of, Post Traumatic Stress Disorder (PTSD), anxiety and depression.[33] Mr Abale on 18 February 2022, reported that the applicant demonstrated symptoms of depression, sleeping difficulties, anxiety, PTSD, insomnia and that he had attended eight appointments in 2016 and 2018 but is not on medication for those ailments.[34]

    [33] T9, 33-34, Ex K; S2, 3-4, Ex L; S1, 1, Ex L; S3, 5, Ex L; S18, 50, Ex L.

    [34] Ex G.

18. The applicant’s Patient Health Summary dated 8 June 2021 refers to the following ‘active past history’ and ‘permanent conditions:’[35]

    [35] S15, 45, Ex L.

    ·28/07/2015 Diabetes Mellitus

    ·28/07/2015 Hyperlipidaemia (high cholesterol]

    ·28/07/2015 Hypertension

    ·28/07/2015 Overweight

    ·08/06/2021 Bilateral Knee osteoarthritis

    ·08/06/2021 Moderate, Chronic Right Rotator Cuff tear

    ·08/06/2021 Mild Lumbar disc prolapse

    21.Essential Care Family Medical dated as at 30 August 2022 headed ‘complete record’[36] lists the applicant’s past medical history as degenerative disc disease, diabetes mellitus - Type II, hypertension, rotator cuff syndrome (Right), sinusitis – allergic, sleep apnoea, meniscectomy - endoscopic (Bilateral) and prostatic hypertrophy.

    [36] S26, 64, Ex L.

    FINDINGS and REASONS

    ISSUES

19. The respondent contends that the decision under review should be affirmed, as the applicant does not satisfy ss 24(1)(b), (c) and (e) or s 25, which provide:

    (a)the impairments are, or are likely to be, permanent (section 24(1)(b));

    (b)the impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the activities of communication, social interaction, learning, mobility, self-care, or self-management (section 24(1)(c));

    (c)that the applicant is likely to require support under the scheme for his lifetime (section 24(1)(e)); and

    (d)the early intervention requirements (section 25).

20. A distinction needs to be made between an impairment and a condition; the question for the Tribunal is whether the applicant’s impairments are permanent or likely to be permanent, not his conditions or his diagnoses. 

21. An ‘impairment’ within s 24 ‘is generally understood as involving the loss of, or damage to a physical, sensory or mental function.’ Mortimer J in Mulligan v National Disability Insurance Agency,[37] observed with respect to s 24(1)(a):

    [37] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at 212 [51].

    Some general observations should be made about these matters. 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…is generally understood as involving the loss of or damage to a physical, sensory or mental function.

22. The respondent accepted and the Tribunal finds that the applicant’s conditions of degenerative disc disease, osteoarthritis (of his knees and cervical spine) and right rotator cuff syndrome, cause a loss of or damage to his physical function and a reduction in his ability to perform physical activities, and are a disability within the meaning of s 24(1)(a). The Tribunal is satisfied on the evidence that the applicant has a disability attributable to a physical impairment. He has also been diagnosed with or reported to have exhibited symptoms of PTSD,[38] anxiety and depression.[39]

    [38] T9, 34, Ex K.

    [39] T9, 33-34, Ex K.

23. The respondent contended that the evidence does not support a conclusion that the applicant has an impairment to his mental functioning attributable to psychiatric conditions arising from his diagnoses of or his exhibiting symptoms of PTSD, anxiety and depression.  The respondent referred to Mr Charlie Rahme’s report that the applicant told Mr Rahme that ‘his mental health does not affect him on a day-to-day basis but he has noticed experiencing some difficulties with concentration/focus….’ [40] The respondent argued that it does not appear that the applicant has any reduced capacity to engage in activities of daily living due to his mental health condition or conditions. 

    [40] Ex G.

24. In relation to s 24(1)(b), the respondent contended that the issue for the Tribunal is whether the applicant’s impairments are permanent not, in this case, his degenerative conditions. The respondent drew attention to the Operational Guideline that provides guidance in relation to s 24(1)(b), namely:

    Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it. Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments which are [NDIS (Becoming a Participant) Rules rr 5.4, 6.4]:

    ·    known and available

    ·    appropriate for you and your impairment

    ·    evidence-based – that is, there’s proof they are likely to be effective.

