Amgad and National Disability Insurance Agency (NDIS)
[2025] ARTA 1451
•15 August 2025
Amgad and National Disability Insurance Agency (NDIS) [2025] ARTA 1451 (15 August 2025)
Applicant:Jamal Amgad
Respondent: National Disability Insurance Agency
Tribunal Number: 2022/10406
Tribunal:General Member I Selley
Place:Adelaide
Date:15 August 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the Applicant meets the access criteria to become a participant of the National Disability Insurance Scheme as set out in s 21 of the National Disability Insurance Act 2013 (Cth).
Statement made on 15 August 2025 at 12:07pm
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether access criteria under s21 of the NDIS Act met - disability requirements under s 24 of the Act - psychosocial and physical impairments – whether impairments are, or likely to be permanent – whether Tribunal can determine the proceeding with reference to only one permanent impairment - whether impairments result in substantially reduced functional capacity –- Rule 5.8(a) NDIS Becoming a Participant Rules – whether a walking stick is assistive technology, equipment and/or a commonly used item - whether prospective participant likely to require lifetime supports - decision under review set aside and substituted
PRACTICE AND PROCEDURE – obligation to engage interpreter – whether information disclosed for the sole purpose of alternative dispute resolution - whether issues can be adequately determined in the absence of the parties – whether agreement relates to part of the proceeding - sections 68, 88, 103, 105, 106 of the Administrative Review Tribunal ActLegislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)Cases
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; (1979) 2 ALD 634
G v Minister for Immigration and Border Protection [2018] FCA 1229Beezley v Repatriation Commission [2015] FCAFC 165
Beaumont v National Disability Insurance Agency [2024] AATA 891
Rooney v National Disability Insurance Agency [2021] AATA 3523
Foster v National Disability Insurance Agency [2025] ARTA 718
Madelaine and National Disability Insurance Agency [2020] AATA 4025Garcia Albiol and NDIA [2024] AATA 496
Secondary Materials
National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 14 October 2024, pre-legislation changes)
National Disability Insurance Agency, NDIS Operational Guidelines: Home modifications, 7 April 2025
National Disability Insurance Agency, NDIS Operational Guidelines: Assistive Technology, 20 December 2023
Administrative Review Tribunal, Guideline on persons giving expert and opinion evidence, December 2024
Administrative Review Tribunal, Common Procedures Practice Direction, April 2025
Statement of Reasons
INTRODUCTION
The issue for the Tribunal’s determination is whether Mr Jamal Amgad should be granted access as a participant to the National Disability Insurance Scheme (NDIS) and therefore be able to access NDIS supports for his lifetime.
In December 2022, the National Disability Insurance Agency (the Agency) determined to refuse Mr Amgad access to the NDIS, and he applied to the Administrative Appeals Tribunal to independently review the merits of the Agency’s decision. In October 2024, the Administrative Review Tribunal (ART) was established to replace the AAT and the AAT was abolished. Mr Amgad’s AAT Application was automatically transferred to the ART[1].
[1] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024
Mr Amgad is 61 years of age and resides in suburban Sydney. He arrived in Australia as a refugee[2] in about 2002[3] and is now an Australian citizen. He is divorced or separated and has children whom he now does not see, causing him much sadness[4]. He has no family in Australia. He worked as a lawyer in his home country[5]. In his early years in Australia, he volunteered with community organisations[6]. He has not worked in either voluntary or paid employment for many years because of his ill-health[7] and receives a disability support pension[8].
[2] Respondent Tender Bundle (RTB), page 314
[3] RTB, page 238
[4] RTB, page 238
[5] RTB, page 243
[6] RTB, page 243
[7] RTB, page 244
[8] Evidence at hearing
Mr Amgad lives with medical conditions which impair his psychological and physical functioning. These conditions include schizophrenia, post-traumatic stress disorder and rheumatoid arthritis[9].
[9] RTB, at page 314
This decision, in its essence, is about whether the psychosocial and physical impairments that arise from Mr Amgad’s medical conditions are of such nature and extent he meets the disability requirements detailed in section 24 or the early intervention requirements in section 25 of the National disability Insurance Scheme Act 2013 (the Act). To be given access to the NDIS, Mr Amgad must also meet the age and residence requirements in sections 22 and 23 of the Act, however it is readily accepted that he does so.
To assist in determining these issues, the Tribunal held a two-day hearing in March 2025. On Day Two of the hearing, the Agency conceded Mr Amgad meets the disability requirements, and accordingly the access criteria, in relation to his psychosocial impairments arising from the conditions of schizophrenia, anxiety, depression and post-traumatic stress disorder. The Agency stated it had reached this position considering the additional oral evidence Mr Amgad had presented on Day One of the hearing regarding the impact of his psychosocial impairments on his capacity to undertake social interaction. It confirmed this position in post-hearing written submissions dated 19 March 2025[10]. The Tribunal agrees, based on its assessment of the documentary and oral evidence before it that this concession is rightly made. On this basis alone, the Tribunal sets aside the internal review decision and substitutes it with a decision that Mr Amgad meets the criteria for access to the NDIS.
[10] Respondent post-hearing submissions, page 1
The Agency did not, however, concede its position in respect of Mr Amgad’s physical impairments and continues to argue Mr Amgad does not meet the access criteria because of them. Mr Amgad continues to argue that he does, as is his right.
This decision record is therefore substantially about whether Mr Amgad meets the access criteria in respect of those physical impairments, in addition to his psychosocial impairments as well as several significant procedural issues that arose in this case. However, the Tribunal also sets out Mr Amgad’s psychosocial impairments and why the Tribunal is satisfied that Mr Amgad meets the disability requirements and the access criteria in relation to those impairments. This is because the law requires the Tribunal to consider Mr Amgad’s permanent impairments as a whole in deciding whether they collectively give rise to substantially reduced functional capacity in one or more of six daily activity areas (the section 24(1)(c) requirement). The Tribunal sets out below its reasons for not accepting the Agency’s submission that the Agency’s concession regarding Mr Amgad’s psychosocial impairments makes it unnecessary for the Tribunal to consider his physical impairments in reaching its decision under sections 21 to 25 of the Act.
For the reasons set out below, the Tribunal has determined Mr Amgad’s physical impairment, whist permanent, does not when considered in conjunction with his permanent psychosocial impairment result in substantially reduced functional capacity in any one of the six activity areas stated in section 24(1)(c) of the disability requirements. It has also determined Mr Amgad does not satisfy the early intervention requirements in section 25 of the Act in respect of his physical impairment.
In summary, the Tribunal has determined Mr Amgad meets the access criteria in relation to his psychosocial impairment and the decision under review is set aside.
LEGISLATION AND POLICY
The Disability and Early Intervention Requirements
Sections 24 and 25 of the Act were amended after Mr Amgad made the AAT application, however, those changes apply only to access requests made on or after 3 October 2024[11]. The Tribunal therefore applies the disability and early intervention requirements as they were immediately prior to those amendments and as quoted below.
[11] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) 2024 (the Amending Act), Item 126(1) of Part 3 of Schedule 1
In summary, a person will meet the disability requirements if they have a disability that is attributable to an impairment that is permanent, or likely to be permanent, and that results in substantially reduced functional capacity[12]. Section 24 of the Act states:
[12] NDIS Access Rules, paragraph 2.5(a)
(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.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require NDIS supports under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
The early intervention requirements may provide an alternative basis for meeting the access criteria where the person’s permanent impairments do not result in substantially reduced functional capacity. The early intervention requirements consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity[13]. It is envisaged to be particularly applicable to Rren.
[13] NDIS Access Rules, paragraph 2.5(b)
Subsections 25(1) and 25(1A) relevantly state:
(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;
(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent;
(iii) is a child who has developmentaldelay; 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.
(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.”
NDIS Access Rules
The Tribunal must apply the mandatory instructions for interpreting sections 24 and 25 in the NDIS (Becoming a Participant) Rules 2016 (the Access Rules). The Access Rules set out the circumstances in which, and the criteria the Tribunal must apply in assessing whether:
·impairments are or are likely to be permanent
·any permanent impairments result in substantially reduced functional capacity in undertaking one or more activities; and
·provision of early intervention supports is likely to benefit the person.
Judicial interpretation of the Access Criteria
The Tribunal must apply the relevant jurisprudence of the courts in access matters.
The courts have said that the purpose of the access criteria and section 24(1) is to impose a series of “components and thresholds” [14] to gaining access to the NDIS.
[14] Mulligan v NDIA [2015] FCA 544, at [18] (Mulligan)
Given Mr Amgad must satisfy every component in section 24(1), the Tribunal’s approach is to consider whether each is in turn satisfied before progressing to the next. If he fails to satisfy one, then he cannot meet the disability requirements, and the Tribunal must turn its attention to whether he meets the early intervention requirements. The components of section 25 are also cumulative, and each must in turn be satisfied.
The courts emphasise that the central concept in an access matter is “Impairment”[15]. It is not the name of a person’s disability or their medical diagnoses or conditions[16]. Impairment involves the loss of or damage to a physical, sensory or mental function[17].
[15] National Disability Insurance Agency v Davis [2022] FCA 1003 at [69] (Davis)
[16] Davis, at [69]
[17] Mulligan, at [51]
The courts have said “permanent” means “enduring”[18]. An impairment may endure even if it fluctuates, or may fluctuate during a person‘s lifetime, in its intensity and impact [19].
[18] Davis, at [85]
[19] Davis, at [82]
The Tribunal must engage in a fact-finding exercise and examine the evidence of medical practitioners, clinicians, an applicant and their supports to determine the permanency and severity of the applicant’s impairments and the impact on their ability to undertake specified, multi-faceted life activities[20].
[20] Davis, at [82]
When considering whether an impairment or impairments result in substantially reduced functional capacity, the Tribunal must make, with a high degree of precision, a functional, practical assessment of what Mr Amgad can and cannot do.[21] That assessment involves consideration of the full range of tasks and actions that comprise each of the life activity areas.[22] It would be incorrect to ask this question only in relation to one or a few of such tasks[23].
[21] Mulligan, at [56].
[22] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), [64].
[23] Foster, at [64]-[66]
The term “substantially” in this context carries a “high threshold”[24]. Whether this high threshold is met should be considered with reference to the purpose of the NDIS, including that it was not intended to provide support to every person with disability and ensuring the financial sustainability of the scheme[25].
[24] Garcia Albiol and NDIA [2024] AATA 496
[25] Mulligan, at [39]-[41]
It is for Mr Amgad to provide the Tribunal with sufficient evidence and information to persuade it that he meets the access criteria[26], and for the Agency to assist the Tribunal to make the correct or preferable decision[27].
[26] Beezley v Repatriation Commission (2015) FCAFC 165 at [68]
[27] Section 56(1), ART Act
I discuss relevant jurisprudence concerning the Access Rules below.
NDIS Guidelines
The Tribunal must take into consideration[28], but is not bound by[29], the Agency’s current policy guidance contained in NDIS – Applying to the NDIS Guideline (the Access Guidelines). The Operational Guidelines are regularly updated and those relating to access requests received by the Agency before 3 October 2024 are relevant to this matter[30]. The Agency’s Operational Guidelines on Assistive Technology and Home Modifications are also relevant to the proceeding and have been taken into consideration.
