Butic and Chief Executive Office of the National Disability Insurance Agency (NDIS) - [2025] ARTA 76

Butic and Chief Executive Office of the National Disability Insurance Agency (NDIS) [2025] ARTA 76 (6 February 2025)
Applicant/s:  Silas Butic
Respondent:  Chief Executive Office of the National Disability Insurance Agency
Tribunal Number:                2020/6203

Tribunal:Senior Member K Parker
Place:Melbourne
Date:6 February 2025

Decision:The Tribunal affirms the decision under review.

...............[SGD].........................................................
Senior Member K Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of decision to confirm earlier decision by the Respondent refusing to grant access to the Applicant as a participant in the National Disability Insurance Scheme (NDIS) – Applicant has disability arising from various physical and psychosocial impairments – Applicant immigrated to Australia as a refugee and has English as a second language – whether access criteria met under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) – whether “disability requirements” met under 24 or whether “early intervention requirements” met under s 25 of the NDIS Act – Decision Under Review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
Cases
Kelly v National Disability Insurance Agency [2024] FCA 1462
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) 295 FCR 521
Other
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1)(Miscellaneous Provisions) Transitional Rules 2024 (Cth)
National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 14 October 2024 applicable to NDIS requests made before 3 October 2024) OG Applying to the NDIS - pre-legislation changes.pdf
Statement of Reasons
INTRODUCTION

This application is about whether the Applicant, Mr Silas Butic, should be granted access as a participant in the National Disability Insurance Scheme (‘NDIS’). The NDIS is administered by the National Disability Insurance Agency (‘NDIA’) under the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) and its associated rules.
Mr Butic seeks review of a decision by an NDIA “reviewer” made on 25 August 2020[1] under s 100(6) of the NDIS Act (‘Internal Review Decision’), which confirmed an earlier decision by a delegate of the Chief Executive Officer (‘CEO’) of the NDIA, made on 7 August 2020, not to grant access to Mr Butic as a participant in the NDIS.[2] Mr Butic lodged an application for review with the Administrative Appeals Tribunal (‘AAT’) on 9 October 2020 (‘Original Access Decision’). In this proceeding before the Tribunal, Mr Butic was self-represented. He immigrated to Australia as a refugee and has English as a second language. The NDIA was represented by Mills Oakley and by Ms Natalie Blok of counsel.
[1] T-Documents, T1A & T2.
[2] Ibid, T5/66 & 67.
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘this Tribunal’) following the abolition of the AAT. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal. Neither party disputed that this Tribunal has authority to deal with the present application. Specifically, the Tribunal has authority to undertake this review under s 18 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’), operating in conjunction with s 103 of the NDIS Act.
For the reasons set out below, the Tribunal affirms the Decision Under Review being the Internal Review Decision. This means that Mr Butic is not granted access as a participant in the NDIS.
ISSUES
The primary issue arising for consideration in this application is whether Mr Butic meets the access criteria under s 21 of the NDIS Act.
The NDIA accepts that Mr Butic meets the “age requirements” under s 22 and the “residence requirements” under s 23 of the NDIS Act.[3]
[3] T-Documents, T1A/7.
This application will require a decision to be made about whether Mr Butic meets either the “disability requirements” under s 24 or the “early intervention requirements” under s 25 of the NDIS Act.
Put broadly, the NDIA’s position is that Mr Butic does not meet either of those requirements. The NDIA contends that Mr Butic’s impairment/s are not permanent, and even if they were, they do not give rise to a substantial reduction in Mr Butic’s functional capacity in any one or more of the six prescribed activities listed in s 24(1) of the NDIS Act. These prescribed activities include “communication”, “learning”, “mobility”, “social interaction”, “self-management”, and “self-care.” The NDIA contends that Mr Butic has not undertaken all available treatments for his impairments which are attributable to a psychosocial disability.
Mr Butic does not accept that his main problems are his psychosocial issues. He sees his problems as being physical and that they relate to the constant pain he experiences. He does not accept that treating his mental health conditions is likely to assist him.
In respect of the early intervention requirements under s 25 of the NDIS Act, the NDIA contends that in respect of the type of support which Mr Butic has requested, they are not “early intervention” supports and even if they were, they are also more appropriately provided under another general service system.
LEGISLATIVE REGIME
Section 21 of the NDIS Act provides that a person satisfies the access criteria if they meet:
(a)the “age requirements” under s 22;
and, at the time of considering the access request;
(b)the “residence requirements” under s 23 of the NDIS Act; and
(c)the “disability requirements” under s 24 or the “early intervention requirements” under s 25.
The NDIS Act was amended in 2024 by the enactment of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024. Some of the amendments impact upon the provisions in relation to who is able to access the NDIS. However, those amendments will not apply in respect of access requests which were made prior to 3 October 2024.[4] That is the case in Mr Butic’s circumstances and so this Tribunal will apply the access provisions as they existed prior to the 2024 legislative amendments.
[4] NDIA’s Further Submissions as referred to in paragraph [28].
The rules relating to who should be granted access to the NDIS are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)(‘Access Rules’). The NDIA has issued guidelines relating to requests for access to the NDIS made before 3 October 2024, namely, National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 14 October 2024)(‘Access Guidelines’).[5]
[5] Link to these guidelines can be found on page 2 of this Statement of Reasons.
MR BUTIC’S FAMILY BACKGROUND AND LIVING CIRCUMSTANCES
Mr Butic is a 45-year old man from South Sudan. He moved to Kenya in 2005 and then immigrated to Australia in 2013 as a refugee.[6] He was married in 2005 in Kenya and has since separated. From information in the documents lodged with the Tribunal, the separation was acrimonious and resulted in various legal proceedings. He has three teenage children but they do not live with him.[7] They live with Mr Butic’s estranged ex-wife in Perth.[8]
[6] Ibid, T4E/43, and HTB TB8/95.
[7] HTB, TB5/68.
[8] Ibid, TB5/70 and Transcript, P-115.
Mr Butic’s father is deceased (reportedly, he was “killed”).[9] Ms Butic’s mother lives in Sudan.[10] Mr Butic has five siblings. One of his siblings is deceased (reportedly, he was “killed”) and the other three siblings live in South Sudan.[11]
[9] Ibid, TB5/70.
[10] Ibid.
[11] Ibid, TB8/95.
Mr Butic was raised in a war-torn county. His formal education was either limited or non-existent. He has either only undertaken a total of three years of schooling or has not done any schooling.[12]
[12] The evidence about this is inconsistent. Specifically, some documents report that Mr Butic had done three years of schooling (HTB, TB5/70 & TB8/95) and at the hearing, Mr Butic gave evidence he had did not do any schooling. Nothing turns on this factual discrepancy. Either way, the Tribunal has found that Mr Butic’s formal education is either limited or non-existent.
Mr Butic has not engaged in paid employment whilst living in either Kenya or Australia.[13] At the hearing, Mr Butic told the Tribunal that he had not abandoned the prospect of employment but the problem was that “all jobs involved standing, sitting up, moving around.” Mr Butic said, “If there was any light duties that wouldn’t involve all these things, like using just my own hands, I would be ready to do it.”[14]
[13] Ibid, TB8/95.
[14] Transcript, P-117.
Mr Butic’s first language is Dinka (Arabic) and he was assisted at the hearing by a Dinka interpreter - except for at the commencement of the hearing, as a result of the previously booked interpreter not attending the hearing. Urgent arrangements were made for alternative interpreter to attend, although, he was not a certified interpreter at the level usually required by the Tribunal. However, the parties agreed to proceed with this interpreter to avoid an adjournment of the hearing. In the view of the Tribunal, the alternative interpreter provided excellent interpreting services and Mr Butic did not complain about the quality of his services.
REQUEST FOR ACCESS
In the Original Access Decision, the delegate found that Mr Butic did not meet the disability requirements in s 24 of the NDIS Act, and specifically that he did not meet s 24(1)(b) because he did not have an impairment which is, or likely to be, permanent. The delegate does not refer to the early intervention requirements under s 25 and whether or not that were met, in the alternative, by Mr Butic.
In the Internal Review Decision, the delegate explained that the main issues with Mr Butic’s application to be granted access to the NDIS was “meeting the permanency of impairments, substantially reduced functional capacity and early intervention requirements” and that there are other community and government programs that may support Mr Butic’s needs. Specifically, the delegate stated that Mr Butic could utilise a Chronic Disease Management Plan and Mental Health Care Plan (with referral from his General Practitioner) to assist in managing his impairments.[15]
[15] T-Documents, T2/13.
In relation to the early intervention requirements under s 25 of the NDIS Act, the delegate accepted that Mr Butic met the criterion under s 25(1)(b) because early intervention supports are likely to reduce Mr Butic’s future need for support in relation to disability. The delegate stated that these supports include heat packs for pain relief, gentle lumbar spine mobilisation with ultrasound therapy, gentle lower back and limb stretching and strengthening exercises, supervised exercises, consulting with Dr Oludare during flare-ups, psychology, psychiatry, and a physical rehabilitation program.[16] However, the delegate did not accept that Mr Butic has an impairment which is permanent or likely to be permanent and therefore, that he does not meet s 25(1)(a).
[16] Ibid, T2/21 & 22.