    …

    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 [NDIS (Becoming a Participant) Rules rr 5.6, 6.6].

    …

    For degenerative impairments, or those that get worse over time, we consider them permanent if treatment isn’t likely to help or improve the impairment’s effects [NDIS (Becoming a Participant) Rules rr 5.7, 6.7.]

    …

    7.4 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.

    7.5 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).

    5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

    28.Relevantly, in National Disability Insurance Agency v Davis,[41] Justice Mortimer considered the meaning of ‘permanent’ in s 24(1)(b). At paragraph 80, reflecting the language of the legislation and contrary to the policy emphasised above at 5.7, the adjective ‘permanent’ attaches to the impairment. In Davis, her Honour held that ‘the correct meaning of “permanent” in s 24(1)(b) is “enduring.”’[42] This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[43] Her Honour stated that 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.

    29.The central question for the Tribunal is whether the impairment(s) experienced by the applicant (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the Act on an ongoing basis. Sections 29 and 30 of the Act make it clear that the intention of the Scheme is that once a person meets the access requirements, then subject to certain specific exceptions, the person will remain supported by the Scheme through their lifetime.

    30.The applicant’s diagnosed conditions affecting his knees, spine and right shoulder cause impairments to which rule 5.7 of the Access Rules is to be applied. The test for permanence prescribed by the exclusionary rule in r 5.7 ‘provides for that impairment to be unlikely to be improved by medical or other treatment.’ The respondent contended that ‘the concept that an impairment may “improve” differs significantly from the concept that it may be remedied (or substantially relieved).’[44]

    Report and oral evidence of Mr Charlie Rahme (OT)

    [41] National Disability Insurance Agency v Davis [2022] FCA 1002.

    [42] National Disability Insurance Agency v Davis [2022] FCA 1002 [85].

    [43] National Disability Insurance Agency v Davis [2022] FCA 1002 [85].

    [44] MKYV and National Disability Insurance Agency [2022] AATA 115 at [119].

1. Mr Rahme has been briefed by the respondent. He provided a comprehensive report and he gave evidence. In summary, in his report dated 3 June 2022,[45] Mr Rahme indicated as follows:

   [45] Ex J.

   a)The applicant is able to communicate effectively with others. He does not have impairments based on his disabilities that impact his independence with communication. 

   b)There were no reported examples of matters that would impact on Mr Al Rifai’s social interaction with others. It is noted that he has mental health conditions however there is little relevant clinical information or evidence of active mental health treatment to establish any impacts on social interactions not self-reported.

   c)The applicant reported that his mental health “does not affect him on a day-to-day basis” but he has noticed experiencing some difficulties with concentration/focus, for example after reading half a page, he finds he has lost comprehension of what he has read. He finds that at times he has difficulty focussing on tasks. This may have an impact on him from new learning particularly in formal learning situations. He would be requiring learning concessions, training and learning support to adapt to reported deficits.

   d)The applicant does not have any significant cognitive or any intellectual impairment impacting basic new learning apart from some potential impact with formal new learning such as training courses. On a day to day basis, he does not in this regard require any support in the form of assistance or assistive technology. The applicant is not requiring any current specific support or assistive technology for new learning.

   e)The applicant is able to mobilise on his own without the use of a walking aid. However, due to his right knee he has an abnormal gait and is limited in the distance he can walk. He has capacity to slowly manage up to one light of steps infrequently if handrails are provided. He does not require a mobility aid but does require some minor home modifications, that is handrails to the rear steps of his property. Personal assistance is not required.

   f)The applicant’s presentation on the day of the assessment was not totally consistent with medical documentation reviewed and the nature of his condition. In particular, his right shoulder and right knee conditions appear to be clinically and functionally more disabling than based on medical information. However, there was no current medical information. The applicant requires specialist assessment for his right shoulder, right knee and back condition to establish need for treatment intervention and active-based rehabilitation aimed at improving his function. The applicant’s past medical information a few years ago suggests he walked with normal gait and his main problem was his left knee. He currently presents with significant functional limitations due to his right knee which does not appear to have been recently assessed or appropriate treatment sought. His right shoulder movements are significantly restricted and a more active approach to treatment needs to be considered. The applicant is fear avoidant of activity and would benefit from physical conditioning. 