[28] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
[29] G v Minister for Immigration and Border Protection, per Mortimer J [2018] FCA 1229 at [171]
[30] Applying to the NDIS | NDIS
THE APPLICATION AND ITS PROCEDURAL HISTORY
On 13 September 2022, Mr Amgad made a request to the Agency to access the NDIS (the access request). On 3 October 2022, the Agency refused the access request[31] (the access decision). Mr Amgad then applied to the Agency for an internal review of that decision on 31 October 2022, and on 16 December 2022, the Agency again determined not to grant him access (the internal review decision)[32].
[31] RTB, page 263
[32] RTB, page 6
Mr Amgad had made an earlier request for access that was also refused, on 4 August 2022, and the Agency confirmed its refusal decision on 12 September 2022. He made the access request the following day. Mr Amgad includes the first internal review decision of the Agency amongst his documents[33] and briefly refers to his first request and negative outcome in his submissions to the Tribunal[34]. The first request provides a context in which some of Mr Amgad’s documents now before the Tribunal were created[35] and it is helpful for the Tribunal to have considered it as background information to the current proceedings. It is not under review in these proceedings, however.
[33] Mr Amgad’s Supplementary Tender Bundle (STB), at page 1
[34] STB, page 27
[35] For example, Dr Colin Chu’s letter dated 15 July 2022, which appears only in the STB, at page 15
In the internal review decision, the Agency accepted only that Mr Amgad had permanent physical impairments arising from Rheumatoid Arthritis and this affected his capacity for social and economic participation. It did accept he had psychosocial impairments resulting from schizophrenia, post-traumatic stress disorder (PTSD), anxiety and depression, but did not accept those resultant impairments were permanent. The Agency reasoned that Mr Amgad had provided insufficient information about the treatment he had received for those impairments. The Agency did not accept Mr Amgad’s impairments arising from rheumatoid arthritis resulted in substantially reduced functional capacity in any one of the six activity areas. For this reason, the Agency also did not accept he required lifetime support from the NDIS.
On 20 December 2022, Mr Amgad applied to the Administrative Appeals Tribunal (AAT) for a review of the internal review decision. His application had been progressing unsuccessfully through alternative dispute resolution until July 2024, when it was constituted to a General Member of the AAT for hearing and final determination. It was then re-constituted to me on 26 February 2024 pursuant to section 43 of the ART Act upon that Member becoming unavailable. The Tribunal is satisfied the application to the AAT is valid and the ART has jurisdiction to determine it[36].
EVIDENCE, SUBMISSIONS AND PROCEDURAL ADJUSTMENTS
[36] Section 25 of the Administrative Appeals Tribunal Act 1975 and section 103 NDIS Act together gave the AAT the power to review an internal review decision by the Agency about access
An overview of the hearing and the parties’ submissions
On 6 and 7 March 2025, the Tribunal conducted a two-day hearing, with the Agency and Tribunal using MS Teams video conferencing and Mr Amgad appearing by telephone. The Tribunal encouraged Mr Amgad to appear by video and permitted him to have his camera off, so that he might have the reassurance of seeing everyone without being seen himself. However, he reaffirmed his preference to appear by phone and this was granted throughout the two days as an appropriate disability-related procedural adjustment. Mr Amgad represented himself and did not have a support person present. The Agency were represented by Ms Nicole Maddocks as counsel and instructed by Sparke Helmore Lawyers.
The Tribunal heard evidence from Mr Amgad for a substantial part of Day One of the hearing, allowing him the time to present his case to the Tribunal given he was self-represented and without a disability advocate. Ms Melissa Sale, the occupational therapist who conducted an independent functional assessment of Mr Amgad at the Agency’s instruction and prepared a report dated 31 December 2023, also gave evidence on Day One. Mr Amgad confirmed at the hearing that he endorsed the assessment and findings of Ms Sale in her report and took no issue with her evidence in the hearing. The Tribunal observed that both witnesses spoke openly and honestly and without exaggeration.
Prior to the hearing, on 21 February 2025, the Agency requested Mr Amgad make Dr Colin Chu, his former GP of many years, and Mr William Lee, his physiotherapist, available for cross-examination. Mr Amgad communicated on 27 February 2025 that he did not object to their cross-examination provided the Agency pay the costs of their appearance. The Agency did not press the issue further and neither party made arrangements for their appearance.
On 20 February 2025, the Agency provided the Tribunal and Mr Amgad with a Statement of Facts Issues and Contentions (SFIC) outlining the key arguments and evidence in their case. Mr Amgad did not file pre-hearing submissions addressing the issues of substance in his case. He did file brief submissions on procedural issues, and these are addressed below. Both parties presented oral submissions at the end of the hearing. Although Mr Amgad did not have the benefit of legal representation, he was a lawyer in his home country and represented himself admirably despite his impairments.
The Tribunal fulfilled its obligations under section 68(3) of the ART Act and engaged an interpreter in the Arabic language, who assisted Mr Amgad throughout the hearing. Although Mr Amgad had not requested an interpreter, he had written to the Tribunal worried about not being understood given his heavily accented English and English being his second language. The Tribunal also found Mr Amgad’s written communications to be difficult to understand and revealing his anxiety about participating in a hearing. In all the circumstances the Tribunal determined an interpreter was required to enable Mr Amgad to effectively communicate in the proceedings. This decision was verified at the hearing and the Tribunal is grateful for the interpreter’s valuable assistance.
On 15 January 2025, the Tribunal issued a direction requiring the Agency and Mr Amgad to discuss the documents to be put into evidence and for the Agency to compile and submit an agreed Joint Hearing Bundle by 24 February 2025.
On 28 January 2025, the Tribunal issued at the Agency’s request a summons to The Sydney Clinic. Mr Amgad objected to this summons on 31 January 2025[37]. This objection became in substance obsolete upon the Sydney Clinic advising that it held no records for Mr Amgad. The Tribunal nonetheless notes Mr Amgad’s anxiety about the late nature of the request and the volume of documents he might have been expected to read.
[37] STB, at page 20
On 26 February 2025, the Agency informed the Tribunal they had been unable to obtain Mr Amgad’s agreement to a Joint Hearing Bundle.
On 27 February 2025, Mr Amgad gave the Tribunal and the Agency, by way of three emails, 28 PDFs of documents that he sought to rely upon. This included a medical certificate from Dr Caristo dated 22 February 2025[38]. Dr Caristo states Mr Amgad was experiencing distress at being asked to review the Agency’s hearing bundle within the time available, given his limited English comprehension capabilities and lack of legal representation. She states Mr Amgad had advised her he would like a decision from the Tribunal based on his documents. I address this request from Mr Amgad below.
[38] Supplementary Tender Bundle (STB), page 28
On 4 March 2025, the Agency filed with the Tribunal a Respondent’s Hearing Bundle (RHB) of approximately 1500 pages. This included 664 pages of medical, hospital and clinical records returned under summonses (summons documents) issued to the following of Mr Amgad’s treating professionals by the Tribunal in April 2023 at the Agency’s request:
·Five Dock Physio
·Concord Family Doctors
·Concord Hospital, New South Wales Department of Health.
The Tribunal understands from the submissions of the Agency on Day Two of the hearing that the Respondent included the summons documents in the RHB under the heading “Respondent’s material” for the Applicant’s benefit should he wish to refer the Tribunal to them. It appeared to the Tribunal that Mr Amgad was unaware the Agency had included them for this reason. Noting the summonses were issued at the request of the Respondent for the purpose of assisting the Tribunal in its decision making, and the documents were made available to the Respondent two years prior to the hearing, the Tribunal was challenged by their voluminous presentation just prior to the hearing. The Tribunal queries the appropriateness of the Respondent’s inclusion in its RTB under the heading “Applicant’s material” a complete copy of a report it was aware Mr Amgad objected to being taken into evidence, without further submissions. The Tribunal addresses this report and Mr Amgad’s objections to it, below.
On 7 March 2025, the Agency provided the Tribunal and Mr Amgad with a Supplementary Tender Bundle (STB), indexing and compiling into one paginated PDF, the documents submitted by Mr Amgad. The STB includes in its index all the 28 documents Mr Amgad submitted on 27 March 2025 and reconciles them against the documents in the Respondent’s Bundle. The STB for simplicity omits documents already included in full in the RTB. It identifies but omits from the body of the bundle the Respondent’s submissions from May 2024 created during and solely for the purposes of alternative dispute resolution. Pursuant to sections 88(1) and (2) of the ART Act, such documents are inadmissible in the proceeding as the consent of both parties to their admission was not provided. Their exclusion from the STB is therefore appropriate.
In general terms, both hearing bundles include the documents held by the Agency at the time of and relevant to the Tribunal Application including the internal review decision and the reports and records from the Applicant on which that decision was based (the T-Docs), as well as reports, records, communications and submissions prepared or obtained by each party for this Tribunal proceeding.
On 19 March 2025, The Agency provided the Tribunal and Mr Amgad with post-hearing submissions on two discrete legal issues. The first of these concerns the Tribunal’s powers under section 105 of the ART Act and the second concerns whether a walking stick is a commonly used item within the meaning of Rule 5.8 of the Access Rules. The Tribunal addresses these issues further below.
Objection to Report by Dr Gerald Chew
In his submissions dated 27 February 2025, at the commencement of the hearing and at several intervals during the hearing, Mr Amgad raised his objection to the Tribunal receiving into evidence a psychiatric assessment report dated 16 September 2023 by Dr Gerald Chew, Consultant General and Forensic Psychiatrist at The Sydney Clinic (Dr Chew’s report). Dr Chew conducted the assessment of Mr Amgad on 11 September 2023.
As is noted above, the Agency had included Dr Chew’s report in its RTB and seeks to rely upon it. The Tribunal understands there was a controversy about how the document came to be first placed before the AAT, in May 2024, while the proceeding was still in ADR. This controversy had not abated by the time the matter came to be heard by this Tribunal and required the Tribunal’s attention for the hearing to proceed effectively.
Mr Amgad acknowledges Dr Chew’s report was commissioned with his consent by his solicitors at the time and given by him to the Agency and to the Tribunal. On the information before the Tribunal, it understands that Dr Chew’s report was commissioned for the purposes of the AAT proceeding, which was in ADR at that time. In light of Mr Amgad’s objection to the report, a question arises as to whether the report is inadmissible in this proceeding by virtue of section 88 of the ART Act.
Section 88(1)(a) relevantly states:
“evidence of ….. any information disclosed at or for the sole purpose of a dispute resolution process is not admissible in a proceeding in the Tribunal”.
In the Tribunal’s view, on the information before it, although one reason for the disclosure of Dr Chew’s report to the Tribunal was for the purposes of ADR, this was not “the sole reason”. It is therefore not rendered inadmissible in this proceeding by the operation of section 88 of the ART Act. Further, an interlocutory hearing had been held before a Senior Member of the AAT, on 29 May 2024, to determine an application by Mr Amgad to have the document removed from the Tribunal file. The application was refused, and the AAT made directions on 30 May 2024 progressing the matter to a hearing to be scheduled between December 2024 and March 2025. The Senior Member’s directions included a direction to Mr Amgad to obtain a further psychiatric report and provide a copy to the Agency and the AAT by 30 September 2024.