Mr Butic sought a review of the Internal Review Decision. On Mr Butic’s “Application for Review of Decision” form that he lodged with the former AAT, Mr Butic referred to having two medical conditions, being “lumbar canal stenosis” and “depression.” He indicated on this form that he needed support.[17]
EVIDENCE, SUBSMISSIONS AND HEARING
[17] Ibid, T1/3.
Evidence
On 6 January 2021, the NDIA lodged with the Tribunal a set of documents pursuant to s 37 of the AAT Act (‘T-Documents’). Following consultation with Ms Butic, the NDIA lodged a joint hearing tender bundle on 22 July 2024 (‘HTB’).
At the request of the Tribunal, the NDIA compiled a set of radiological reports and lodged them with the Tribunal on 23 August 2024 (‘Radiology HTB’). Further, a more recent MRI report dated 20 December 2021 was lodged with the Tribunal on 25 September 2024 and accepted into evidence.
It was identified at the resumed hearing on 26 September 2024 that there was a gap in the evidence in relation to other general service systems which may be able to provide the type of intervention and supports that Mr Butic was seeking. The Tribunal gave leave to the NDIA to obtain and lodge additional evidence to fill this information gap and it did so on 7 October 2024, in a set of documents containing:
(a)a summary of the Home and Community Care Program for Younger People (HACC PYP);
(b)a webpage from the Victorian Government Department of Health (‘Department’) about the HACC PYP;
(c)a publication for assessment providers in respect of the HACC PYP; and
(d)the Interim Guidelines November 2023 issued by the Department.
The Tribunal will refer to the above set of documents as the Home and Community Care Hearing Tender Bundle (‘HACC HTB’). The HACC HTB has been accepted into evidence in this proceeding in its entirety.
Submissions
Ms Blok, on behalf of the NDIA, prepared the NDIA’s Statement of Facts, Issues and Contentions dated 16 July 2024 (‘NDIA’s SFIC’). The NDIA’s SFIC was lodged with the Tribunal on 22 July 2024.
On 29 November 2024, the NDIA lodged further submissions about the effect of legislative amendments made to the NDIS Act upon the enactment of National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (‘Amending Act’) which commenced on 3 October 2024 (‘NDIA’s Further Submissions’). The general thrust of those submissions is that the 2024 legislative amendments do not impact upon the decision to be made in this application, because Mr Butic made his access request prior to 3 October 2024. In these submissions, the NDIA referred to Item 126 of Schedule 1 to the Amending Act. This Item provides that the amendments to section 24 and 25 apply to access requests that are made to the NDIA by a prospective participant on or after 3 October 2024. The Tribunal agrees with the NDIA’s contentions and there was contest about this issue.
Hearing
The hearing of this matter took place over three days on 22 and 23 August 2024 and on 26 September 2024. The following four witnesses were called to give evidence at the hearing:
(a)Mr Butic;
(b)Mr Butic’s treating specialist, Dr Symon McCallum (Pain Physician & Specialist Anaesthetist at Precision Brain, Spine & Pain Centre (‘Precision’);
(c)Independent medical expert, Associate Professor (‘A/Prof’) Gordon Davies (Psychiatrist); and
(d)Independent medical expert, Ms Sanja Zeman (Occupational Therapist).
MEDICAL HISTORY
Motor vehicle accident in March 2014
On 19 March 2014, Mr Butic was involved in a high-speed motor vehicle accident. He was taken to the Bendigo Emergency Department by ambulance.[18] Mr Butic’s neurological and upper and lower limbs were assessed as “normal,” but he was noted as having midline tenderness at C4, 5 and T3-6 of his spine, over his right shin and that he had a tender manubrium.[19] [20] Otherwise, no significant abnormalities were detected following X-rays and CT scans.
[18] HTB, TB8/93.
[19] Ibid, TB6/87.
[20] The manubrium is a thick, large trapezoidal shaped bone that lies above the body of the sternum at the vertebral level T3-T4.
The Acting Chief Medical Officer, Dr Grant Rogers, stated in a report dated 8 September 2015 that the CT scans of Mr Butic had concluded that “no significant injury had been demonstrated.” Mr Butic was discharged from the ED and told to return if he experienced any pain. He was told to follow up with his General Practitioner in a week’s time for further pathology testing.[21]
[21] HTB, TB6/87 & 88.
Medical report by Dr Dan Bates, Sports Medicine Registrar
On 19 March 2015, 14 May 2015 and 9 July 2015, Mr Butic attended the Metro Pain Group in relation to “injuries sustained in a transport accident.” Dr Dan Bates (Sports Medicine Registrar, Metro Pain Group) in his letter to Mr Butic’s lawyers at the time, Slater & Gordon, dated 15 December 2015, summarised the symptoms and treatment as reported to him by Mr Butic at the time:[22]
He currently locates his pain to be fairly generalised across his neck, chest, stomach, right leg and thoracolumbar region. He states that the majority of his pain is in the thoracolumbar junction. The pain radiates down his right lumbar spine to his right buttock and to his right posterior thigh. He describes a constant sharp pain, 10/10 at its worst and 9/10 on average. It regularly wakes him at night, it is not worse in the morning and is not stiff, and he has no mechanical symptoms. He gets intermittent numbness to his entire right leg and he states that he needs to place water on his leg to get the sensation to come back. This comes on when he sits for prolonged periods such as greater than an hour or when he goes to sleep. He has had associated cramping in the area. He also complains of associated muscle tightness to the lower back and buttock region. He states that this is only aggravated with standing and walking. He has had no red flags and his managements have included self massage, use of a hot shower and physiotherapy for eight weeks.
[22] Ibid, TB7/89.
Dr Bates states that physiotherapy could not commence because they were awaiting a reply from TAC in respect of the funding for this service. Dr Bates that Mr Butic has been consistent with his medications but unfortunately had failed to improve. Dr Bates stated that as of 9 July 2015, Mr Butic had ongoing thoracolumbar pain consistent with his original presentation. Dr Bates diagnosed Mr Butic as having “somatic back pain likely arising from T11/12 with the facets above and below being differentials.” Dr Bates stated that Mr Butic had “a degree of peripheral and central sensitisation.”[23] Dr Bates stated that Mr Butic was prescribed with Endep and Mobic and was referred for physiotherapy.[24]
[23] Ibid, TB7/90.
[24] Ibid.
Dr Bates referred to the CT scan showing the presence of a L4/5 disc protrusion but that this was inconsistent with the clinical presentation and location of pain. Dr Bates considered this to be an “incidental finding.”
Dr Bates recommended that Mr Butic proceed with some physiotherapy as originally planned and if it failed, to proceed with “medial branch blocks” to exclude his facet joints as a source of his pain. Dr Bates recommended that if the initial and control blocks do not result in significant relief, Mr Butic should proceed with radiofrequency ablation of his medial branches in the region.[25]
[25] Ibid.
Dr Bates opined that it would be six to 12 months “plus” before Mr Butic “completely settles.” He stated that Mr Butic had reported regular pain at the 10 out of 10 level and pain on average at the 9 out of 10 level. For this reason, Dr Bates considered that Mr Butic had little, if any, capacity for work. Dr Bates stated that he saw no reason why Mr Butic would not return to full work capacity with appropriate diagnosis and management being implemented. However, he said that because it had not been implemented by the “funding body”, Mr Butic’s work capacity was “unclear.”[26]
[26] Ibid, TB7/91.
Medical report by Dr Nathan Serry, Consultant Psychiatrist
On 3 March 2016, Dr Nathan Serry (Consultant Psychiatrist, Hawthorn Road Consulting Suites) examined Mr Butic at the request of Slater & Gordon. Dr Serry stated that Mr Butic has reported that ever since the car accident, he had struggled with pain in his neck and low back. He stated that Mr Butic also occasionally had chest pain but this was “much less troublesome.” Dr Serry stated Mr Butic had undertaken physiotherapy, had taken painkillers as required, and had attended the Metro Pain Clinic.

Dr Serry stated that Mr Butic had reported being “very restricted with all physical activities” and that he relied upon his friends within the home. He stated that Mr Butic reported he is not as active and outgoing as he used to be, that he will see friends, but his pursuits tended to be sedate. Dr Serry noted that Mr Butic’s English studies had continued (as of the date of this letter).[27] He also stated that Mr Butic regularly went to church.[28]
[27] Ibid, TB8/93.
[28] Ibid, TB8/94.
Dr Serry stated that Mr Butic had reported that he felt low in mood most of the time and low in energy and he attributed this to his pain and poor sleep. He stated that Mr Butic suggested that his concentration and memory were reasonably well-maintained, although at times he was distracted by the pain. He stated that Mr Butic had told him he dreamt of the accident up to two times per week, although he was “unable to establish a clear history of flashbacks.” Mr Butic advised he had never driven, but as a passenger in a car, he was “somewhat nervous and on occasion will close his eyes.” Mr Butic informed Dr Serry that he did not have a history of any pre-existing mental health conditions.[29] Dr Serry noted that Mr Butic did not have any formal mental health treatment after the accident until their consultation in 2016.[30]
[29] Ibid, TB8/95.
[30] Ibid.