   g)The reduced functional capacity is likely to not represent his maximum potential capacity and further improvements are likely with appropriate treatment/rehabilitation assessments.

   h)The applicant is assessed as being independent in all personal care tasks.  He may however benefit from equipment to facilitate ease of toilet transfers such as an over toilet frame or raised toilet seat. He does not currently have an aid to facilitate ease of safe and independent toilet transfers but manages to do it independently with some difficulty.

   i)The applicant would benefit from further treatment and active rehabilitation intervention to improve his function. He does not have a cognitive or intellectual impairment and based on his conditions is unlikely to have incapacity for making decisions for himself, managing his finances, problem solving and taking responsibility for himself. He does not require any assistance for self-management tasks. He is able to make appointments independently. His only limitation in making appointments is related to his limited command of English. He may have limitation in attending appointments should he be unable to drive due to poor CPAP compliance. Therefore, he would rely on his wife to take him to appointments.

2. In oral evidence, the applicant was asked about the various records about his knees, spine, and shoulder. He mentioned discussing the possibility of a knee replacement with Dr Almansur and gave evidence that he is having ongoing physiotherapy around five times a year for all of the impacted body parts. The applicant referred to discussions with his GP about matters such as having injections for his knees, wearing a knee brace or bandage, and taking tablets and using creams. He suggested that the doctors had recommended weight loss which would be of benefit to his knee pain. He had seen a dietician, Ms Hanna in the past but is not seeing a dietician currently. He is not on any specific diet, but is receiving Ozempic injections for diabetes and weight loss.

3. In oral evidence, in relation his opinion that the applicant’s reduced functional capacity is likely to not represent his maximum potential capacity, and further improvements are likely with appropriate treatment-rehabilitation assessments, Mr Rahme stated:

   “MS HOOPER: Mr Rahme, the tribunal has a copy of your report and has marked it exhibit I.  At page 18 of your report, you’ve made a particular statement which I’m going to read out, so it can be interpreted, and then I’ll ask you a question about it.  So this is at page 18 about halfway down the page, you’ve written, ‘Mr Al Rifai requires specialist assessment for his right shoulder, right knee, and back condition.  To establish need for treatment intervention, an active-based rehabilitation aimed at improving his function’.  Starting with specialist assessment, what specialist qualifications would someone need to have to undertake that assessment?‑‑‑

   A: Well, where I’ve referred to specialist assessment, I’m referring to other than a general practitioner consultation.  However, the GP is the qualified practitioner to determine the appropriate specialist.  And my meaning with that is that it could be an orthopaedic surgeon, a sports physician, or a physiotherapist. And in that situation, I particularly, at least, thinking he might benefit from an assessment by a physiotherapist. 

   MS HOOPER: And are you able to say what that assessment by the physiotherapist would include or comprise of?

   A: In respect to the right knee, I raised it because the medical evidence that was provided to me suggested that Mr Al Rifai’s knee function and mobility was better than what he currently, at the date of assessment, presented with, and there had been no recent active treatment or any medical evidence that I could find in the documents.  And despite the diagnosis of degenerative changes, I thought he would benefit functionally from an assessment looking specifically at his mobility and gait.[46]

   …

   MS HOOPER:  So I’m asking Mr Rahme, would he regard that description that Mr Al Rifai gave as sufficient for physiotherapist intervention?

   A: My background is an occupational therapist, so I believe a physiotherapist is more appropriately qualified to say whether there’s adequate assessment and treatment in respect to physiotherapy treatment. If I could add to my previous question, I mentioned specifically the right knee.  The other two concerns I had that potentially a physio assessment was the back condition because at the time of the assessment, Mr Al Rifai mentioned he was wearing a back brace all the time.  And my ‑ ‑ ‑

   MS HOOPER: And what – sorry, go ahead?

   A:  My opinion was that he would benefit from physiotherapy advice and education around the regime of wearing a back brace, as much medical evidence suggests avoiding wearing back braces all day.