Finally, and importantly, it was evident to this Tribunal that the controversy had in no way subsided by the final hearing. It was fuelling Mr Amgad’s anxiety around the hearing which in the ordinary course is a fundamental mechanism of procedural fairness in assisting parties, particularly an applicant, to present their case, and had led to Mr Amgad requesting a determination on the papers. Accordingly, against this background and for all these reasons it was essential for the Tribunal to address the objection and hear from the parties on the matter. It is also important for the Tribunal to note that both parties subsequently terminated their arrangements with the solicitors acting for them at the time Dr Chew’s report was commissioned. Neither earlier representative was therefore involved in this proceeding since its constitution to the Tribunal for final hearing.
Given the intensity of the feelings expressed by Mr Amgad at the opening of the hearing on the issue of Dr Chew’s report, and to reduce the risk of the issue preventing the hearing from commencing, the Tribunal deferred hearing submissions on its admissibility until the commencement of Day Two. Immediately following completion of those submissions, the Agency informed the Tribunal and Mr Amgad that it had conceded Mr Amgad met the access criteria in respect of his psychosocial impairments. As Dr Chew’s report is mostly focused on Mr Amgad’s psychosocial impairments, it was not necessary for the Tribunal to rule on the matter in the hearing and the Tribunal reserved its decision on the issue. For the reasons below, the Tribunal has determined that it is necessary to rule on the admissibility of the report and now turns to the parties’ submissions in detail.
The substance of Mr Amgad’s objection to its tender is three-fold. He argues he was misled by the Agency’s previous legal representatives into making it available and that if accepted into evidence, it should be given little or no weight as Dr Chew spent only 15 minutes assessing him through video conferencing. He argues that the Agency should have remedied these circumstances by funding a further independent psychiatric assessment and report. To this end, Mr Amgad obtained a quote from psychiatrist Dr Chenyan Gao, Sydney Central Psychiatrists, who itemises a five-session assessment program to prepare a medical report[39]. These are essentially the same reasons as Mr Amgad outlines in his submissions to the AAT in the interlocutory proceedings in May 2024[40], which are included in the RTB with Mr Amgad’s consent.
[39] STB, page 19
[40] RTB, page 225
The Agency submitted that it became aware of Dr Chew’s report on receipt of a report from one of Mr Amgad’s treating psychologists, Mr Carlos Camacho, dated 8 November 2023, which refers to and quotes Dr Chew’s report[41]. The Agency submits Dr Chew’s report is highly relevant to the proceedings as the only report from an independent expert psychiatrist before the Tribunal and that it is necessary to properly understand Mr Camacho’s evidence.
[41] RHB, at page 1446; Page 2, Report of Carlos Camacho
I note that it is outside the Tribunal’s function in determining the application and conducting a hearing to investigate how a document came into the hands of another party prior to the hearing taking place and during the confidential ADR process. I note the allegations by Mr Amgad are serious and the individuals allegedly involved in them were no longer involved in the proceedings at the time of the hearing to be able to reply to them. I also note, however, that whilst the Tribunal cannot investigate these matters, the Tribunal observes both parties in their accounts spoke honestly at the hearing as to how they experienced and interpreted the relevant events and exchanges.
The Tribunal has determined that in circumstances where the Tribunal has previously ruled Dr Chew’s report is to remain on the Tribunal file, and the contents of that report are directly relevant to the proceedings, the Tribunal must have regard to it. The Tribunal is persuaded that Dr Chew’s report is relevant for the reasons submitted by the Agency. It also finds it is relevant for additional reasons, which I detail immediately below and further into this decision when discussing Mr Amgad’s physical impairments.
Equally, for the reasons below, the Tribunal observes Dr Chew’s report, to the extent the Tribunal gives weight to it, to support Mr Amgad’s claims to meet the access criteria. In so concluding, the Tribunal places weight on the following passage which appears in Dr Chew’s concluding opinion:
Mr Amgad’s most likely primary psychiatric diagnosis is Schizophrenia. He also has trauma symptoms and anxiety and depression symptoms. He remains actively psychotic with delusions and thought disorder and does not appear to be having any significant psychotropic medication or specific treatment for his schizophrenia.
He has significant psychosocial impairment as a result of his psychiatric conditions. His psychosocial impairments are across multiple domains including communication, social interaction, learning, self-care and self-management.
The Tribunal also notes that in reaching this conclusion, in addition to his own observations, Dr Chew gives credence to two NSW Health progress notes from psychiatric specialists, from 2018 and likely 2019, which observe Mr Amgad as experiencing psychosis, formal thought disorder, persecutory delusions and the prescription of olanzapine, as well as Dr Canatali’s notation of diagnoses of schizophrenia and PTSD and her assessment of their impact on Mr Amgad’s functional capacity. Dr Chew also makes observations about Mr Amgad’s physical impairments, which I consider further below.
The crux of Mr Amgad’s concern about Dr Chew’s report is a concluding passage in which Dr Chew opines Mr Amgad’s psychosocial impairment “cannot be deemed permanent as it does not appear that he has had adequate treatment”, being psychiatric treatment.
Dr Chew was engaged, as his report states, to conduct a psychiatric assessment and produce a psychiatric report. However, in the Tribunal’s opinion, the passage of concern is entirely a purported legal opinion. This is not only outside the area of expertise for which he was engaged, it reveals both erroneous and incomplete considerations of the factual matters to be determined when assessing the permanency of an impairment for the purposes of section 24(1)(b) as the test is expressed in the Access Rules and correctly applied. For this reason also, the Tribunal therefore gives this aspect of his opinion no weight.
I have detailed further below in this decision record the relevant provisions of the Access Rules the Tribunal must apply in considering whether the criteria in section 24(1)(b) regarding permanency are met. I discuss these in some detail in my consideration of Mr Amgad’s physical impairments. However, I also outline them here for the purposes of highlighting the difficulties the Tribunal has with the Respondent’s reliance until Day Two of the hearing on this aspect of Dr Chew’s report in the context of Mr Amgad’s undisputed psychosocial conditions.
The Agency submits in its Statement of Facts Issues and Contentions that this opinion from Dr Chew “demonstrates that he (Mr Amgad) has not undertaken all known, available and appropriate treatments”[42] and as such, Mr Amgad’s psychosocial impairments do not meet the requirement of permanency. In the Tribunal’s view, that is an incomplete statement of the test the Tribunal must apply.
[42] RTB, at 267
Rule 5.4 of the Access Rules states that “an impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment”. (Tribunal emphasis) This phrase must be considered in its entirety. The courts have interpreted “remedy” in Rule 5.4 to mean “something approaching a removal or cure of the impairment”[43], “appropriate” as connoting “a treatment which has a capacity to “remedy” the impairment”[44] and “available” as requiring consideration of “what treatments an individual can, in reality, access”[45]. There is no legal requirement that the treatment be “adequate”, which was the question Dr Chew in error turned his mind to.
[43] Davis, at [136]
[44] Davis, at [137]
[45] Davis, at [138]
Further, on the Tribunal’s reading of Dr Chew’s report, he did not as part of his psychiatric assessment address whether the psychiatric treatment he recommended Mr Amgad undertake would be likely to be remedy the impairment. In the Tribunal’s opinion, it would have been within his expertise to have done so. This aspect of Rule 5.4 makes clear, in the Tribunal’s view, that there are circumstances in which a person’s impairment arising from conditions such as schizophrenia and other psychiatric conditions will meet the legal requirement of permanence where they have had little to no treatment.
This discussion is important because the Agency’s continued reliance on the above passage of Dr Chew’s Report appears to the Tribunal to have profoundly shaped Mr Amgad’s participation in the proceedings. The Tribunal has a responsibility to be alive to an applicant’s disability and how it may impact their participation in the proceedings at hand. The Tribunal has amongst its statutory objectives to be fair and just, and accessible and responsive to the diverse needs of the parties to proceedings[46]. It has, further, a statutory duty to as far as practicable, conduct each proceeding in a way that is accessible for the parties, taking into account their needs[47] and must ensure each party has a reasonable opportunity to present their case[48]. In this case, the Tribunal considered it should be alive to the possibility that Mr Amgad’s psychosocial impairments were causing him to fixate on the issues surrounding Dr Chew’s report and fear direct engagement with the Agency, in turn impairing his judgment about how best to present his case.
[46] ART Act, section 9(a) and 9(c)
[47] Section 51, ART Act
[48] Section 55, ART Act
Accordingly, it is to the Tribunal’s further procedural adjustments that I now turn.
Request for a determination without a hearing and other procedural adjustments
As the Tribunal has noted above, Mr Amgad provided the Tribunal with a letter from Dr Caristo requesting a hearing on the papers. Mr Amgad adds in his covering email:
Based on Jamal’s family’s Dr Natalie Caristo’s certificate dated 22-2-2025 and advice from Dr Rose Cantale to not hurt himself he not like to attend the hearing to avoid aggressive expression of the NDIS legal representative against him and also his health wasn’t’ help him to stay more 30 minutes and after he disconnect his concentration.
The Tribunal understands this request was in some part a response to a letter from the previously constituted AAT to the parties in September 2024[49] informing the parties of its power to determine a proceeding without a hearing being held and encouraging them to consider this option. This AAT letter was sent following a Tribunal event in which Mr Amgad became highly distressed about the issues surrounding Dr Chew’s Report and the Tribunal was rightly concerned for his welfare. The Tribunal understands Mr Amgad replied with submissions on about 26 September 2024 stating he would like to proceed with a decision on the papers. He then added that he “seeks to delete Dr Gerald Chew’s report from his file and proceed with my file after this”[50], in substance repeating the argument he had unsuccessfully made in May 2024 regarding removing the document from the Tribunal’s file. On 27 February 2025 the Tribunal received Dr Caristo’s letter and Mr Amgad’s covering submission, being after the matter was listed for final hearing. At the opening of the hearing on 6 March 2025, the Agency indicated it would consent to the Tribunal making a decision without a hearing.
[49] STB, page 29-30
[50] RTB, page 261
During the final review hearing, Mr Amgad referred to the AAT’s letter as “a decision” of the AAT. It is important to note that the letter does not have that status. This Tribunal, as the re-constituted Tribunal, is not bound by its contents, though should be mindful of them. Further, the AAT Act ceased operation shortly after the issue of the letter, and the relevant provisions are now found in the ART Act. Though similar, they are not the same as were operating under the AAT Act, in September 2024.
Before explaining the Tribunal’s approach to Mr Amgad’s request, it is helpful to set out the relevant provisions of the ART Act which enable the Tribunal to make a decision without a hearing.
Section 106(1) of the ART Act relevantly states:
The Tribunal may make a decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) apples.
Section 106(2) is the subsection that applies in this case. It relevantly states:
This subsection applies if:
(a) all of the parties to the proceeding consent to the proceeding being determined without the hearing of the proceeding; and
(b) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
In this Tribunal’s view, the Tribunal should take a cautious approach in considering whether to proceed to a determination without a hearing where the applicant claims to want to forgo the hearing with the respondent government party for fear of being harmed by that experience. In so saying, that is to make no comment about the legitimacy of those fears. This is particularly so where the applicant has disability and language barriers to participating in a hearing. In this Tribunal’s view, whilst it cannot refuse a request for a determination on the papers where the statutory criteria is otherwise met, if an applicant is fearful of a hearing, the Tribunal should make best endeavours to address those fears and make the hearing as accessible as possible and encourage an applicant to avail themselves of the procedural opportunity a hearing offers to more fully present their case.