Dr Serry diagnosed Mr Butic with an “adjustment disorder with anxious and depressed mood and with features of traumatism” arising from the car accident.[31] Dr Serry stated that Mr Butic denied any formal past psychiatric history. Mr Butic told Dr Serry he was exposed to a considerable amount of trauma growing up. Dr Serry stated in his report that Mr Butic presented as someone who has probably carried with him “a degree of premorbid vulnerability” which was compounded by the car accident. Dr Serry suspected it was compounded further by the unrelated marital and custody issues in respect of Mr Butic’s children. Dr Serry described Mr Butic’s condition as “substantially stable.”[32] He described Mr Butic’s prognosis as being “somewhat guarded” and recommended that Mr Butic be referred for “appropriate mental health intervention” from a Dinka-speaking psychologist if available, or alternatively, a psychologist with an interpreter.[33]
[31] Ibid, TB8/97.
[32] Ibid, TB8/97.
[33] Ibid, TB8/98.
Medical report issued by Dr Paul Kierce, Orthopaedic Medico-Legal Consultant
On 31 May 2016, Dr Paul Kierce (Orthopaedic Medico-Legal Consultant) examined Mr Butic. Mr Kierce referred to Mr Butic having “aggravated pre-existing lumbar spondylosis” and that he suffered a soft tissue injury to his cervical spine on 19 March 2014.[34] Dr Kierce opined that Mr Butic’s soft tissue injury had resolved but he still had problems with his “lower back injury.” Dr Kierce stated that Mr Butic reported he had not had troubles with his back or neck prior to the car accident. Dr Kierce noted that Mr Butic has had two months of physiotherapy at the Pakenham Group but Mr Butic reported “limited improvement.”[35]
[34] Ibid, TB9/103.
[35] Ibid, TB9/105.
Dr Kierce stated that Mr Butic:
(a)complained of some pain at the base of his neck, in the right lumbar region radiating down his right leg to his right calf with pain, and in the left buttock;
(b)reported that his neck pain is “staying about the same” but the pain in his low back and right leg were getting worse;
(c)his low back pain is constant and aggravated by sitting, standing, and walking for about 15 minutes;
(d)bending was very difficult and that his right leg is aggravated with standing and prolonged sitting;
(e)was suffering from constipation but he had normal control of his bladder;
(f)his back pain interrupted his sleep and he would get up to place a hot towel on it;[36]
(g)he attended a Chinese massage four times a month (self-funded) which had given him temporary relief;
(h)he was due to commence physiotherapy again after changing his doctor after he moved house;[37] and
(i)he was doing exercises as advised by a physiotherapist.[38]
[36] Ibid, TB9/105
[37] Ibid, TB9/106.
[38] Ibid, TB9/107.
Dr Kierce stated in this report he had called Mr Butic’s General Practitioner who had advised Mr Butic was taking Lyrica 75mg twice a day and Tramadol 50mg a day.[39] Dr Kierce stated that Mr Butic reported he is able to travel on public transport and is independent of showering, dressing, toileting and feeding. He stated that Mr Butic had reported having “bad dreams” about the accident.[40]
[39] Ibid.
[40] Ibid.
Dr Kierce stated that Mr Butic “demonstrated abnormal pain behaviour.” He observed that Mr Butic was able to walk without a limp and was readily able to walk on his toes and heels. Dr Kierce observed a left-sided thoracolumbar scoliosis with a right-side cervical scoliosis. He observed Mr Butic tending to stand on his right leg and not put weight through his left leg.[41]
[41] Ibid, TB9/108.
Dr Kierce concluded upon examination of Mr Butic, that he had aggravated pre-existing lumbar spinal stenosis at L4/5 in the motor vehicle accident and has no evidence of radiculopathy or loss of structural integrity.[42] He stated that it is likely his involvement in the accident would continue to give him ongoing low back pain and it may have accelerated degenerative changes already present. Dr Kierce stated he was unable to identify any unrelated condition. Dr Kierce stated that Mr Butic’s condition was stable.
[42] Ibid, TB9/110.
Dr Kierce concluded that Mr Butic had a “definite organic aggravation of pre-existing lumbar spondylosis” and he is also “suffering from a chronic pain syndrome” and “would benefit from psychological and psychiatric assistance.” He stated it would be beneficial for Mr Butic to be put onto a self-managed exercise programme involving walking and/or swimming which would need significant supervision over a period of about three months. Dr Kierce opines as follows in his report:[43]
The evidence regarding his abnormal pain behaviour includes the fact that the axial compression of his spine causes low back pain and the fact that he has global numbness of his right arm and right leg. He has significant psychosocial problems was well as significant general health problems.
[43] Ibid, TB9/111.
Dr Kierce opined that from a physical viewpoint, Mr Butic would never be fit for manual work which involved prolonged or frequent bending, the lifting of weights greater than 15 kilograms or the use of heavy jarring implements or driving of machinery which gives rise to vibrations. He opined that Mr Butic was not fit for any employment as of the date of his report and indicated he would need re-training once his psychological status has improved. He opined further the Mr Butic did not need operative treatment and that further physical therapy or injection therapy was not likely to be successful.[44]
[44] Ibid, TB9/111.
Medical report by A/Prof Paul Desmond, Gastroenterologist
On 13 December 2016, A/Prof Paul Desmond, Gastroenterologist issued a report after examining Mr Butic as the request of his lawyers (‘A/Prof Desmond’s Report’). A/Prof Desmond opined that X-rays taken of Mr Butic’s colon demonstrated faecal loading of his colon which was consistent with significant constipation. A/Prof Desmond believes that Mr Butic’s constipation related to the analgesics he takes for his pain.[45]
[45] Ibid, TB10/115.
Medical report by Dr Ruwangi Malvenna, Consultant Psychiatrist
Dr Ruwangi Malvenna, Consultant Psychiatrist, issued a letter stating she had seen Mr Butic on two occasions for his mental health, specifically, on 21 February 2018 and 13 June 2018. Dr Malvenna diagnosed Mr Butic with “major depression of moderate severity” with symptoms of PTSD and anxiety.[46] She states that pain seemed to be the main factor in maintaining Mr Butic’s depressive illness. Dr Malvenna stated when Mr Butic was referred to her, he had started on an antidepressant, desvenlafaxine, by his general practitioner. Dr Malvenna stated she had recommended that he swap the antidepressant to Duloxetine and if it was not effective, to swap it to sertraline.[47]
[46] Ibid, TB11/116.
[47] Ibid, TB11/117.
Dr Malvenna recommended that Mr Butic would benefit from referral to a psychologist under a Mental Health Care Plan, and also recommended Mr Butic be referred to a pain clinic. Dr Malvenna opined that given Mr Butic had suffered from chronic depression since 2014, “it is very likely that he will suffer from degree of ongoing residual depression despite treatment in the future”, and “exacerbations of depression” which are likely to last for several months.[48] Dr Malvenna also opined that Mr Butic’s symptoms of PTSD were likely to exacerbate if he faced further traumatic experiences or stressful situations that would possibly reactivate his memories of trauma. She stated that Mr Butic choice of treatment of his condition was limited to some extent, by the fact that most antidepressants could cause problematic constipation to varying degrees.[49]
[48] Ibid.
[49] Ibid.
Medical report by Professor Teddy, Neurosurgeon
On 16 January 2017, Professor Peter Teddy (Neurosurgeon, Precision Brain, Spine & Pain Centre (‘Precision’)) wrote to Dr Oludare. He stated in his letter that Mr Butic’s “complaint” had been one of severe mid/upper lumbar and lower thoracic back pain, present since a motor vehicle accident in 2014. He stated that Mr Butic had told him he had been well before the car accident. He stated that Mr Butic had informed him that he was a passenger in a car which was travelling at 120km per hour when another car did an illegal U-turn in front of it and that evening, he had felt severe back pain.[50]
[50] T-Documents, T4N/58.
Professor Teddy stated that there had been no significant radiation to the lower limbs and that Mr Butic’s pain was worse on standing. He stated that Mr Butic reported “some vague numbness in the lower limbs on standing and some intermittency of micturition with really no other symptoms” and that he is worried about his “GI tract.”[51] Upon examination, Professor Teddy stated that Mr Butic had exhibited virtually no back movements at all and he had reported pain being diffusely across both sides of his midline from about L4 to about T6. He stated that Mr Butic would bend only to touch his upper thighs and there was no tilt or rotation demonstrated.[52]
[51] Ibid.
[52] Ibid.
Professor Teddy stated:[53]
However, as far as I could tell, power, sensation and reflexes in all four limbs were normal although the plantar responses were equivocal.
[53] Ibid, T4N/59.
Professor Teddy organised further radiological scanning of Mr Butic’s spine which he said should demonstrate “any generators in the spine.”[54] He saw Mr Butic again on 20 February 2017. Professor Teddy stated that Mr Butic had reported there had been no substantial change in his condition, despite having had physiotherapy. Professor Teddy noted there were “no significant abnormalities noted on Mr Butic’s MRI or on his CT/SPECT scans.” He stated that he would refer Mr Butic to his colleague, Dr Symon McCallum, Pain Physician & Specialist Anaesthetist at Precision to see if he could help. Professor Teddy stated that “maybe encouragement for self-help would be a better way of proceeding than reliance upon medication and medical interventions.”[55]
[54] Ibid.
[55] Ibid, T4M/57.