   MS HOOPER: In the quote that I read out before, you used the words ‘treatment intervention’ in the context of established need for treatment intervention.  Can you explain what you mean by treatment intervention for each of Mr Al Rifai’s physical conditions, that is, knees, back, shoulder?

   A: If I can start with the right shoulder. The reason for right shoulder was there was a very low capacity for lifting and carrying, even below shoulder height, and thought some advice to ensure Mr Al Rifai has a good home exercise program may be beneficial for him. In terms of the right knee, I felt, as I mentioned earlier, the symptoms and his function had deteriorated if I compared them based on the medical I had reviewed, which was a little older, and I thought assessment for some treatment intervention would be appropriate. In terms of the back condition, as I’ve previously mentioned, I was a bit concerned about the brace wearing regime, whether that being appropriately advised by a medical specialist or a physio as to appropriate regime to wearing that brace, and part of treatment is sometimes just giving someone some advice about how to better self-manage a chronic condition.

   MS HOOPER: Earlier in your evidence you referred to the role of the GP in identifying appropriate specialists. Mr Al Rifai has two GPs who he sees depending on whoever is available. They are at different locations, different practices.  Mr Al Rifai wasn’t sure, in his evidence yesterday, that they knew about each other.  Would it be important, or not important, for Mr Al Rifai’s two GPs to know of one another and to work together?

   A: It’s, I think, probably a difficult question in terms of there are various scenarios where it would be important, particularly if one is prescribing treatment that may interfere with another treatment, for example, medication. But this probably falls out of my area of expertise, as I’m not a medical practitioner. But I would think, if not they were aware of each other, at least the patient needs to be fairly communicative around what treatment has been prescribed by the other when seeing another GP.”[47]

   [46] Day 2 Transcript, 56, [5]-[25].

   [47] Day 2 Transcript, 57-58, [5]-[45].

4. It is evident that Mr Rahme expressed the opinion that further assessment and treatment intervention would be appropriate. Mr Rahme, in his report[48] and in his oral evidence, indicated that the applicant needs a specialist assessment for each of his impacted body parts, and that his current level of functional capacity, is not likely to represent his maximum level of capacity. Mr Rahme stated that the applicant’s current level of functional capacity is not likely to represent his maximum potential capacity, and further improvements are likely with appropriate treatment or rehabilitation assessments. Mr Rahme stated that appropriate specialists would be identified in the first instance by the applicant’s GP, and that those specialists could include an orthopaedic surgeon, a sports physician, and/or a physiotherapist. Mr Rahme considered a physiotherapist being particularly relevant for the back, shoulder, and knees.

   [48] Ex I.

5. The clinical evidence before the Tribunal, indicates that for the right knee, Dr Almansur records refer to painkillers, physiotherapy, the use of a knee guard, steroid injection, and total knee replacement. [49] Immediately after the applicant’s surgery in 2017, Dr D Rahme, referred to low impact exercise and weight loss.[50] In relation to the spine, the records of Dr Abdullah, the applicant’s other GP, referred to regular exercise, physiotherapy, and seeing a chiropractor, for the cervical spine, or his neck.[51] Dr Almansur referred the applicant to a physiotherapist, Rehab Solutions Australia, for his spinal condition.[52] As far as the right rotator cuff, or his right shoulder, the records of Dr Almansur indicate that the shoulder improved with a steroid injection.[53] In November 2020, Dr Almansur requested a further ultrasound, and another steroid injection of the shoulder, if indicated.[54] In relation to the right shoulder, Dr Almansur referred to pain medication and physiotherapy.[55]

   [49] S26, 71-72, Ex L.

   [50] S11, 16, Ex L.

   [51] S12, 42, Ex L.

   [52] S26, 96, Ex L.

   [53] S26, 78, Ex L.

   [54] S26, 79, Ex L.

   [55] S26, 79, Ex L.

6. For the psychological conditions, the evidence of Mr Abale, Psychologist, is that the applicant is receiving ongoing treatment for those conditions, including cognitive behavioural therapy and exposure therapy.[56] The applicant stated that his sessions Mr Abale, were helpful in managing his mental health.

   [56] Ex G.