At the commencement of the hearing, Mr Amgad told the Tribunal that he wanted to speak to his case for 30 minutes and then leave the hearing so that the Tribunal could make a decision based only on his documents. He declined to answer any questions from the Agency. At this stage, the Tribunal had before it two substantially different bundles of documents from both parties.
The Tribunal indicated to Mr Amgad that it could make a decision on only the documents before it if it has the consent of both parties, but to be procedurally fair that would mean consideration of the Agency’s documents as well as his. Mr Amgad told the Tribunal he objected to any of the Agency’s documents being accepted into evidence. Although the Tribunal understands Mr Amgad was not aware of it, this would have meant excluding key documents in the Agency’s document bundle in support of his case. The Tribunal was not assured Mr Amgad understood the importance of the Tribunal having sufficient information before it in order to be positively satisfied the relevant statutory criteria are met, and the significance of participating in a full and fairly conducted hearing to that end.
In the Tribunal’s view, the procedural adjustment Mr Amgad was seeking was not open to the Tribunal under the ART Act. In its essence, Mr Amgad was asking the Tribunal to commit to holding a partial hearing in which only he would give evidence, without cross examination, and only his documents would be before the Tribunal. In the Tribunal’s view, such an approach would not be procedurally fair to the Respondent and would have placed the Tribunal in breach of its obligations under section 55 of the ART Act to ensure each party is given a reasonable opportunity to present their case.
Further, the Tribunal was in doubt, based on the information it had at the commencement of the hearing, that the proceeding could at that point in time be adequately determined in the absence of the parties to the proceeding, as sections 106(1) and (2) of the ART Act require. This is because the Tribunal had before it a significant dispute about which papers the Tribunal should base its decision upon. It appeared to the Tribunal that at least those issues would have to be heard rather than determined with the assistance of further written submissions from both parties, as the Agency had proposed as a possible way forward. In some not insignificant part, this was due to Mr Amgad’s limited English literacy and the Tribunal’s concerns that his own written evidence was very difficult to understand. Whereas the Tribunal has a statutory responsibility to provide an interpreter in a hearing , it does not have a statutory responsibility to engage a translator to assist a party with written submissions. The Tribunal therefore considered that any steps by the Tribunal to resolve the dispute by further written submissions would be procedurally unfair to Mr Amgad and also not of assistance to the Tribunal. Equally, it appeared to the Tribunal that given the level of Mr Amgad’s distress upon commencement, attempting to address the inflammatory issue of Dr Chew’s report at the outset would be counterproductive.
In order to make constructive progress in the hearing, the Tribunal made a procedural adjustment of asking the Agency to forgo the opportunity to make an opening statement and to permit Mr Amgad to make his and then take some questions from the Tribunal in the hope he would feel sufficiently safe and settled to remain in the hearing and continue to cross-examination. In the event that he left the hearing, the Tribunal would receive submissions from the Agency on the weight, if any, that could be given to any of his testimony.
Fortunately, this approach did enable Mr Amgad to settle, and he was able to in the Tribunal’s view participate effectively in the hearing through to completion. The Tribunal observed that he was able to draw on his previous experience as a lawyer in at times impressively putting forward his case. The Tribunal continued to encourage Mr Amgad to take breaks throughout the hearing and adjusted the timing and order of events, as Mr Amgad continued to experience moments of distress, fatigue and physical discomfort. The Tribunal also acknowledges the assistance to the Tribunal of Ms Maddox by virtue of her patient and non-adversarial approach throughout.
Can the Tribunal partly resolve proceeding by making a decision under section 103?
Upon confirming its concession that Mr Amgad meets the access criteria by reason of his psychosocial impairments, the Respondent submitted to the Tribunal that it should make a decision under section 103 of the ART Act to give effect to an anticipated agreement between the parties on those terms. It proposed this as a way to partly resolve the proceeding and to enable Mr Amgad to commence access to the NDIS while the Tribunal determined the remainder of the issues concerning his eligibility by reason of his physical impairments by way of a written decision made pursuant to section 105 of the ART Act. The Tribunal acknowledges the positive intentions of the Agency in proposing this way forward.
The Tribunal indicated to the parties its provisional view that this strategy, though well intended, was not open to the Tribunal. In the Tribunal’s view, if it made a decision under section 103 of the ART Act, that would conclude the proceeding and its jurisdiction would be terminated. It would not then have the power to go on and consider the issues relating to Mr Amgad’s physical impairments.
The Tribunal accepts in principle the Agency’s proposition that section 103 of the ART Act does enable part of a proceeding to be resolved. However, in this matter, where the proceeding is the review of a reviewable decision by the CEO of the Agency that the access criteria are not met, for the Tribunal to consent would not be to resolve part of the proceedings in the way the Agency envisages.
As is mentioned earlier in this decision, the structure of section 24 of the Act is a succession of threshold tests. Each test asks the decision maker to consider questions about the existence, nature and/or extent of impairments in the plural. As the Tribunal explained recently in the decision of Foster and NDIA[51]:
One way of conceptualising these criteria is as a series of gateways along a linear pathway. The criterion specified in s 24(1)(a) must be satisfied before the gate opens to consideration of the criteria specified in s 24(1)(b), and that criterion must be satisfied for the gate to open consideration of the criterion specified in s 24(1)(c), and so on. If a gateway to consideration of a subsequent criterion does not open, there is no utility in consideration of that or any other subsequent criteria.
[51] Foster v National Disability Insurance Agency [2025] ARTA 718 at [33]
In cases such as Mr Amgad’s, where an applicant claims to have more than one impairment, the Tribunal must first ask whether each of those impairments satisfies the criterion in section 24(1)(a). To the extent to which each does, those successful impairments pass through the gate to section 24(1)(b), where the Tribunal must assess whether each of those accepted impairments is permanent. If the Tribunal accepts both of Mr Amgad’s psychosocial and physical impairments are permanent, then they must both pass successfully through the next gate for the Tribunal to consider whether they give rise to a substantial reduction in functional capacity under section 24(1)(c). It is at this point where the indivisibility of the permanent impairments is particularly apparent as the test in section 24(1)(c) requires the Tribunal to assess their combined impact on his functional capacity. That is, Mr Amgad’s collective permanent impairments are integral to a singular question of law. If the Tribunal did not permit Mr Amgad’s permanent physical impairments to pass through the gate to the section 24(1)(c) assessment or refused to open the gate at all to their assessment under section 24(1)(a), that would in the Tribunal’s view, be errors of law.
Having considered and explained the various procedural issues in this case, the Tribunal now turns to determine the substantive issue before it of whether Mr Amgad satisfies the access criteria.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 24(1)(a): Does Mr Amgad have a disability that is attributable to an impairment?
As is noted above, it is necessary to define Mr Amgad’s impairments with some precision.
Before embarking on that task, the Tribunal observes that Mr Amgad has had largely enduring relationships with the practitioners whose reports and records are before the Tribunal. Although none were called to give oral evidence to the Tribunal, the longstanding nature of these relationships causes the Tribunal to attribute weight to their written materials. In summary I note the following treating relationships:
·Dr Colin Chu, Mr Amgad’s treating GP from January 2011[52] until recently, or some 13 to14 years.
·Dr Rose Catali, Mr Amgad’s psychologist since 2016[53] or 2017[54]
·Professor Les Barnsely, Mr Amgad’s rheumatologist from approximately 2009 until approximately 2023.
[52] RTB, page 64
[53] RTB, page 87
[54] RTB, page 223, 225
Mr Amgad claims to meet the access criteria because of impairments arising from schizophrenia, PTSD, depression, anxiety, RA, OA and other degenerative disorders of the body[55].
[55] RTB, page 220
As stated above, the Tribunal accepts Mr Amgad has a psychosocial impairment arising from the psychiatric conditions of schizophrenia, PTSD, severe anxiety and depression. The Tribunal has persuasive information from Dr Cantali, Dr Chu, Dr Chew, Mr Camacho, records from Concord Hospital and Mr Amgad as to the diagnoses, impairment, its permanency, impact (including negative economic and social) and resultant substantial reduction in Mr Amgad’s function capacity in the domain of social interaction. Based on the evidence before the Tribunal, it finds that impairment to be:
·impaired emotional regulation[56] and judgment[57]
·reduced motivation, anxiety, agitation and hypervigilance[58]
·impaired concentration, memory and recall[59]
·paranoia [60] and delusions, especially concerning government, injustice and betrayal
[56] RTB, page 234
[57] NSW Health headed “progress notes” and dated 31 December 2018
[58] RTB page 32
[59] RTB, page 24-25
[60] RTB, page 234
Mr Amgad claims to have physical impairments arising from the medical conditions of rheumatoid arthritis (RA), osteoarthritis (OA), degenerative spinal disc disease, right facet arthropathy and cervical radiculopathy. He claims to experience resultant shoulder, knee, back and hand pain[61].
[61] RTB, page 240
The Agency does not dispute the medical diagnoses. It agrees that in addition to his psychosocial impairments, Mr Amgad has a disability attributable to a physical impairment. This was also the Agency’s position in the internal review decision.
The Agency does have a view, however, as to the specific parts of Mr Amgad’s body these medical conditions affect. It states Mr Amgad’s RA affects his hands, his OA affects his hands, right knee and left shoulder and his degenerative disc disease affects his cervical spine and right ankle. This is stated in its SOFIC, but no citation is provided to reference the evidence from which these conclusions are drawn.
The position of the Agency on the relevant question of law, being how the Tribunal should define the impairment or impairments is unclear. The Tribunal found the Agency at times conflated Mr Amgad’s medical conditions with the concept of impairment, contrary to the jurisprudence summarised above.
The Tribunal notes that facet arthropathy is a degenerative condition affecting the lower back. Cervical radiculopathy is a condition that causes pain, weakness and numbness in the arm or hand due to degeneration of the spine and a compressed nerve. RA is an autoimmune disease that causes inflammation and degeneration in the joints and organs. It affects the whole body but may fluctuate as to the areas it impairs at any time and may go into remission. OA is also a degenerative disease, but it is a mechanical one and arises for example from joint dysfunction or injury to a joint.
The Tribunal has before it diagnostic information about Mr Amgad’s relevant physical conditions referencing the period of approximately 1988 up to and including 2024. For clarity and simplicity, I present the key information below, noting the reports and records in which that information is contained, in chronological order.
In July 2017, Mr Amgad’s treating rheumatologist, Professor Les Barnsley, Department of Rheumatology, Concord Hospital prepared a short note stating Mr Amgad has swelling, tenderness and pain in his ankles[62]. He wrote a longer letter to Dr Chu[63] noting that Mr Amgad’s primary diagnosis is “RA (erosive) on MRI scan”. He states:
Mr Amgad “continues to experience quite significant problems in his feet and hands. In his hands the pain is mainly across to PIPJs and MCP Js. Clinically he has little in the wat of swelling but there is significant tenderness across these joints as well as the wrists and ankles…. I believe that his disease is more active and you would recall that he has had significant synovitis and erosions demonstrated in the absence of clinical joint swelling”[64]
[62] T3, RTB, page 19
[63] RTB, page 460, 456
[64] RTB, page 456
In August 2017, Mr Amgad’s then treating physiotherapist, Michael Sawan, reports of treating Mr Amgad for pain and reduced movement and strength in his left shoulder originating from a dislocation. Mr Sawan states his shoulder flexion is 105 degrees (from 180) and his horizontal flexion is 1/10 of the normal range of motion. He states Mr Amgad’s shoulder impairment is causing pain in his cervical spine. Mr Sawan reports Mr Amgad experiences lower back pain, right knee pain and reduced knee flexion and extension. He reports Mr Amgad has RA that limits his hand movement and strength[65].