Medial reports issued by Precision Brain, Spine & Pain Centre
On 20 March 2017, Dr McCallum wrote to Dr Oludare. Dr McCallum stated in this letter that Mr Butic was experiencing neck pain down to his thoracic spine to his lumbosacral area and that it felt like a burning sensation. He stated that Mr Butic had reported the constant pain was made worse with sitting or standing and that is varied in severity and location but stayed central most of the time. Dr McCallum stated that Mr Butic had reported that he tried to walk frequently, four times per day, but he could not run and that his sitting and standing tolerance varied. He stated Mr Butic did not have any permanent loss in sensation or focal weakness. He stated that Mr Butic suffered from constipation but had no problems with his bowel or bladder symptoms. Dr McCallum stated that Mr Butic did not like taking medications and he felt he was taking too many; Mr Butic was taking Dulcolax but no other medications. He stated Mr Butic had only undertaken physiotherapy, possibly, twice.
Dr McCallum stated that Mr Butic was taking a break from his studies and that he found it difficult to study in class and to concentrate. He stated that Mr Butic reported he was not working and he did feel that he could work, that he felt tired frequently, was depressed, anxious about his situation, and experienced panic attacks. Dr McCallum stated that Mr Butic’s sleep was poor, he is “independent of self-care,” and that he does his chores slowly.[56] He referred to Mr Butic having nightmares about the motor vehicle accident.
[56] Ibid, T4L/54 & 55.
Dr McCallum referred to an MRI showing mild to moderate spinal canal stenosis at L4/5 and a moderate narrowing at the L5 subarticular recesses but with no nerve root compression. He stated that an MRI of Mr Butic’s thoracic spine was normal. Upon physical examination of Mr Butic, Dr McCallum made the following observations:[57]
On examination, he has got normal reflexes, power and sensation in his lower limbs. His cervical spine has a normal range of movement. His shoulders have a good range of internal and external rotation. Again, he shows minimal flexion and extension. Rotation sounds like it is slightly more according to Professor Teddy and did not seem to increase the pain greatly. He is tender to palpitation down the paravertebral muscles from his upper neck to his lumbosacral junction. His hips have a decreased range of movement. This might be due to the stiffness and fair bit of pain. He is clinically negative for sacroiliac joint pain.
[57] Ibid.
Dr McCallum concluded that Mr Butic had PTSD, was “depressed with anxiety” and is “kinesophobic” (being a fear of pain due to movement). He stated that he thinks Mr Butic’s pain is “muscular in origin.”[58] He considered that Mr Butic needed to be assessed for his suitability for multidisciplinary pain rehabilitation program and would benefit from regular hydrotherapy. He recommended that Mr Butic have blood tests and that he was potentially a candidate for Duloxetine and Norflex.[59]
[58] Ibid.
[59] Ibid, T4L/55.
On 15 May 2017, Dr McCallum wrote to Dr Oludare about his consultation that day with Mr Butic. Dr McCallum noted that as of 22 March 2017, Mr Butic’s testosterone was at a low level, being 3.5. He stated that, to his knowledge, Mr Butic was not on any opioids and that his “other bloods were normal.”[60] Dr McCallum referred to Dr Oludare having given medication to Mr Butic but Mr Butic had reported not to be taking it and that Mr Butic could not remember the name of this medication. Dr McCallum stated that Mr Butic had reported that he still had low back pain, was struggling with his sleep and mood and struggling to find accommodation. He stated that Mr Butic had reported he was not seeing a psychiatrist or psychologist. Dr McCallum stated that he had spoken to Mr Butic about a psychosocial approach to help him with his back pain. He referred to have asked Mr Butic to be re-tested in respect of his testosterone levels and if persistently low, to be referred to an endocrinologist as this might be responsible for several of Mr Butic’s symptoms.[61] Dr McCallum recommended that Mr Butic be referred to local hydrotherapy and that he needed to see a psychiatrist. He noted that Mr Butic was awaiting approval for his pain rehabilitation program.[62]
[60] Ibid, T4K/53.
[61] Ibid.
[62] Ibid.
On 26 July 2017, Dr McCallum wrote to Dr Oludare to advise that Mr Butic’s testosterone levels were still low at 4.3. He stated that Mr Butic was taking some medication but he was unsure what it was. Dr McCallum stated that Mr Butic was walking daily but the amount varied and he was stretching his legs occasionally. He stated that it sounded like “he is not doing much.”[63] He stated Mr Butic was struggling with his accommodation. He recommended that Mr Butic be referred to an endocrinologist regarding his low testosterone level and he would benefit from regular hydrotherapy for a prolonged period of time. He stated that Mr Butic was going to be assessed for a pain rehabilitation program.[64]
[63] Ibid, T4Q/62.
[64] Ibid.
On 21 July 2017, Dr McCallum, Dr Lizbeth Wilson, Clinical Psychologist, and Mr Peter Parks, Physiotherapist (described in this letter, collectively, as the “Werribee Treatment Team”), wrote to Dr Oludare to confirm that Mr Butic has been referred to the “Precision Ascend Pain Management Program” and that he had attended for an assessment on 3 July 2017. These practitioners jointly stated in their letter that during the assessment, Mr Butic appeared to be “depressed with anxiety and trauma related symptoms” and in their opinion, he was “not ready to accept a non-interventionist approach to managing his back pain.” These practitioners jointly concluded that Mr Butic had a “poor prognosis for any benefit in an active self-management program” and that the program was “not a viable option for him at that time.” These practitioners jointly recommended that “individual psychological therapy” was a more suitable treatment for Mr Butic, as it would allow him to gain support for his depression.[65]
[65] Ibid, T4I/50.
In a further letter by Dr McCallum to Dr Oludare dated 20 November 2017, he stated that there had been no change since the last time he had seen Mr Butic. Specifically, he stated that Mr Butic’s back pain was “still severe” and there was a “slight decrease in his leg pain.”[66] Dr Oludare stated that Mr Butic had reported walking twice a day for 10 to 30 minutes and he was not doing any hydrotherapy. Dr Oludare stated that Mr Butic was waiting to see an endocrinologist. He stated that Mr Butic was on Pristiq 50mg prn and that he was worried about his stomach problems. It also sounded to Mr Oludare that Mr Butic was occasionally alternating with Duloxetine. Dr Oludare recommended that Mr Butic be referred for psychological care and to a local psychiatrist, that he increased the frequency of his walking activities and that he was to take the Pristiq 50mg daily and to cease taking any Duloxetine.[67]
[66] Ibid, T4H/49.
[67] Ibid.
In a letter by Dr McCallum to Dr Oludare dated 6 February 2018, he stated that Mr Butic was feeling the same and was struggling with his low back pain. Dr McCallum stated that Mr Butic had told him that he had missed a psychology appointment and was worried about the medications and its side effects. Dr McCallum stated that Mr Butic was unable to tell him what medication he was taking and had forgotten the names. He stated Mr Butic had reported walking around the park and needing to sit after 30 minutes, his pain was severe, that he sometimes went to the shopping centre and that he could read for a short time. Dr McCallum stated he had told Mr Butic to endeavour to walk twice a day. He noted that Mr Butic was going to see a psychologist soon and that he should be referred to a local psychiatrist, which Dr McCallum considered would be most useful for Mr Butic. Dr McCallum stated that Mr Butic would benefit from a gentle and gradual increase in his level of activity and he referred him to a local hydrotherapy pool.[68]
[68] Ibid, T4J/51.
In a letter by Ms Georgina Speak, Clinical Psychologist, to Dr Oludare dated 6 March 2018, she referred to having undertaken a psychological assessment of Mr Butic. She stated that Mr Butic presented with a history of lower back and leg pain following a motor vehicle accident in 2014. Ms Speak stated that Mr Butic was assessed for the “ascend pain management program” and “was deemed not suitable.”[69]
[69] Ibid, T4G/47.
Ms Speak stated that Mr Butic had attended three physiotherapy sessions and was awaiting approval from his insurer for more sessions. Ms Speak stated that:
(a)Mr Butic’s father had been killed when Mr Butic was a child;
(b)at the age of 15, Mr Butic started his own business selling cows, which he was proud of. He is disappointed he could not work, as he had hoped to work, in a factory in Australia;
(c)Mr Butic did not feel safe in his country and wanted to come to Australia to have a better life;
(d)Mr Butic continues to speak to his mother who is in South Sudan;
(e)Mr Butic’s wife separated from him in 2013 and their three children live with Mr Butic’s ex-wife; and
(f)Mr Butic attends church every Sunday and his church community is based in Sunshine.

Ms Speak stated that Mr Butic described his mood as “not good” and that while he did not feel happy, he “thanked God” that he was alive. Ms Speak observed that “pain catastrophising” was evident. She stated the Mr Butic worried about getting worse and ending up in a wheelchair, that he felt “stuck” and he wished the accident had not happened. Ms Speak referred to Mr Butic often thinking about the accident and having nightmares. She said he avoided getting into cars and usually took public transport as he felt safer. She stated that Mr Butic had reported he was “jumpy in cars” and felt scared when a car drove near him. Mr Speak stated that Mr Butic had stopped watching the news and television. She stated that “there was no psychiatric or psychological involvement” and that Mr Butic had denied “suicidal ideation.” Ms Speak stated that Mr Butic had a reduced appetite and that he forced himself to eat.[70]
[70] Ibid.