7. The applicant gave evidence that he wears a back brace. Mr C Rahme expressed concerns about the frequency or consistency of usage of the back brace. The applicant gave evidence that although the physiotherapist does not treat his conditions, it helps with the pain. He gave evidence that the two cortisone injections had helped with pain, as well as the other medications which he takes with some assistance from his wife.

8. The applicant was specifically asked during the hearing about what he had done after the agency’s decision in March 2021. The applicant did not recall seeing any orthopaedic surgeon. He gave evidence that he is seeing a specialist(s) in July 2023, for a sinus condition and the level of haemoglobin in his blood which may concern an iron deficiency.  There is no evidence of any impairment arising from either of those two matters, or that the impairment is permanent.

9. The Tribunal refers to the assertions of GPs, Dr Abdullah[57] and Dr Almansur[58] that the applicant’s conditions are permanent. The Tribunal agrees with the respondent’s submissions that there is no indication as to what they meant by ‘permanent,’ or that the GPs had made the comment by reference to the applicable law and policy that the Tribunal must apply. In any case, the GPs say that it is the conditions that are permanent, whereas the issue for the Tribunal is whether the impairments are permanent. In light of those observations, the Tribunal gives limited weight to the GPs’ comments. The Tribunal found Mr C Rahme’s report to be thorough and comprehensive. He came across as being a skilled competent professional who gave evidence in a fair and measured manner. As such, the Tribunal gives significant weight to Mr Rahme’s evidence and conclusions.

   [57] Ex C.

   [58] Ex B.

10. In closing submissions, Counsel for the respondent reiterated rule 5.7 of the Access Rules, which is specifically concerned with degenerative conditions and the relevant threshold. Counsel referred to the relevant part of the Operational Guideline by stating that ‘for degenerative impairments, or those that get worse over time, we consider them permanent if treatment isn’t likely to help or improve the impairment’s effects.’ [59] Counsel referred to the case of MKYZ,[60] which states:

    However, the test for permanence prescribed by Participant Rule 5.7, that is relevant to the Applicant’s chronic pain, provides for that impairment to be unlikely to be improved by medical or other treatment.  The concept that an impairment may “improve” differs significantly from the concept that it may be remedied (or substantially relieved).

    [59] S30, 163, Ex L.

    [60] MKYV and National Disability Insurance Agency [2022] AATA 115.

11. In consideration of the evidence as a whole, the Tribunal is not satisfied that there are no appropriate available treatments likely to improve the applicant’s physical impairments. The evidence shows that there is potential for further medical treatment and review. The evidence shows that the applicant is having infrequent physiotherapy assessment and support, he is using his TENS machine, and wearing support braces. However, it is clear that no orthopaedic surgeon, or other relevant specialist, has reviewed his physical impairments, in the last several years. The Tribunal is satisfied that the evidence does not support a finding that the applicant’s physical impairments are permanent. Therefore the Tribunal finds that s 24(1)(b) of the Act is not met.

12. In relation to s 24(1)(c) of the Act, the issue of substantially reduced functional capacity, the Tribunal observes that r 5.8 of the Access Rules provides that in certain circumstances a person will be taken to have substantially reduced functional capacity, and that includes where someone is unable to participate effectively or completely in an activity without home modifications. Rule 5.8 states that:

    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.[61]

    [61] T23, 72, Ex K.

13. The Operational Guideline[62] is relevant to this issue. Among other things, the Operational Guideline states:

    Your impairment substantially reduces your functional capacity if you usually need disability specific supports to participate in or complete the above tasks [NDIS (Becoming a Participant) Rules rr 5.8(a), (c)].

    These disability-specific supports include:

    ·     a high level of support from other people, such as physical assistance, guidance, supervision or prompting [NDIS (Becoming a Participant) Rules r 5.8(b)].

    ·     assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional [NDIS (Becoming a Participant) Rules r 5.8(a)].

    [62] S30, 164, Ex L.

14. The respondent referred to the case of Rooney and National Disability Insurance Agency,[63] where the Tribunal considered what is meant by a ‘commonly used item’ and set out indicators including accessibility, need for complex or specialised customisation or installation, ease of use, and cost. The respondent argued that although a stair rail has been recommended, it is not necessary to have such a recommendation from a medical practitioner, as a stair rail is not a disability-specific support and is installed for general safety reasons. The Tribunal accepts the submissions that the installation of a stair rail in this case is not disability-specific, that it is not a particularly complex task, or a highly specialised one, and is relatively inexpensive. Mr Rahme gave evidence that it would be in the order of $650. 