[65] T4, RTB, page 21
In Mr Amgad’s January 2018 application for a Disability Support Pension, Dr Chu notes that Mr Amgad “has inflammatory arthritis which affects his hands primarily. An MRI of his hands in 2011 demonstrated synovitis and erosions”[66]. He notes that the RA began in 2007 and was diagnosed in 2011. He identifies longstanding joint symptoms and that the condition is expected to fluctuate. In addition, he notes “some ankle involvement which limits walking distance to 200 to 400 m”.
[66] RTB, page 938
In June 2018, Mr Amgad presented to Concord Repatriation General Hospital (Concord Hospital) Emergency with severe neck and back pain and difficulty moving his neck. The discharge summary and report states Mr Amgad is “well known to Professor Barnsley with erosive RA involving the c-spine”. Mr Amgad had reported he had been using a neck brace with some symptomatic relief but had been advised by his doctor and physio to stop using it[67].
[67] RTB, pages 452, 832
In October 2019, Professor Barnsley wrote to Dr Chu that he suspects the pain in Mr Amgad’s right ankle is the result of an osteochondral lesion rather than a flare of his rheumatoid[68].
[68] RTB, page 1044-1045
In a letter dated February 2020 to rheumatologist Dr Barnsley, Dr Chu notes Mr Amgad’s 1988 patellar (knee) fracture resulting from a car accident[69], his diagnosis of PTSD which he links to Mr Amgad’s refugee status, his diagnosis in 2009 with RA and diagnoses of cervical and lumbar disc herniation, to which he does not attach a date.
[69] RTB, page 855
In April 2020, Professor Barnsley, confirms his suspicions regarding Mr Amgad’s right ankle in writing to Dr Moulos at Concord Family. He refers to an MRI performed in February 2020 after Mr Amgad was allegedly assaulted and grabbed by the throat. That MRI revealed degenerative foraminal lesions, narrowing and osteophyte formations in his cervical spine[70]. Dr Barnsley notes he does not believe these degenerative markers are related to the recent assault as they are not traumatic lesions[71]. He adds “I am suspicious that the has a significant soft tissue injury and I have asked him to speak to you about having some exercise-based treatment, ideally with an exercise physiologist under the Medicare program”[72].
[70] From RTB – summons material
[71] RTB, page 611-612
[72] RTB, page 612
In August 2020, Professor Barnsley wrote to Dr Chu following a telehealth consultation with Mr Amgad. He notes that Mr Amgad’s joints, other than his ankle for which he was awaiting surgery, “are not too bad”. He continues that “the only place he has had persistent pain has been in the middle three fingers of the right hand. He has noticed some occasional swelling of the index finger but apart from this his joints have been quiescent”[73].
[73] RTB, page 1021-1022
In September 2020, Dr Chu, completed a Supporting Evidence Form as part of Mr Amgad’s first access request. There, he identifies RA as Mr Amgad’s primary impairment. He identifies “osteoarthritis spine – cervical disc herniation” and ‘obstructive sleep apnoea’ as “other impairments”[74] and notes Mr Amgad’s loss of hand dexterity and function[75]. He notes Mr Amgad experienced physical persecution in his home country[76]. He states Mr Amgad requires assistance with social interaction, preparing food and home maintenance[77]. He reiterates these views in a subsequent Supporting Evidence Form dated 5 February 2021
[74] T7, JTB page 28-29
[75] T7, page 33
[76] T7, page 32
[77] T7, page 32-33
In October 2020, Dr Chu stated Mr Amgad had diagnosed RA and degenerative disc disease of the four levels of his cervical spine, osteoarthritis of his left shoulder following previous dislocations, and degenerative disease involving his right ankle[78].
[78] T8 and T9, RTB pages 34-35
In November 2020, Dr Chu elaborated stating the RA affects both wrists and hands, his neck and his knees. His knee impairments are compounded by a patellar fracture in 1989 resulting in osteoarthritis.
In February 2021, in a post-review report to Dr Chu, Professor Barnsley notes Mr Amgad’s persistent problems with pain in his hands due to RA. In the examination on that day there was some tenderness in his finger joints and his elbows and shoulders were stated to be “ok”.
In April 2021, Dr Chu states that Mr Amgad’s MRI demonstrates right facet arthropathy and severe bilateral narrowing in his cervical spine leading to numbness in both hands and pain in his paravertebral (neck) muscles. He states Mr Amgad has rheumatoid arthritis which particularly affects his hand joints. He refers to an osteochondrial lesion on Mr Amgad’s right ankle being repaired in October 2020. He concludes, “Mr Amgad is hence permanently disabled as a result of his rheumatological conditions”[79].
[79] T12. RTB 47
In April 2022, in a letter post periodic review from Concord Hospital Rheumatology to Dr Chu, Dr Katherine Nguyen notes Mr Amgad’s diagnosis of RA, and OA of finger joints. She notes Mr Amgad reported mild stiffness in some of his fingers, no pain in his wrist, elbows, knees or feet but mild pain in his shoulder and ankles[80]. She notes the existence of MRIs demonstrating joint erosion but is not more specific.
[80] RTB, pages 990-991
In July 2022, Dr Chu prepared a similar report to that from April 2021 in which he repeats the above observations in relation to Mr Amgad’s cervical spine and related impairments of hand numbness and neck pain and stiffness. He notes Mr Amgad’s historical injuries to his right knee and left shoulder causing pain and impairment. He notes Mr Amgad’s background of RA, especially affecting his hand joints and that Mr Amgad has lost a significant amount of hand dexterity. The RA has also caused Mr Amgad to be able to walk no more than 100 metres due to his involved joints.
In August 2022, Mr Amgad’s physiotherapist, William Lee, provided a report in relation to Mr Amgad’s attendance that day for ongoing neck and shoulder discomfort.
Also in August 2022, Michael Sawan produced a report similar to his previous. He confirms Mr Amgad’s regular attendance at treatment for pain and limited movement in his left shoulder. Mr Sawan adds that lower back and knee pain and reduced mobility in his right knee limit Mr Amgad’s walking ability and prevent him from kneeling and lunging[81].
[81] RTB, T18, at 66
In a letter from Dr Natasha Ung, Rheumatology at Concord, dated March 2023 to Dr Chu, Dr Ung noted the continued effect of the RA on Mr Amgad’s hands and wrists and possibly the small joints of the feet[82].
[82] RTB, page 976-977
In May 2023, Mr Amgad gave a written statement to the Tribunal and the Agency, in which he states he has been taking medication prescribed by his rheumatologist for eight years and he takes that mediation several times a day[83]
[83] RTB, pages 238 - 244
In September 2023, Mr Amgad reported to Dr Chew that he suffers from pain, loss of mobility and restricted function in a number of joints[84]. Dr Chew observed Mr Amgad as displaying pain behaviour during their consultation, having to change positions and get up[85].
[84] RTB, page 249
[85] RTB, page 250
In a Concord Hospital mental health assessment report dated 21 August 2024, Mr Amgad is noted as being diagnosed with seropositive RA in 2011 and has been medicated with methotrexate long term. He is noted as being diagnosed with OA of his finger joints and an osteochondral lesion on his right ankle[86]
[86] RTB, page 257 - 260
In a brief statement created for this proceeding dated 26 September 2024, Mr Amgad states that in winter his RA is worse and affects all his joints[87].
[87] RTB, page 262
Mr Amgad details the impact of the above conditions on his daily living in his statement to the Tribunal dated 4 May 2023 and provided further detail in this regard in his oral evidence. The Tribunal details that evidence further in its assessment of his claims against section 24(1)(c) of the NDIS Act, below.
At the hearing, Mr Amgad stated that he commenced trialling in 2024 a new medication by fortnightly injection – Umira 40g - for his RA under the supervision of a new rheumatologist at Concord Hospital as Professor Barnsley had retired. This is because the RA is getting worse. The new medication is also thought to have reduced risks of organ damage which is a potential side effect of methotrexate long term. The Tribunal observed several comments by Mr Amgad over the years in the documents returned by Concord Hospital that he is concerned about the potentially harmful side effects of methotrexate.
Mr Amgad confirmed he experiences stiffness with his joints and discs. He has a lot of problems, in his neck, back, ankle, shoulder and legs.
Considering the above evidence as a whole, the Tribunal makes the following findings of fact:
(a)Mr Amgad was diagnosed with seropositive RA in 2011.
(b)Mr Amgad’s RA has caused degeneration of the joints in his hands, wrists, knees, ankles and cervical spine.
(c)Mr Amgad has been diagnosed with two injuries, left shoulder dislocation in 2014 and right patella fracture in 1988 resulting in osteoarthritic degeneration of those joints.
(d)Mr Amgad has been diagnosed with osteoarthritis in his right ankle in 2020 and has had surgical treatment for an osteochondral lesion.
(e)Mr Amgad has been diagnosed in 2020 with right facet arthropathy and severe bilateral narrowing in his cervical spine.
(f)Mr Amgad has been most acutely impacted by the combined effects of RA and OA in his hands and wrists.
(g)As a result of one or more of the above conditions, Mr Amgad can experience the symptoms or “impacts” of pain, swelling, numbness and muscular and tissue contraction. Mr Amgad’s experience of pain and swelling fluctuates as to its intensity, frequency and location, and with the weather.
(h)There is some evidence of the RA affecting both ankles, however the evidence is not sufficient for the Tribunal to make a finding to that effect.
(i)There is some evidence of Mr Amgad having been diagnosed with obstructive sleep apnoea, however the evidence is insufficient for the Tribunal to draw any conclusions as to any impairment from this condition. Further, it understands no related claim is being pursued by Mr Amgad.
In light of the above findings of fact, the Tribunal finds Mr Amgad has a physical impairment of joint degeneration and reduced joint mobility and function of the cervical and lumbar spine and the joints of the hands, wrists, knees, right ankle and left shoulder.
Conclusions on disability
I am satisfied Mr Amgad has a disability attributable to the psychosocial and physical impairments I have accepted above.
Accordingly, Mr Amgad satisfies the disability criteria in section 24(1)(a) and section 25(1)(a) of the NDIS Act.
The next question is whether these impairments are permanent.
Section 24(1)(b): Are Mr Amgad’s physical and sensory impairments permanent or likely to be permanent?
When will an impairment be considered permanent?
Access Rules 5.4 to 5.7 set out the mandatory criteria for determining permanency of an impairment.
·5.4 An impairment is, or is likely to be, permanent 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).
·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.
The courts have said that rules 5.4 and 5.6 in practice prescribe mandatory exclusionary circumstances which, if met, require the Tribunal to conclude that the impairment is not permanent[88]. Rule 5.7 is a positive, deeming provision that requires the Tribunal to find the impairment is permanent if satisfied the terms of the provision are met. Rule 5.5 develops the principle in section 24(2) of the NDIS Act. It focuses on the impact of the impairment, rather than the impairment, and envisages impairment may be permanent even if its impact can be improved, or its negative impact diminished.
[88] Davis, at [73]-[75]
Rules 5.4 to 5.7 are all relevant in this case.