Ms Speak’s psychological assessment of Mr Butic at this time was stated as follows:[71]
Following today’s assessment, Mr Butic presented with symptoms of depression and trauma in the context of his chronic pain. This is on the background of his motor vehicle accident and experiences in South Sudan. He reports his goals for this year include “getting better” and returning back to work. He would like his pain to be “fixed.” Mr Butic may benefit from working with a psychologist to manage the above described symptoms, however I do not believe his is ready to accept a non-interventionalist approach to managing his back pain. He is not motivated to attend psychology currently and I have not organised a follow up appointment. Physiotherapy input is needed and I strongly recommend the insurer fund this promptly.
[71] Ibid.
In a further letter by Ms Speak to Dr Oludare dated 11 July 2018, she stated that Mr Butic had “continued to experience symptoms of depressions and trauma in the context of chronic pain.”[72] Ms Speak stated in this letter that Mr Butic was homeless, and this was causing him considerable distress. She refers to having provided Mr Butic with a letter of support in respect of his application for priority housing. Ms Speak considered that it was then not the right time for Mr Butic to engaged in psychological therapy and that he remained “care focused and would prefer a physical approach to the management of his pain.”[73] Ms Speak recommended that Mr Butic’s “insurer” promptly fund physiotherapy and hydrotherapy for Mr Butic. She also encouraged him to continue with his daily walking and “stretches/exercises along with his psychiatrist appointments.”[74]
[72] Ibid, T4C/41.
[73] Ibid.
[74] Ibid.
In a further letter by Dr McCallum to Dr Oludare dated 16 July 2018, he referred to an MRI from June (which is presumed to be June 2018), showing “L4/5 mild to moderate spinal canal stenosis due to disc bulges and short pedicles.”[75] Dr McCallum reports that Mr Butic felt as though his condition was getting worse and that he walked in a shopping centre every day. He refers to Mr Butic being on medication but that Mr Butic could not recall the medication’s name. Dr McCallum stated that his impression was that Mr Butic may have “pain somatisation disorder.”[76] Dr McCallum informed Mr Butic that he did not think that medications, injections, or operations were likely to help with his pain and that Mr Butic needed to “exercise his way out of this.” Dr McCallum’s recommendations as set out in this letter included that Dr Oludare refer Mr Butic to a local psychiatrist, a local hydrotherapy pool, active physiotherapy, to walk twice a day, every day and to increase the frequency of his walking, and to use an application developed by Precision to help patients with chronic lower back and leg pain.[77]
[75] Ibid, T4B/39.
[76] Ibid, T4B/39.
[77] Ibid.
In a further letter by Dr Oludare to the Department of Human Services dated 16 July 2018, he agreed with Ms Speak’s support for Mr Butic to receive priority housing. Dr Oludare stated that from a psychological perspective, Mr Butic is “currently unable to work and afford a rental property.” Dr Oludare referred to Mr Butic have a long history of complex symptoms of depression and trauma, in the context of chronic pain, which was exacerbated by the 2014 motor vehicle accident. Dr Oludare described Mr Butic has having “considerable psychological and physical restrictions.”[78]
[78] Ibid, T4D/42.
On 24 September 2018, Dr McCallum wrote to Dr Oludare to recommend that Mr Butic see a psychiatrist.[79] He stated in the letter that Mr Butic was awaiting a psychiatry appointment and was that he was still seeing the psychologist. He stated that Mr Butic’s medications were Duloxetine 30 mg and Panadol Osteo. In relation to his mood, Dr McCallum reported that Mr Butic was still very down and felt “stuck.” He stated that Mr Butic reported that he was walking around the park two to three times a day. Dr McCallum advised Mr Butic to walk around the park four times a day.[80]
[79] Ibid, T4S/64.
[80] Ibid.
On 18 December 2018, Mr Butic saw Ms Meena Mittal (Pain Physician & Specialist Anaesthetist) at Precision.[81] The consultation took place after Mr Butic self-referred, as he was seeking a second opinion about the management of his lower back pain. Ms Mittal stated that he was seeing Dr Adrian Del Monaco, a psychologist at Precision.
[81] Ibid, T4E/43 & 44.
Ms Mittal referred to Mr Butic having a “very traumatic background.” She stated his current issue was that of “homelessness.” Ms Mittal stated that Mr Butic suffered from ongoing neck pain, headaches and low back pain following the motor vehicle accident, and that his lower back pain appeared to be “most troublesome.”
Ms Mittal stated that Mr Butic had described his lower back pain as being “in a belt like distribution that is presently constant while sitting, standing, lying down flat or walking.”[82] Ms Mittal stated that this pain appeared to limit his mobilisation.[83] Mr Butic reported to her that the pain had stopped him from doing “anything” and that he was “very preoccupied with his low back pain.” Ms Mittal reported that due to his chronic lower back pain, Mr Butic was unable to concentrate and his memory was poor due. It has negatively affected his mood and resulted in poor sleep.[84]
[82] Ibid, T4E/43.
[83] Ibid.
[84] Ibid.
Ms Mittal noted in this letter Mr Butic’s previous “investigations” and that he “is not a surgical candidate.” She described his pain as “essentially myofascial +/- underlying facet joint pain.” Mr Mittal stated that Mr Butic has had a trial of interventional pain management (and had completed a pain management program), and medications, “without any benefit.” She said he had been recommended to continue with physiotherapy and to maintain levels of activity, as his main form of treatment.[85]
[85] Ibid.
Ms Mittal concluded that she was “unable to offer anything new,” particularly in the realm of medications or interventional pain management. She noted that Mr Butic was in a “very challenging situation” and required “more extensive social support to assist him.”[86]
[86] Ibid, T4E/44.
Dr McCallum saw Mr Butic again on 26 March 2019, as referred to in his letter to Dr Oludare of the same date.[87] He noted that Mr Butic was taking paracetamol and possibly also Duloxetine. He referred to Mr Butic reporting that he was missing his children and that he may take some action to remedy this. Dr McCallum referred to there being no change to Mr Butic’s mood and that Mr Butic had told him that when the depression gets too much, that he felt like he is “falling” and his breathing would become “difficult.”
[87] Ibid, T4F/45 & 46.
Dr McCallum states that Mr Butic was sleeping on his friend’s house on a mattress on the floor. Dr McCallum stated that Mr Butic has reported that he was walking two to three times per day, although his walking ability varied and sometimes, he was “housebound.”[88]
[88] Ibid, T4F/45.
Dr McCallum stated that he was concerned that Mr Butic may have a “conversion disorder” because he “may be having some symptoms that we cannot explain medically.” Dr McCallum stated that it was important that Mr Butic kept walking and continued with physiotherapy. He referred Mr Butic to a local psychiatrist and stated that Mr Butic would benefit from having his own house.[89]
[89] Ibid.
On 7 January 2019, Mr Butic returned to see Dr McCallum. In a letter to Dr Oludare dated 9 March 2019, Dr McCallum noted Ms Mittal’s consultation with Mr Butic and stated that he thinks he agrees with her impression. He noted that Mr Butic was on Panadol Osteo and possibly, Duloxetine. He stated the Mr Butic was walking three to four time per day but struggled to “go further” due to back pain.[90] He stated Mr Butic was on a wait list for his housing situation and that he could not see his children. Dr McCallum recommended that Mr Butic be referred to a local psychiatrist, that he avoids opioids and benzodiazepines, that it is essential that he continues with psychology. Dr McCallum added that as he is on Duloxetine, it might be worthwhile “going to 60mg if it has not already been done” and that Mr Butic endeavour to keep as active as possible.[91]
[90] Ibid, T4O/60
[91] Ibid.
On 11 February 2019, Dr McCallum saw Mr Butic and noted the consultation he had with Mr Del Monaco. He stated that Mr Butic was on Duloxetine and Panadol Osteo and that he had received some physiotherapy but this had made the pain worse. He stated that Mr Butic had told him he had seen a psychiatrist twice in the previous year and “had no follow-up arranged.”[92] Mr Butic reported there had been no change to his mood. Dr McCallum stated that Mr Butic clearly needed psychology and he had strongly advised Mr Butic to see Mr Del Monaco that week. He requested that Dr Oludare refer Mr Butic to a local psychiatrist. Dr McCallum referred Mr Butic to “Brisbane Private” for consideration of a physical rehabilitation program.
[92] Ibid.
Supporting medical evidence provided with Mr Butic’s Access Request
Mr Butic’s NDIS access request form signed by him on 1 July 2020 was lodged with the Tribunal (‘Access Form’).
On the Access Form, on 1 July 2020, Mr Butic’s treating General Practitioner, Dr Edward Oludare, completed a table.[93] Dr Oludare lists Mr Butic’s “primary disability” as “lumbar stenosis.” Dr Oludare lists Mr Butic’s “other disabilities” as “depression.” Dr Oludare listed Mr Butic’s “current treatment” as of that date, as comprising “neurosurgical management” and “pain management.”[94] Dr Oludare indicated in this table that there are not any other treatments likely to remedy Mr Butic’s impairment.[95]
[93] Ibid, T3/28 & 29.
[94] Ibid, T3/27.