    [63] Rooney and National Disability Insurance Agency [2021] AATA 3523 at [26]-[27].

15. The respondent relied on the case of National Disability Insurance Agency v Foster.[64] The Respondent stated that the case establishes that when the Tribunal is considering each of the domains in sub-paragraph 24(1)(c), the Tribunal is to look at all of the activities forming that particular domain. The respondent contended that the mere inability to do one task within the domain will not show substantially reduced functional capacity in the whole of the domain. The Tribunal is persuaded by the submissions that in the applicant’s case even if there was an inability on his part to go down the stairs, that forms only one part of mobility, and the Tribunal must look at the Applicant’s ability to mobilise in all respects.

    [64] National Disability Insurance Agency v Foster [2023] FCAFC 11 at [49] and [65]-[68].

1. On mobility, in his SLE as at 2022, the applicant referred to going on daily walks and said his knee impacted his daily walks. In his oral evidence, he said at the moment he does not walk daily, but that he is able to walk short distances, consistent with Mr Rahme’s observations. The applicant expressed difficulties in getting out of a chair, but he gave evidence that most of the time he can independently get out of bed, get off a toilet by pushing off the seat, and get off a very low child’s shower chair by pushing off the seat. The applicant is independent in seated transfers using the arms of the seat to push-off.

2. The evidence before the Tribunal indicates that the applicant completed the SLE on a computer using Google Translate, albeit some assistance from his wife. With some assistance, he was able to use Microsoft Teams in the course of the hearing. He gave evidence that he is capable of cooking, but does not as his wife does the cooking. He attends appointments. He can drive, and has an unrestricted driver’s licence. He gave evidence that he can get in and out of a small car, but sometimes with assistance.  In terms of getting out of a big car, he gave evidence that he needs assistance.

3. In relation to the applicant’s psychological conditions, he gave evidence that he saw Mr Abale twice, the last of which was about two to three weeks ago.  There is no probative evidence to suggest that he needed to see him more often, supporting a conclusion that if the applicant’s mental health was seriously impacting him, it is reasonable to suggest that he would have seen Mr Abale more than twice in almost six months.  Although in his oral evidence, the applicant did not remember telling Mr C Rahme that his mental health did not impact him on a day-to-day basis, he did give evidence about being forgetful. The Tribunal in those circumstances prefers Mr C Rahme’s evidence. 

4. The Tribunal is satisfied on the evidence that the psychological challenges do not give rise to any impairment or substantially reduced functional capacity. 

5. In light of the above, the Tribunal finds that the applicant does not experience substantially reduced functional capacity, and as such, s 24(1)(c) of the Act is not met.

6. The respondent accepts and the Tribunal finds that that the applicant meets s 24(1)(d) in that the applicant’s impairments affect his capacity for social or economic participation.

7. In relation to whether the applicant is likely to require support under the Scheme for his lifetime (section 24(1)(e)), because the applicant’s impairments are not permanent, the Tribunal finds that he will not require assistance under the Scheme for his lifetime and therefore he does not meet the requirement in s 24(1)(e) of the Act. Moreover, the Tribunal is satisfied that the applicant’s diagnosed conditions are also health conditions that are most appropriately treated and provided for through the health system.

8. For the reasons explained above, the Tribunal has found that his impairment is not permanent. It follows that s 25(1)(a) of the Act is not met. The applicant’s physical and psychosocial conditions are health conditions that do not satisfy the disability requirements under the Act. Section 25(3) is not met.

9. In conclusion, the Tribunal finds that the applicant does not meet ss 24(1)(b), (c) and (e), and the early intervention requirements in s 25 of the Act.

   DECISION

10. The Tribunal affirms the decision under review.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.

................................[SGD]...................................

Associate   

Dated: 14 July 2023  

Date of hearing(s):	17 and 18 May 2023
Applicant:	By video
Counsel for the Respondent:	Ms K Hooper