As to the adjectives in rule 5.4, Mortimer J in Davis observed:
(a)the word ‘remedy’ “should be understood to mean something approaching a removal or cure of the impairment”[89]
(b)the word ‘known’ connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment”[90]
(c)the word “appropriate” “connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo”[91]
(d)the word “available” “should be understood as directed at what treatments an individual can, in reality, access”[92].
(e)whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.30
[89] Davis, at [136]
[90] Davis, at [137]
[91] Davis, at [137]
[92] Davis, at [138]
In relation to whether an impairment is likely to be permanent, the Access Guideline reflects the jurisprudence and relevantly states:
·we need to know whether your impairments are enduring so that you require NDIS supports on an ongoing basis.
·We will focus on your impairments, and not on the cause of your impairments, or your diagnoses.
·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, or if there are known, available and appropriate evidence-based clinical, medical or other remaining treatments options that are likely to remedy the impairment.
·Generally, we’ll consider whether your impairment is likely to be permanent if all available and appropriate treatment options are pursued.
·Your impairment will likely be permanent if your treating professional tells us there are no further treatments that could remedy 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 that are:
o known – the treatment can be identified by an Australian medical practitioner as a suitable treatment for your impairment
o available to you – we need to take account of whether there are genuine barriers that prevent you from accessing treatment including, but not limited to, the nature of your impairment and your ability to access treatment
o appropriate for you and your impairment – we need to consider whether the treatment could remedy your impairment and is suitable and safe for you to undergo. Your ability to undergo treatment will be assessed according to your capabilities, your health and other personal circumstances, including your living arrangements
o evidence-based – there’s proof the treatment is likely to be effective.
·When we look at what treatments are available to you, we think about whether the treatment is suitable for your personal situation. The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle.
·If you’re still undergoing or have recently had treatment, we may not be sure you have a permanent impairment if that treatment could remedy the impairment.
·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 are likely to have a permanent impairment.
List B in the Access Guideline states the conditions the Agency accepts as likely to result in permanent impairment. The Tribunal notes that RA is one such condition.
Assessment of permanency: overview
The Tribunal notes that the focus of Rules 5.4, 5.6 and 5.7 is on medical and clinical treatment. These statutory provisions require the Tribunal to consider what treatment is available and suitable and the likely outcomes of Mr Amgad undertaking it. These rules indicate that consideration of any treatment Mr Amgad has had to date for his impairments is integral to these considerations. This is further emphasised by the references to the importance of information from treating professionals in the above policy positions and extracts from the Access Guidelines.
Assessment of permanency: psychosocial impairments
The Tribunal notes for completeness that the Agency was correct to concede Mr Amgad’s psychosocial impairments are or are likely to be permanent. The Tribunal has explained above its position on Dr Chew’s opinion on the issue. In addition, there is before the Tribunal persuasive evidence from Dr Cantali and Mr Camacho as to the severity, age, intractability and worsening of Mr Amgad’s psychosocial impairments over a significant length of time. There is also persuasive and consistent evidence before the Tribunal from Mr Amgad and Mr Camacho as to Mr Amgad’s compliance with extensive psychology treatment over that period and the unaffordability of psychiatric treatment for him. Mr Amgad relies on a disability support pension for his income[93]. The Tribunal was not persuaded that the psychiatric treatment proposed by the Agency at St Vincent’s Hospital was appropriate or available to Mr Amgad based on the limited independent information provided by the Agency. Further, the Tribunal is satisfied on all the evidence going to Mr Amgad’s psychosocial impairment that psychiatric treatment is not likely to come close to curing that impairment, though it may improve his functionality.
[93] RTB, at 262
For all these reasons, the Tribunal is satisfied, pursuant to section 24(1)(b) and Rules 5.4 to 5.7 of the Access Rules that Mr Amgad’s psychosocial impairments are, or are likely to be, permanent and section 24(1)(b) is satisfied in relation to them.
Assessment of permanency: physical impairments
In relation to Mr Amgad’s treatment for RA, the Tribunal understands there is no dispute from the Agency that Mr Amgad’s treatment is ongoing and substantial and there are no known, available and appropriate treatments that can come close to removing or curing the medical condition or its resultant impairments.
The Agency submits however that “in relation to the balance of Mr Amgad’s physical impairments there is an absence of medical evidence before the tribunal to be positively satisfied he has engaged in all known, available and appropriate treatments”[94]. The position of the Agency has not changed in this regard since the internal review decision[95].
[94] RTB, page 268 and reiterated at hearing
[95] This is also the position as stated in its SOFC, at RTB 9??? [not sure that is right]
The Tribunal respectfully concludes it is not assisted by this submission for several reasons.
Firstly, the submission does not correlate with the facts of Mr Amgad’s medical conditions and consequential impairments as the Tribunal has found them. The Tribunal has found that RA is a factor in all of Mr Amgad’s physical impairments. The Access Guidelines are just that, meaning they are guidance only and the categorisations in List B assist decision makers by presenting a clear position for situations that are unambiguous and positively meet the criteria in Rules 5.4, 5.6 and 5.7. When the facts are more complex, however, as they are in this case as Mr Amgad’s impairments cannot wholly be attributed to RA, even those in his hands where the evidence of RA is most emphatic, the Tribunal should whilst giving weight to the Agency’s policy position on RA, progress to consider the impairments as the Tribunal has found them against each of Rules 5.4 to 5.7.
Secondly, the submission does not capture consideration of whether the envisaged treatment is “likely to remedy the impairment” and reflects an incomplete and incorrect view of the law. This is discussed above and unnecessary to repeat here.
Thirdly, the Respondent invites the Tribunal to rely on a passage in Mr William Lee’s September 2022 report in which he states that his treatment of combined manual therapy and stretching has been used with good effects and he recommends Mr Amgad’s physiotherapy be ongoing.
The Tribunal has some difficulty attributing the meaning to Mr Lee’s statement the Agency proposes. Whilst the Tribunal accepts Mr Lee is recommending Mr Amgad continue with a treatment that is known – physiotherapy – and is appropriate – as it has been safely administered and the results have been positive - Mr Lee’s statement cannot in the Tribunal’s view reasonably be construed as an opinion as to the prospects of his treatment remedying the impairment. Mr Lee also does not comment on the availability of his treatment to Mr Amgad. Without diminishing the onus Mr Amgad bears to positively satisfy the Tribunal he meets all relevant statutory criteria, the Tribunal is not assisted by a submission that Mr Amgad’s physical impairments are likely to be close to cured by available treatment without directing the Tribunal to tangible evidence of what that treatment could be and how it would be available to and appropriate for Mr Amgad.
The Tribunal now turns to address the evidence before it about the treatment Mr Amgad has received of his physical impairment, other than his rheumatology treatment which is addressed above. There is no contest between the parties, and the Tribunal accepts, that such treatment is confined to physiotherapy.
The Agency further contends that a walking stick is a “commonly used item” for the purposes of Rule 5.8, and therefore, if Mr Amgad can mobilise with his walking stick, he will not satisfy the requirements of Rule 5.8(a)[121].
[121] Rooney and NDIA [2021] AATA 3523, at [19]
In the decision of Rooney, the AAT identified four characteristics as indicative of commonly used items, being that the thing:
(a)is generally accessible
(b)can be used without the need for complex or specialised customisation or installation
(c)is relatively simple to use; and
(d)is relatively inexpensive.
The AAT in Rooney found on the facts of that case that specially made crutches as well as orthotics were commonly used items.
The Tribunal understands that the indicia in Rooney are not intended to be determinative. That is, if an item reflects all four indicia, it may be commonly used. In this Tribunal’s view, consideration of the indicia stated in Rooney does not detract from the central question the Tribunal must address and answer, which is whether an item is commonly used. In this regard, the Tribunal notes the comments of the AAT in Beaumont, which rejected a walker as a commonly used item:
Glasses are commonly used items because they are routinely used by a wide range and large number of people to improve vision. People do not commonly use walkers.
In this Tribunal’s view, a wide range and large number of people do not mobilise with the use of a walking stick.
The Tribunal proceeds on the basis that a walking stick is not a commonly used item within the meaning of Rule 5.8. Applying the above reasoning, the Tribunal also considers the current and recommended grab rails in Mr Amgad’s home as assistive technology and equipment that are also not commonly used. Although the Agency made no submissions on the issue, the Tribunal considers orthotics are commonly used items. There is some evidence before the Tribunal that Mr Amgad wears a neck brace. This is most apparent in the photos in Ms Sale’s report. However, Mr Amgad raised no clear claims himself as to the nature and extent of his reliance on a neck brace, Ms Sale makes no comment about the need for it and there is some evidence of his treating practitioners discouraging its use. Accordingly, the Tribunal does not consider the issue further.
The Tribunal applies the definition in the Agency’s Home modification Guideline, that “home modifications are custom-built changes to your home to help you access and use areas of your home” and notes the reference by way of example to the widening of a doorway as a “minor change”. The Tribunal accordingly finds the proposal to remove the shower screen to improve access to the shower recess as a home modification within the meaning of Rule 5.8 (a).
Mobility
The Access Guideline describes mobility as follows:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of a bed or a chair. We consider how you get out and about and use your arms or legs.
In Madelaine, the AAT held that the threshold requirements to achieve functional capacity with respect to mobility are ‘relatively modest’:[122]
A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community…
The use of the phrase move around … to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.No particular distance is specified in the Guideline as defining this level of mobility, but it seems reasonable to suggest that a person who can travel 50 m by herself has the capacity to do the things referred to in the Guideline.[122] Madelaine at [104]–[105].
The Respondent submits that as Mr Amgad mobilises in the home with the aid of the walking stick and can walk a total distance of 460 metres every second day, he does not have a substantially reduced functional capacity in the mobility activity area[123]
[123] RTB, page 271
Mr Amgad reports in his May 2023 statement[124] that he uses several mobility aids. These include a walking stick and special shoes which he uses inside and outside the home. Outside the home he uses in addition a knee and heel support. He uses the walking stick when he needs to stand for two minutes or longer. His doctor encourages him not to use the stick, but he experiences pain and weakness in his legs and his legs give way. He has been using the stick for a long time. He finds it difficult to walk more than 100 metres. He can walk up to 200 metres with his walking stick without taking a break[125]. He is independent in transferring from the bed, but it takes him longer[126].
[124] RTB, page 240, 243
[125] RTB, page 243
[126] RTB, page
At the hearing, Mr Amgad both reiterated and expanded upon this evidence as follows.
(a)He can walk the approximately 200 metres each way to his local IGA supermarket but needs to stop and rest half-way because of pain in his ankles. It takes him approximately 10 minutes to walk one way.
(b)He relies in some part on a single prong walking stick, for standing, transfer and walking.
(c)He uses only the stick to ensure he exercises and remains independent of a four-wheel walker and a wheelchair for as long as possible.
(d)He needs new shoes every year.
(e)His functional capacity in relation to mobility has declined since Ms Sale’s assessment conducted in December 2023.
(f)He falls a lot inside of his home, sometimes he is injured and other times not. Ms Sale noticed blood on his hand or arm during her assessment and Mr Amgad explained to her this was caused by a fall.
(g)He is very careful in the home to avoid injury particularly in wet areas.