[95] Ibid.
In terms of functional impacts, Dr Oludare stated in this table that Mr Butic requires assistance to be mobile because of his disability, because he needs grab rails and hand rails installed in his toilet and bathroom (specifically, in the shower) and that a “fully disabled toilet” would be beneficial.[96] Dr Oludare stated that Mr Butic required assistance with communication but he does not specify the type of assistance required.[97] Dr Oludare stated that Mr Butic does not require assistance with social interaction, learning or self-management.[98] Dr Oludare stated that Mr Butic required assistance with self-care in that he needed a carer to help him with cleaning, cooking and gardening and that he might benefit from an “extra room” to accommodate his carer.[99]
[96] Ibid.
[97] Ibid, T3/28.
[98] Ibid T3/28 & 30.
[99] Ibid, T3/29.
On 22 July 2020, Dr Oludare issued a “Support Letter” referring to Mr Butic having been in a motor vehicle accident and having sustained an injury to his lower back for which he was “taken to Bendigo hospital for treatment.” Dr Oludare referred to an MRI which he stated has revealed L3/4, L4/5 canal stenosis with impingement of the right L4 nerve roots in Mr Butic’s lumbar spine. In this letter, Dr Oludare stated that Mr Butic was unable to sit for longer than 30 minutes, unable to stand for longer than 15 minutes and unable to walk for longer than 5 minutes. Dr Oludare stated that Mr Butic’s pain is aggravated by climbing stairs, lifting, and cold weather. Dr Oludare refers to Mr Butic having developed depression secondary to his chronic lower back pain, with suicidal ideation which Dr Oludare stated has required multiple hospital admissions and management by a team of psychiatrists and psychologists. Dr Oludare stated that Mr Butic is on anti-depressants and is still depressed.[100]
[100] Ibid, T4A/38.
About three weeks later on 24 July 2020, Dr Oludare completed an NDIS form entitled “Access Request – Supporting Evidence Form” (‘SEF’). He described Mr Butic’s “primary impairment” as “lumbar canal stenosis L3/4 and L4/5 with impingement of right L4 nerve” which he stated Mr Butic has had for six years.[101] Dr Oludare stated that the impairment is likely to be lifelong.
[101] Ibid.
When prompted on the SEF to provide a brief description of any relevant current and/or past treatment undertaken, Dr Oludare may have misunderstood this question because his answer was that Mr Butic had a “motor vehicle accident with trauma to lumbar spine.”[102]
[102] Ibid, T4/33.
The only other impairment which Dr Oludare stated in the SEF was that Mr Butic has had “depression” for the last four years. Dr Oludare stated he was “uncertain” as to whether his impairment would be lifelong. He described that Mr Butic had “depressed mood”, “anhedonia” and “lack of motivation” and that he had been seen by a psychologist and a psychiatrist.[103]
[103] Ibid.
Dr Oludare certified in the SEF, that the provision of early intervention supports would alleviate the impact and prevent deterioration of Mr Butic’s functional capacity and improve his functional capacity. Dr Oludare stated that they would strengthen the sustainability of available or existing supports. However, when prompted on the form to identify the early intervention supports, Dr Oludare did not do so.
When asked by a question on the SEF as to whether any assessment had been undertaken of Mr Butic’s impairment, Dr Oludare refers to “neurosurgical mgt” and that this assessment had been attached to his form.[104]
[104] Ibid, T4/34.
Dr Oludare stated on the SEF that Mr Butic does not require assistance with the activities of mobility, communication, learning or self-management.[105] Dr Oludare stated that Mr Butic required assistance from other persons with social interaction, namely, he needed psychological support due to depressed mood, anhedonia and “sometimes suicidal ideation.” Dr Oludare described Mr Butic’s affect as being “flat with a severe lack of motivation” and that he needed “ongoing psychotherapy.”[106] Dr Oludare also stated that Mr Butic needed assistance from other persons activities of daily living such as cooking, cleaning, showering, and bathing, because he has “chronic lower back pain syndrome” and was “managed by a neurosurgeon, pain management specialist and physiotherapist with no improvement.”[107]
[105] Ibid, T4/35, 36 & 37.
[106] Ibid, T4/36.
[107] Ibid, T4/37.
Report issued by Mr Sam, Physiotherapist
On 12 August 2020, Mr Rincy Sam (physiotherapist, Back in Motion) wrote to Dr Oludare. Mr Sam stated that Mr Butic has presented with severe low back pain radiating into his right leg which started a few years ago when he had a car accident. He stated that Mr Butic had reported the pain to increase with prolonged sitting, standing, and walking, and that he had some numbness and paraesthesia along his right lower limb. Mr Sam stated that Mr Butic was consistent with exercise due to the stiffness and pain.[108]
[108] Ibid, T6/68
Ms Sam stated that he undertook a physical examination of Mr Sam and diagnosed him as have “lumbar dysfunction.” Mr Sam described the “contributing factors” as being his previous injury, posture and lack of physical activity leading to de-conditioning. Mr Sam recommended heat packs for pain relief and that he had started to focus on gentle lumbar spine mobilisation with ultrasound therapy of the paraspinal muscles to relieve pain. Mr Sam said that the manual therapy had consisted of soft tissue release of gluteal, hamstring, and calf, followed by passive mobilisations of the L4-5 fact joints and sacrum.[109]
[109] Ibid.
Mr Sam stated that Mr Butic had been prescribed gentle lower back and lower limb stretching and strengthening exercises and that he would benefit from a supervised exercise program due to his housing situation.[110]
[110] Ibid.
Medical report by Dr Gregor Schutz
On 13 May 2021, Dr Gregor Schutz, Consultant Psychiatrist, issued a report following an assessment of Mr Butic on 3 May 2021 (‘Dr Schutz’s Report’).[111] Dr Schutz noted that Mr Butic was admitted to The Alfred in about July 2019 upon being assessed as being at an acute risk of suicide. He was commenced on sertraline and his mental state was reported to have subsequently improved, and he was less preoccupied with his pain. Dr Schutz opined that “on balance of probabilities and based on the history provided, mental state examination and collateral source of information,” Mr Butic has psychiatric conditions as per a recognised classification system DSM-5.[112] Dr Schutz stated Mr Butic’s mood could be best described as a “chronic adjustment disorder with depressed mood” arising subsequent to his martial separation and loss of contact with his children in 2013.[113] Dr Schutz opined that Mr Butic had a further aggravation of his mood symptoms, secondary to his experience of chronic pain. Additionally, he believed that Mr Butic’s symptoms are consistent with PTSD. Dr Schutz opined it would be prudent for Mr Butic to continue on antidepressant medication and that given the chronic and entrenched nature of his symptoms that he is unlikely to benefit from psychological therapy nor treatment by a psychiatrist.
[111] HTB, TB12.
[112] Ibid.
[113] Ibid.
Dr Schutz described Mr Butic’s “injuries” to be stable for purpose of impairment assessment. He did not consider Mr Butic to have a neurocognitive disorder. Dr Schutz opined that Mr Butic’s psychiatric conditions in and of themselves would not preclude him from attending a workplace on a consistent and reliable basis. He stated that there may be some physical factors which he considered to be beyond his scope to determine.
Dr Schutz stated that Mr Butic was reasonably independent with his activities of daily living.
Medical report by Mr Clayton Thomas, Consultant in Rehabilitation and Pain Medicine
The Transport Accident Commission (‘TAC’) arranged for Mr Butic to be assessed by Mr Clayton Thomas (Consultant in Rehabilitation and Pain Medicine) at the Melbourne Pain Group on 12 May 2021. Mr Thomas considers that Mr Butic’s problem is not in keeping with organic chronic pain syndrome. Mr Thomas considered Mr Butic’s problems as being “very much nonorganic.” He also proposed a differential diagnosis being “somatic symptom disorder” with the option that there “is actually not much wrong with him at all.”[114]
[114] Ibid, TB13/130.
Mr Thomas noted a significant discrepancy between indirect and direct observations of Mr Butic. Formal observation revealed gross limitation of all movements of his back and neck, but indirect observation revealed far better movement. He stated that Mr Butic showed excellent mobility, and ability to flex his spine and reverse his lumbar lordosis when he was getting off the couch.[115]
[115] Ibid.
Mr Thomas concluded that Mr Butic was suffering from “nonorganic complaints” and that “there is no evidence of any pre-existing or unrelated conditions that contribute to his current predicament.” He considers it is possible that Mr Butic may have a “somatic symptom disorder” and he is not able to determine if Mr Butic’s complaint is genuine or not.[116]
[116] Ibid, TB13/131.
Further medical report issued by Precision Brain, Spine & Pain Centre
Dr McCallum issued a general medical report dated 20 October 2021 and answered some targeted questions which were put to him by the NDIA’s lawyers. When asked to state the diagnosis for Mr Butic, Dr McCallum stated in this report that when he last saw Mr Butic, he was depressed and had a poor level of function. He stated that he was concerned that Mr Butic had a “somatic disorder predominately pain” and possibly “conversion disorder.”

Dr McCallum stated, in this letter, that it is extremely difficult to treat Mr Butic’s conditions and for Mr Butic to get the treatment he needed. He stated that patients usually have a poor response to such treatment and often, do not fully recover. He added that he would not be surprised if Mr Butic had a very poor response to treatment, which is due to the duration of his concerns.
When asked about the likely trajectory of Mr Butic’s condition after any available treatments, Dr McCallum stated, in this letter, that it is almost impossible to predict a patient’s response from psychiatric and psychological treatment for “somatic disorder predominantly pain.” He stated the treatment may take many years and the response is often poor. He stated that it will be vital in Mr Butic’s case that his functional capacity stay the same or decrease with time and will be extremely closely linked to his mood.[117]
[117] Ibid, TB3/10 & 11.
Further MRI scan performed at the end of 2021
Shortly before the resumed hearing, an MRI report of Mr Butic’s spine was lodged with the Tribunal. The MRI scan was performed on 20 December 2021.[118] The Tribunal notes the following observations arising from this report:[119]
The lumbar vertebrae appear normal in height and alignment. No compression fractures could be identified. There is disc degeneration at the L4-5 level. Rest of the discs appear normal in height and signal intensity. The pedicles appear intact. The facet joints appear normal in articulation. No evidence of spondylolysis or spondylolisthesis is noted. The conus ends at the L1 level.
At the L4/5 level there is a broad-based posterior disc herniation with a central annular tear which is causing indentation of the thecal sac and of bilateral descending L5 nerve roots.
No other significant disc herniation, spinal canal stenosis or nerve root impingement detected.
No abnormal pre or paravertebral soft tissue masses could be identified.
[118] This MRI report was first lodged with the Tribunal on 25 September 2024.
[119] Ibid, 1.
The radiologist concluded that there was L4/5 degeneration with a posterior disc herniation causing indentation of bilateral descending L5 nerve roots.[120]
[120] Ibid, 2.
INDEPENDENT ASSESSMENTS IN 2024
With the consent of Mr Butic, the NDIA arranged for him to undergo independent assessments by:
(a)Ms Zeman (face to face assessment on 1 December 2023) resulting in an “Occupational Therapy Activities of Daily Living and Functional Capacity Evaluation Report” dated 8 January 2024 (‘Ms Zeman’s Report’);[121] and
(b)A/Prof Davies (by video conference on 12 June 2024) resulting in an expert report issued by him dated 25 June 2024 (‘A/Prof Davies’ Report’).[122]
[121] HTB, TB4.
[122] Ibid, TB5.
Assessment by Ms Zelman
Ms Zelman holds a Bachelor of Applied Science (Occupational Therapy), which she obtained in 1990, and a Master of Applied Science (Occupational Health & Safety), which she obtained in 1993.[123] Ms Zelman is registered with the Australian Health Practitioner Regulation Agency (‘AHPRA’) and a member of Occupational Therapy Australia.[124]
[123] Ibid, TB4/52.
[124] Ibid, TB4/54.
In Ms Zelman’s Report, she stated that Mr Butic had presented with “chronic pain secondary to a broad-based posterior disc bulge of L4/5, associated with mild central canal stenosis”, which was diagnosed following his involvement in a car accident.[125] Ms Zelman referred to the car accident occurring “on a background of previous episodic back pain and significant emotional issues associated with previous trauma.”[126] Ms Zelman stated that a “non-interventional approach to symptom management” has been recommended for Mr Butic, however, his “entrenched beliefs and emotional decompensation in the form of an adjustment disorder has impacted on his ability to accept this approach to injury management and thereby improve adaptive functioning.”[127]
[125] Ms Zelman’s Report, [15.1] at HTB, TB4/34.
[126] Ibid, [15.2] at HTB, TB4/34.
[127] Ibid, [15.3] at HTB, TB4/34.
Ms Zelman opined that based on this assessment (and noting that limited clinical testing was able to be undertaken) Mr Butic has not previously required care/assistance, and nor does he require future care/assistance, which would meet the access requirements for the NDIS.[128] Ms Zelman stated that Mr Butic’s current limitations to adaptive function are able to be addressed through a non-interventional approach to symptom management, combined with further psychiatric/psychological intervention accessible to Mr Butic through the medical system.[129]
[128] Ibid, [15.4] at HTB, TB4/34.
[129] Ibid, [15.5] at HTB, TB4/34.
Ms Zelman stated that there were no specific physical, sensory, or cognitive impairments impacting on Mr Butic’s function, aside from his “entrenched abnormal pain behaviour.”[130]
[130] Ibid, [15.6.4] at HTB, TB4/34.
Ms Zelman stated her opinion that Mr Butic:
(a)is able to manage his own self-care, currently does so and has no need for any level of assistance in this regard;[131]
(b)does not need any compensatory assistance to facilitate social engagement. Mr Zelman noted that Mr Butic is “self-limiting engagement with his social group, relying on his social support group to come to him, as opposed to him actively engaging with others outside of his home. He has, however, demonstrated the ability to independently access his local community on most days, and therefore has the capacity for social engagement”;[132]
(c)is able to manage his own daily needs and finances and to plan and execute tasks, including the ability to source community-based resources, that is, for lawn maintenance and for travel outside of his community. Ms Zelman noted that Mr Butic is completing all residential maintenance tasks with pacing, and at the time of this assessment his home was noted to be immaculately maintained;[133]
(d)Mr Butic is capable of managing appointments and utilising community transport resources. Ms Zelman notes that Mr Butic attempts to undertake a community-based activity daily to maintain mobility, that is, by attending his local shopping centre;[134]
(e)Mr Butic does have any impairment in respect of decision-making and there is no evidence of risk-taking behaviors or self-neglect;[135]
(f)Mr Butic is able to manage his medications, however, there is “poor compliance” which Ms Zelman stated is unrelated to any disability and is because he chooses not to take the prescribed medications;[136]
(g)Mr Butic perceives he is unable to learn due to his pain. Ms Zelman noted there was no evidence of Mr Butic having a cognitive impairment impacting upon his capacity to learn;[137]
(h)Mr Butic is able to communicate effectively with others, within his own language and with a basic understanding of English. Mr Zelman observed that Mr Butic presented with “very rigid beliefs around his perception of persecution”, which impacted on his engagement;[138] and
(i)Mr Butic is independent with mobility and is able to walk the distance from his home to access local public transport facilities. She stated that he uses buses and trains.[139]
[131] Ibid, [15.11.1] at HTB, TB4/35.
[132] Ibid, [15.11.2] and [15.11.3] at HTB, TB4/36.
[133] Ibid, [15.11.4] and [15.11.9] at HTB, TB4/36 & 37.
[134] Ibid, [15.11.14] at HTB, TB4/37.
[135] Ibid, [15.11.15] at HTB, TB4/37.
[136] Ibid, [15.11.16] at HTB, TB4/37.
[137] Ibid, [15.11.18] at HTB, TB4/37.
[138] Ibid, [15.11.22] at HTB, TB4/38.
[139] Ibid, [15.11.26] and [15.11.27] at HTB, TB4/38.
Ms Zelman stated in her report that Mr Butic had previously been referred to the Precision Ascend Pain Management Program and would likely also be eligible for multiple other pain management programs funded through the healthcare system and available at no cost to Mr Butic. Ms Zelman provided a link to Ms Zelman noted that Mr Butic has rejected advice regarding developing self-improvement strategies which require a non-interventional approach to symptom management.[140]
[140] Ibid, [15.11.12] at HTB, TB4/38.
Assessment by A/Prof Davies
A/Prof Davies issued a report dated 25 June 2024 following his assessment of Mr Butic (‘A/Prof Davies’ Report’). A/Prof Davies is a psychiatrist and works in private practice, as an injury management assessor and a WorkCover and MAA trained assessor of psychiatrist permanent impairment.[141]
[141] HTB, TB5/79.
A/Prof Davies provided a diagnosis of Mr Butic as having “Persistent Somatoform Pain Disorder.”[142] He stated that Mr Butic has “persistent distressing pain which cannot be explained fully by a physiological process or physical disorder and shows no signs of a psychotic disorder.”[143]
[142] Ibid, TB5/70.
[143] Ibid, TB5/71.
In A/Prof Davies’ Report, when expressing his view about whether Mr Butic’s impairment is permanent, he stated as following:[144]
Essentially, Mr Butic is suffering from what is equivalent to a functional neurological disorder and the outcome will depend on both psychological interventions and changes to his external environment as well as the level of ongoing re-enforcement resulting from his manifest disability. Although Mr Butic’s symptoms may be considered permanent on the basis that they have persisted for nearly ten years, they remain changeable depending on life circumstances and are not physically permanent.
In considering Rule 5.4, the key issue is the term availability of appropriate treatment. Long term psychotherapy is likely to be very difficult to obtain within the public health system and Mr Butic does not have the means to fund such private care.
[144] Ibid, TB5/72.
A/Prof referred to there being two significant traumatic events since Mr Butic’s arrival in Australia. They are the break-up of Mr Butic’s marriage and his involvement in the car accident. Based on the history provided by Mr Butic, A/Prof Davies considers that Mr Butic’s current problems arise substantially from “persisting back pain which has followed the motor vehicle accident.” A/Prof Davies stated that the major impediment to Mr Butic undertaking further education and employment is his “inability to sit for significant periods.”[145] He also stated that Mr Butic’s other primary difficulty is “carrying out heavy physical activities.”[146]
[145] Ibid, TB5/71.