Ms Sale is the expert witness who has most closely assessed Mr Amgad’s functional capacity. She conducted a functional capacity assessment of Mr Amgad in December 2023[127]. She is the only expert in the proceeding who has prepared her report concerning Mr Amgad’s functional capacity in accordance with the relevant Tribunal guidelines for expert evidence and opinion. Her recommendations are based on consideration of the available documentary evidence, consideration of the home environment and available supports, maximising Mr Amgad’s safety and independence and his demonstrated functional capacity[128].
[127] RTB, at page 1463
[128] RTB, at page 1458, 1480
Ms Sale states in summary that Mr Amgad in respect of his physical impairments experiences difficulties undertaking tasks that involve:
· mobilising unaided
· walking for more than 10 minutes without access to a seated break
·static unsupported standing
·engaging in moderate to heavy manual handling activities
·sustained gripping and grasping activities of the hands
·frequent or sustained bending, twisting and stooping movements involving the lumbar spine
·sustained neck flexion and/or rapid head/neck movements
·using stairs[129]
[129] RTB, at pages 1457-1458
In assessing Mr Amgad’s mobility, Ms Sale makes the following observations[130]:
(a)Mr Amgad appears to be reasonably mobile during the day. He walks to and from the local IGA store located 230 metres from his home every second day[131]. He is required to walk a similar distance to catch the bus[132] which he catches regularly[133] including to his GP practice. He would probably need a minute’s rest before walking again. He can access all areas of his home. She observed him walking up and down the ramp at the front of his house several times and down the driveway along the side of the house[134]. In her oral evidence, Ms Sale confirmed that Mr Amgad did not need a break during the two-hour assessment.
(b)He mobilises reasonably safely and comfortably around his home with the use of a single prong walking stick. His pace is somewhat slow. He transferred in and out of his car independently.
(c)His tolerance with static standing was poor and he frequently sought external supports to lean against
(d)He can reach upper kitchen cupboards and the clothesline
(e)He prefers to sit on the floor to access items at floor level as bending exacerbates his back and left side hip pain
(f)He uses his walking stick or external supports to complete essential transfers
(g)He has a current drivers’ licence and drives and catches the bus independently.
[130] RTB, at pages 1472-1473
[131] RTB, at page 1490
[132] RTB, at page 1490
[133] RTB, at page1474
[134] RTB, at page 1472
Ms Sale concludes that Mr Amgad is able to mobilise fully[135]. She concludes that in the domain of mobility that Mr Amgad does not require assistance.
I support a range of aids, equipment and minor home modifications as detailed in section … Based on my observations at assessment, Mr Amgad does not have a requirement for formal supports in this domain[136].
[135] RTB, at page 1490
[136] RTB, at page 1458
Ms Sale makes a number of recommendations for assistive equipment[137]. She clarified at hearing that the following two apply to the mobility domain:
(a)Mr Amgad’s glass shower screen be removed altogether to ensure he has safe access in and out of the shower recess
(b)A grab rail be installed at the internal step of his home that connects the kitchen and laundry[138] to ensure his safety.
[137] RTB, at pages 1482-1484
[138] RTB, at page 1464
Ms Sale did not make a recommendation for a walking stick. She does however conclude that Mr Amgad’s use of the stick is appropriate and suitable for him given his observed level of mobility[139]
[139] RTB, page 1491
Ms Sale stated at the hearing that she did not recommend further equipment or modifications to assist with mobility because they were not needed. As Mr Amgad was mobilising reasonably safely and independently with his walking stick, certainly around all internal and external areas his home, he did not present as needing more stable mobility items such as a four-wheel walker or walking frame. She did not observe any significant wincing or grimacing pain behaviours when he was performing transfers or moving about his home.
She noted that Mr Amgad did not need to rest or lay down during the two hours of her assessment.
Dr Chu, in his supporting evidence form to Mr Amgad’s September 2022 access request, has marked “mobility” as an activity for which Mr Amgad does not require assistance. There are three pro-forma check boxes for marking “yes” if the prospective participants requires “special equipment”, “assistive technology” or “home modifications”. These boxes are blank as is the space for him to detail the assistance required[140]. In November 2020, Dr Chu notes Mr Amgad as being able to walk 200 metres before needing a rest break[141]. In 2018, he writes in support of Mr Amgad’s disability support pension that he has some ankle involvement which limits his walking distance to 200 to 400metres[142]
[140] RTB, page 71
[141] RTB, page 35
[142] RTB, page 941
Mr Sawan noted in August 2017 that Mr Amgad is unable to walk more than 100 metres without resting, he is unable to kneel or lunge and his hands have limited movement and strength. Mr Amgad is unable to mow the lawn and perform some daily tasks. Mr Sawan did not give evidence. Although it is not stated whether these limitations are reported or observed Mr Sawan is specific about the degrees of movement in Mr Amgad’s joints and the conclusions are consistent with other evidence.
Dr Cantali does not positively identify Mr Amgad as having diminished functional capacity in the domain of mobility in her various reports and forms. She positively states he has “no issue” with his mobility in September 2022[143].
[143] RTB, page 891
There are a number of reports amongst the summonsed material from Concord hospital indicating that Mr Amgad is not fully compliant with his RA medication. The Tribunal understands his non-compliance is at least in part due to his concerns about the side effects of that medication. In a report dated 29 March 2022, Dr Katherine Nguyen notes that Mr Amgad reported that he had self-reduced his medication and that the behaviour is repeated and the subject of ongoing discussion with him. She states:
In summary, Jamal does have ongoing mild symptoms of rheumatoid arthritis which correspond with self-reduction of methotrexate and hydroxychloroquine. We encouraged Jamal to continue taking his medications at the full dose. Unfortunately, he is quite insistent and is not likely to comply… At this point in time I may also show him the MRIs which have demonstrated joint erosion as a visual reminder of the importance of medication compliance”[144]
[144] RTB, page 991
In a hospital admission record from May 2020, Mr Amgad is noted as having no falls history and a falls risk rating of nil[145].
[145] RTB, page 1322
Based on its assessment of the above information, the Tribunal accepts the following:
(a)Mr Amgad safely mobilises inside and outside his home with the support of a single prong walking stick, including for standing in one place, transfers between a standing position and sitting on the floor or a chair, and walking. His movement and transfers are somewhat slow.
(b)His tolerance for static standing is poor and he relies on external supports for this task.
(c)Mr Amgad is reasonably mobile. He is able to move about all areas of his home for two hours without resting. He leaves the house at least every second day, walks a distance by road of over 400 metres and completes the task for which he left the house, such as a light supermarket shop or attending a medical appointment. He can transfer on and off a bus and in and out of his car.
(d)His walking stick has not been prescribed by a practitioner. He purchased it and started using it of his own initiative. Its use has not to date been endorsed or prescribed by his previous or current treating GPs. His previous and longstanding GP, Dr Chu, discouraged the use of the stick.
In considering whether Mr Amgad’s circumstances positively satisfy the deeming provision the Tribunal notes the view of the ART in Foster, that “the purpose of the Rule …. is to enable the s 24(1)(c) enquiry to be truncated in clear cases that fall within that Rule”.
In the Tribunal’s view, the circumstances of Mr Amgad’s mobility are not such a clear case.
The Tribunal also notes that the Agency’s Access Guideline envisages that equipment is prescribed by the prospective participant’s doctor, allied health professional or other medical professional for Rule 5.8(a) to be satisfied.
The information before the Tribunal directed to the specific question asked of it by Rule 5.8, being an assessment of whether Mr Amgad is unable to effectively or completely participate in the activity of mobility, or perform the required tasks of mobility, without his walking stick in particular, but also without the grab rails already installed and proposed by Ms Sale, is limited. Ms Sale’s assessment is, as noted above, conducted with acceptance that Mr Amgad is using the walking stick. Whilst Ms Sale confirms the walking stick is appropriate and suitable for him, and her evidence in this regard assists and is given weight to by the Tribunal, her assessment is nonetheless not directed to answering the question posed by Rule 5.8. Ms Sale did not specifically direct her attention to determining what Mr Amgad could or could not do without the walking stick.
The Tribunal places weight on the evidence of Dr Chu, who at several opportune points in time does not positively indicate Mr Amgad has a need for supports for his mobility.
The Tribunal places weight on the decision by Mr Amgad to prescribe himself the walking stick, the discouragement of his GP of many years to his continuous use, and the absence of any commentary on the issue in the reports from his physiotherapists. It places weight on the records of Concord hospital noting an ongoing issue of non-compliance by Mr Amgad with this RA medication and the consequential negative impact upon Mr Amgad’s RA symptoms. From this, it draws a conclusion that the impacts of his RA may be improved with improved compliance as well as notes a degree of conscious rejection of the professional advice of his treating practitioners.
Whilst it acknowledges Mr Amgad’s claims that his physical impairments have worsened since Ms Sale’s assessment as well as his claims to fall often, the Tribunal finds it does not have sufficient evidence to make any meaningful findings as the frequency, circumstances in which Mr Amgad has fallen and causes thereof. Ms Sale does not address claims of falls in her report and the Tribunal does not have information before it that could explain how Mr Amgad has progressed from a no falls risk, in 2020, to his claimed present day experience of falling often, with no records to support. Similarly, the evidence is not sufficient for the Tribunal to reach any meaningful conclusions in response to Mr Amgad’s claims the impact of his impairments has worsened. The Tribunal generally found Mr Amgad’s evidence at hearing to be consistent with his claims as stated in his May 2023 statement.
Whilst the Tribunal accepts Mr Amgad has a loss of functional capacity across all tasks comprising the activity of mobility, the evidence is unclear as to the degree to which Mr Amgad relies upon his walking stick in effectively or completely performing those tasks. The Tribunal accepts the evidence in relation to the task of standing is more persuasive. However, the extent of his reliance upon his walking stick for the task of mobilising and transferring to and from standing is unclear.
Mr Amgad did not make Dr Chu, Mr Lee, Mr Sawan or Ms Cantale available as witnesses. Had he done so, this may have assisted the Tribunal to resolve some of these anomalies and gaps in the evidence.
Accordingly, on the evidence before it, the Tribunal is not satisfied that the terms of Rule 5.8 are met in relation to the activity of mobility. The Tribunal does not accept Mr Amgad is unable to effectively or completely participate in the activity or the tasks in the activity, without his walking stick and his current and recommended grab rails.
Equally having regard to the above evidence and analysis, the Tribunal is not satisfied that Mr Amgad’s functional capacity in the activity area of mobility is substantially reduced.
In so concluding, the Tribunal also places weight on Ms Sale’s oral evidence that she did not consider any more stable support such as a four-wheel walker was needed by Mr Amgad at this time.
Self-care
With respect to the activity of self-care, the Access Guideline provides:
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.[146]
[146] Access Guideline, 8.
The Respondent accepts that Mr Amgad has difficulty cooking, performing heavy cleaning tasks and changing his bed sheets and therefore has reduced functional capacity to perform some self-care tasks. It submits that he can however shower with the use of a shower stool, dress, groom and prepare simple meals independently and therefore his functional capacity is not substantially reduced in this domain[147].
[147] RTB page 272
In his May 2023 statement, Mr Amgad reports the following regarding his capacity for self-care:
(a)his bathroom has rails to support him and prevent him from falling. He has made reports to the NSW Department of Housing to conduct repairs and replace the shower screen as it is unstable and wobbly[148].
(b)he finds it very difficult to maintain the house
(c)he tries not to use the house, including the kitchen, so it stays clean
(d)he cooks simple foods to avoid leaving food on the stove, burning himself and dropping food, all of which he has done before because of his weak hand grip on pots and utensils and his forgetfulness
(e)he cannot carry lots of things so he shops for groceries every two days
(f)he changes the sheets only once a year because he forgets and he finds it difficult to do by himself.
[148] RTB, page 243
At the hearing, Mr Amgad both reiterated and expanded upon this evidence as follows.
(a)his hands are far worse since Ms Sale conducted her assessment
(b)he is unable to cook food because of the stiffness, pain and weakness in his hands
(c)he only uses the stove to make coffee, and ready-made noodles
(d)he eats dry grocery foods like sliced meats and tinned food because he cannot cook
(e)he cannot hold anything weighing more than one kilo in either hand
(f)he does not make any mess because he lives alone
(g)he dusts the house maybe once a year
(h)he wipes the floors once in a blue moon
(i)he is unable to hold a mop stick. He uses a cordless vacuum instead but for only a maximum of five minutes and using both hands as his hands become numb and so painful he cannot tolerate it and has to stop
(j)since Ms Sale’s assessment he has vacuumed only a few times and a few rooms, he cannot remember when he last vacuumed.
(k)he washes his clothes in the washing machine
(l)he has fallen many times, the shower is not safe and he is waiting on the NSW housing department to fix it
(m)he avoids wet areas to prevent falling
(n)He is unable to change the sheets on his own. He will go out into the street and ask a passerby to help him change the sheets.
Ms Melissa Sale in December 2023 reported:
(a)Mr Amgad is independent with simple meal preparation including noodles and vegetables on the stove, toast, cereal, eggs, sandwiches and garlic bread[149]
(b)He has pain in his hands when washing up and avoids using cutlery to minimise his pain
(c)Mr Amgad is independent with shopping. He goes frequently to minimise what he has to carry
(d)He has difficulty with heavy cleaning. He manages by a combination of not carrying out heavy cleaning and relying on neighbours and people from church
(e)He is able to manage light cleaning, tidying and laundering through modification and pacing
(f)He struggles to change the sheets due to pain and lack of motivation
(g)Cleanliness of sheets in the spare bedroom was considerably neglected.
[149] RTB, page 1476
Ms Sale did observe some visual distress when he was getting himself dressed and undressed, particularly to his shoulder.
In the activity of self-care, Ms Sale recommends that Mr Amgad use the following to increase safety:
(a)a long-handled sponge to improve ease of showering by eliminating the need for bending and reaching and a new shower stool to replace his current one
(b)a robotic vacuum and mop to improve independence with cleaning tasks
(c)a food preparation system, kettle tipper and automatic cut off timer to increase safety when cooking
(d)support worker assistance to provide advice and support around nutrition and develop skills to re-engage in cooking
(e)periodic, commercial deep cleaning of his home.
Dr Cantali also comments on Mr Amgad’s capacity for self-care, stating that he lacks motivation to undertake daily tasks[150]. She notes in her March 2021 report that Mr Amgad’s Vineland score in the personal subdomain which addresses his self-sufficiency in eating, dressing, washing, hygiene and self-care as well as cleaning up after himself, chores and food preparation place him in a percentile rank of less than 1%. No further details are provided. Rachel de Claro also suggests that Mr Amgad finds it difficult to maintain the cleanliness of his house when he is not doing so well[151]
[150] RTB, page 26
[151] RTB, page 49
Dr Chu, in his September 2020 Supporting Evidence Form to the first access request states only that Mr Amgad needs assistance in the activity of eating and drinking and preparing food and shopping. He repeats this opinion in a later supporting evidence form dated February 2021[152] Dr Chu does not note Mr Amgad as requiring assistance with showering/bathing, toileting or dressing. In his letter dated 11 November 2020, Dr Chu notes Mr Amgad as having “occasional difficulty” in performing his personal hygiene and household chores[153]. In July 2022, he notes Mr Amgad has difficulty with daily living activities as a result of his RA in his hands[154].
[152] RTB, page 42
[153] RTB, page 35
[154] RTB, page 64
The Tribunal accepts the Agency’s submission that while Mr Amgad gave some evidence to suggest his functional capacity has deteriorated since Ms Sale’s assessment it is difficult to discern from his evidence precisely what he says has changed in relation to self-care. The Tribunal finds Mr Amgad’s evidence as to his capacity for self-care is largely consistent between his May 2023 statement, his evidence at hearing and the observations of Ms Sale in her report and confirmed at hearing.
Having considered the material before it, the Tribunal finds as follows:
a) Mr Amgad can eat and drink independently. With respect to meal preparation, he can prepare simple meals. He cannot do more cooking because he lacks the strength, dexterity and has too much pain in his hands to hold pans and utensils. He also lacks some motivation to cook as well as a degree of skill.
b) Mr Amgad can wash his clothes in the washing machine by sitting on the floor to load and unload the machine.
c) Mr Amgad cannot complete heavy cleaning tasks such as changing the bed sheets, mopping all wet areas, periodic whole of house dusting and deep cleaning the shower recess.
The Tribunal accepts that Mr Amgad requires assistance with heavy cleaning and the provision of low-cost assistive technology and minor supports as recommended by Ms Sale to increase his independence across a number of self-care tasks. It accepts his capacity for self-care is reduced by reason of his permanent physical and psychosocial impairments. Nonetheless, he generally manages to shower, groom, dress, eat, wash his clothes and carry out light cleaning.
The Tribunal accepts Mr Amgad modifies how he conducts his self-care by pacing himself to ensure his safety and not make his physical impairment and symptoms worse. However, there is no one task he forgoes altogether or requires AT, equipment or in person supports to be able to carry out the task as a whole. It considers these are only a discreet component of the range of tasks or actions that comprise the activity of self-care. For this reason, the Tribunal finds Mr Amgad does not usually require assistance from other people, assistive technology, equipment or home modifications to participate in the activity of self-care or to perform tasks or actions required to undertake or participate in the activity of self-care.
The Tribunal finds Mr Amgad’s circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied that the reduction in Mr Amgad’s functional capacity to undertake the activity of self-care is substantial. Accordingly, the Tribunal finds Mr Amgad’s impairments do not result in substantially reduced functional capacity to undertake the activity of self-care.
Conclusions on substantially reduced functional capacity
The Tribunal is satisfied Mr Amgad’s psychosocial impairments result in substantially reduced functional capacity to undertake the activity of social interaction. Accordingly, the requirement in s 24(1)(c) is met.
Does Ms Amgad’s psychosocial impairment affect his capacity for social or economic participation?
Section 24(1)(d) requires that the impairment or impairments affect Mr Amgad’s capacity for social or economic participation.[155] This is not in contest between the parties and is clearly bourne out on the evidence before the Tribunal. Accordingly, the requirement in s 24(1)(d) is met.
Is Mr Amgad likely to require support under the National Disability Insurance Scheme for his lifetime?
[155] Respondent’s closing submissions.
Section 24(1)(e) requires that Mr Amgad is likely to require support under the NDIS for his lifetime.
The courts have confirmed that the focus of s 24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems[156]. It would be wrong for the Tribunal to ask itself whether supports available under other systems would be comparable to what would be available under the NDIS.[157] The Access Guideline provides:
NDIS supports are investments that help you build or maintain your functional capacity and independence, and help you work, study or take part in social life …
… When we decide if you’ll likely need support under the NDIS for your whole life, we consider:
·your life circumstances
·the nature of your long-term support needs
·whether your needs could be best met by the NDIS, or by other government and community services.
[156] Foster, [93].
[157] Foster, [95].
The Agency has made no submissions to the Tribunal on section 24(1)(e).
Mr Amgad’s evidence, which the Tribunal accepts, is that he lives alone and his only income is the disability support pension which he has been receiving for a substantial period of time. The Tribunal has accepted that Mr Amgad’s permanent impairments substantially reduce his functional capacity to undertake the activity of social interaction. In evidence are recommendations that the supports he requires in response to those impairments include support worker assistance, psychiatric and psychological supports. From the reports of Dr Cantali, Dr Chew and Mr Camacho, the Tribunal is satisfied the nature of Mr Amgad’s current support needs is likely indicative of the nature of his long-term support needs. Mr Amgad gave consistent evidence, which the Tribunal accepts, that he is unable to afford psychiatric and support worker supports.
Having considered Mr Amgad’s circumstances and the nature of his long-term support needs, the Tribunal is satisfied that he is likely to require support under the NDIS for his lifetime, and that those support needs are not most appropriately provided by other systems. Accordingly, the requirement in s 24(1)(e) is met.
The Tribunal is satisfied that each of the disability requirements in s 24(1) are met. As Mr Amgad meets the age requirements in s 22, the residence requirements in s 23, and the disability requirements in s 24, the Tribunal finds he meets the access criteria to become a participant of the NDIS in section 21 of the Act.
Does Mr Amgad meet the early intervention requirements in relation to his physical impairment?
It remains to be considered whether Mr Amgad’s physical impairment, not being found to give rise on its own or together with his psychosocial impairment, to give rise to substantially reduced functional capacity in any of the six activity areas, would cause Mr Amgad to meet the early intervention requirements.
The Tribunal has found above that Mr Amgad meets the requirements of section 25(1)(a) of the Act.
Rule 6.9 of the Access Rules sets out the mandatory considerations for the Tribunal in determining whether the provision of early intervention supports for Mr Amgad is likely to reduce his future need for supports:
(a) the likely trajectory and impact of the person's impairment over time; and
(b) the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
The Tribunal reiterates its finding above that Mr Amgad’s physical impairment is joint degeneration and reduced joint mobility and function of the cervical and lumbar spine and the joints of the hands, wrists, knees, right ankle and left shoulder. There is minimal evidence before the Tribunal explicitly directed to the likely trajectory of these impairments, however the records produced under summons from Concord Hospital clearly demonstrate a past trajectory of continued joint degeneration over a period of at least a decade. That has occurred despite Mr Amgad having being diagnosed and medically treated with RA since approximately 2011. Further, there is no information before the Tribunal to positively suggest that Mr Amgad’s joints can be repaired.
The Tribunal notes, as it does earlier, the opinion of Dr Chu that Mr Amgad requires regular physiotherapy to prevent further prevent deterioration of functional capacity. It notes the oral evidence of Mr Amgad that his treating physiotherapists at Five Dock Physio have recently told him he needs to come more often. The Tribunal notes its earlier finding that the focus and effect of physiotherapy treatment is to address the impacts of the impairment on Mr Amgad’s functional capacity rather than remedy the impairment itself.
For these reasons, the Tribunal is not satisfied that the provision of early intervention supports to Mr Amgad is likely to benefit him by reducing his future needs for supports in relation to his disability. Accordingly, the requirement in section 25(1)(b) is not met and it follows from there that Mr Amgad does not meet the early intervention requirements in section 25 in relation to his physical impairment.
DECISION
The Tribunal sets aside the decision under review and decides in substitution that Mr Amgad meets the access criteria to become a participant of the National Disability Insurance Scheme as set out in s 21 of the National Disability Insurance Scheme Act 2013.
Date(s) of hearing: 6 and 7 March 2025 Applicant:
Counsel for the Respondent:
Mr J Amgad, self-represented applicant
Ms N Maddocks, 9 Selborne Chambers
Solicitors for the Respondent: Ms B McNamara, Sparke Helmore Lawyers, Sydney
0
8
0