[146] Ibid.
A/Prof Davies stated that the “overwhelming results of his medical assessments indicate that Mr Butic’s pain is primarily psychologically rather than physically determined.” He also noted that Mr Butic did not report significant symptoms of a depressive illness, nor did he observe significant signs of such an illness during the interview with Mr Butic.[147] A/Prof opined in his report that while Mr Butic has had long term psychologically determined symptoms, he considers that they “ought to be susceptible to change” and therefore, cannot be considered permanent.[148]
[147] Ibid.
[148] Ibid.
In terms of treatment, A/Prof Davies stated in his report that Mr Butic has had physiotherapy, medication and has attended a pain clinic. He stated that Mr Butic does not appear to have had significant ongoing psychotherapeutic management with a psychiatrist.[149] A/Prof Davies opined that that is a “reasonable prospect of long-term improvement if Mr Butic engages in long-term psychotherapy.” In his report, A/Prof Davies opined that with appropriate treatment, “substantial remission could be expected.”[150] At the hearing, A/Prof Davies changed his opinion in this regard as addressed in detail below in paragraph [149].
[149] Ibid.
[150] Ibid, TB5/72.
In A/Prof Davies’ Report, he stated that Mr Butic can be considered independent in the activities of communication, social interaction, mobility, self-care, and self-management but not independent in respect of learning.[151] In relation to learning, A/Prof Davies stated that Mr Butic is able to learn new “things/skills” and his limitation relates to Mr Butic’s physical capacity for prolonged sitting.[152] A/Prof Davies elaborated that, “Mr Butic has problems with participating in group learning situations because of his pain making him restless and needing to stand and stretch every five to ten minutes.”[153] A/Prof Davies stated that further education may allow Mr Butic to undertake some employment.[154] He stated that Mr Butic may require assistance with transport due to his lack of a licence and restricted capacity for walking.[155]
CONSIDERATION
[151] Ibid.
[152] Ibid, TB5/75.
[153] Ibid.
[154] Ibid.
[155] Ibid, TB5/74.
WHETHER MR BUTIC MEETS THE DISABILTY REQUIREMENTS UNDER S 24
The “disability requirements” under s 24 of the NDIS Act are made up of five mandatory criteria as follows:
24 Disability requirements
(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 support 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).
Section 24(1)(a) - Disability
The first criterion, under s 24(1)(a) of the NDIS Act, requires a person seeking access to the NDIS to have 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.”
In National Disability Insurance Agency v Davis, Mortimer CJ of the Federal Court of Australia made the following judicial observation (emphasis added):[156]
What the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.
[156] National Disability Insurance Agency v Davis [2022] FCA 1002, [69].
The NDIA provides the following policy guidance to decision-makers in its Access Guidelines, which broadly reflects s 24(1)(a) of the NDIS Act (footnotes omitted):[157]
[157] Access Guidelines updated on 26 June 2023, pp. 6-7.
Is your disability caused by an impairment?
When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment.
An impairment is a loss or significant change in at least one of:
•          your body’s functions
•          your body structure
•          how you think and learn.
To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below
•intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information
•cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention
•          neurological – such as how your body functions
•          sensory – such as how you see or hear
•          physical – such as the ability to move parts of your body.
You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and tasks due to your mental health.
It doesn’t matter what caused your impairment, for example if you’ve had it from birth, or acquired it from an injury, accident or health condition.
It also doesn’t matter if you have one impairment, or more than one impairment.
At the commencement of the hearing, Ms Blok informed the Tribunal that it conceded that s 24(1)(a) was met. The Tribunal notes that in the NDIA’s SFIC, it is accepted that Mr Butic has an impairment being his “persistent distressing pain” which causes difficulties sitting for lengthy periods, and carrying heavy objects, and which is attributable to his “persistent somatoform pain disorder.”[158] Mr Blok advised the Tribunal that the NDIA concession was based on the opinions of A/Prof Davies. During closing submissions, Mr Blok advised that the NDIA also relied upon the evidence of Dr McCallum. Mr Blok said the NDIA contends that Mr Butic has “somatic disorder predominantly pain” (which she said was formally called “persistent somatoform pain disorder”).[159]
[158] Transcript, P-102.
[159] Transcript, P-63.
In terms of other impairments, Mr Blok referred to the meaning of “impairment” as set out in the decision of Mulligan v National Disability Insurance Agency (‘Mulligan’),[160] at [51], namely, that impairment is to be understood as a loss or damage to a physical, sensory, or mental function.
[160] (2015) 233 FCR 201, [55]-[56]. Her Honour Justice Mortimer is now the Honourable Chief Justice the Federal Court of Australia.
Ms Blok said that while there is some evidence of damage to Mr Butic’s spine, this damage is not to the extent of being a loss or damage to physical function. The NDIA relies upon the opinion of Dr McCallum that damage to Mr Butic’s spine is not the cause of his pain experienced. Ms Blok highlights that the MRI undertaken in 2020 was put before Dr McCallum at the hearing, and he confirmed that it does not change his opinion in this regard, on the basis that he considered the 2020 MRI to be similar to the 2017 and 2018 MRIs. Mr Blok said that the 2021 MRI report is also “in substantially same terms” as the 2020 MRI report, from which it could be inferred that if it were also put before Mr McCallum (which is it was not, because the 2021 MRI was not tendered into evidence after Dr McCallum had concluded giving evidence at the hearing), his opinion is unlikely to have been different. The NDIA contended that, in light of this evidence, it is not open to the Tribunal to find that Mr Butic has any impairment/s, “other than the pain disorder.”
The Tribunal has outlined, in detail, Mr Butic’s medical history above. The Tribunal considers that the MRIs taken of Mr Butic’s spine objectively establishes that there have been some identifiable physiological changes to areas of his spine consistent with his complaints since 2014 when he had the car accident. Based on the most recent 2021 MRI, the Tribunal finds that Mr Butic a broad-based posterior disc herniation with a central annular tear at the L4/5 level which is causing indentation of the thecal sac and bilateral descending L5 nerve roots. The Tribunal finds there is no nerve root impingement based on the conclusions reached in the 2021 MRI report.
There appeared to be some concern on the part of Mr Thomas, who had assessed Mr Butic, that Mr Butic was not genuine in his reports of pain and resulting impairments. At the hearing of this application, Mr Butic presented to this Tribunal as a straightforward and honest witness. Mr Butic has been consistent over the last decade in his description of his symptomatology and the resulting impairments. The Tribunal finds that Mr Butic has been, and still is, genuine in respect of his reports of experiencing pain in his back and leg, and that he holds a genuine fear that if he moves or exercises too much, or seeks out physiotherapy, that it will increase his pain. Based on the medical evidence detailed above, this fear is unfounded and quite the opposite is likely to be the case, being that Mr Butic would improve substantially from increased movement, exercise, exercise physiology and physiotherapy, if only Mr Butic would engage in it.

A/Prof Davies considers that Mr Butic is independent in respect of the activity of social interaction,[174] as does Ms Zeman as detailed above. At the hearing, Mr Butic gave evidence that he has friends within his community and that he will socialise with them as detailed in paragraph [95] above. For a several years, those friendships were sufficiently strong such that they invited Mr Butic to sleep in their homes during the times he did not have a home of his own and now, his evidence is that he will invite his friend (or friends) to stay with him in the second bedroom of his public housing unit. Mr Butic, by his own evidence, also states that he attends Church on a regular basis. In consideration of these matters, the Tribunal is satisfied that Mr Butic does not have reduced capacity in respect of being able to interact socially with others, should he choose to do so.
[174] HTB, TB5/72.
The Tribunal finds that Mr Butic does not have a substantially reduced functional capacity in the activity of social interaction arising from any one or more of Mr Butic’s Impairments.
Learning
The NDIA, in the Access Guidelines, describe learning as follows:
… how you learn, understand and remember new things, and practise and use new skills.
Dr Oludare was consistently of the view, as stated in the Access Form and the SFE, that Mr Butic does not require assistance with learning, as mentioned above.
Ms Zeman noted in her report that Mr Butic perceives he is unable to learn due to his pain, however, she noted there was no evidence of Mr Butic having a cognitive impairment impacting upon his capacity to learn. The Tribunal notes that an MRI was performed on Mr Butic’s brain on 24 March 2021 and the radiologist concluded there was no intracranial abnormality detected and in particular, no mass lesion or demyelinating process identified.[175]
[175] Radiology HTB, p.35.
A/Prof Davies considers that Mr Butic is able to learn new “things/skills” and his limitation relates to Mr Butic’s physical capacity for prolonged sitting. However, the Tribunal considers it is possible, these days, for persons to undertake learning standing up, even if they require desktop activities given that sit-stand desks are readily available for such activities.
Mr Butic’s gave evidence at the hearing that he has learnt how to cook meals from himself when he moved to Australia. He also gave evidence that when he immigrated to Australia, he attended English classes (in Tasmania) and learnt how to speak English.[176] Based on the Tribunal observations at the hearing of this matter, Mr Butic is not entirely fluent in speaking English but he can carry on a basic conversation in the English language.
[176] Transcript, P-50.
Mr Butic gave evidence that it is hard for him to “sit down and learn” because it “costs me a lot of pain” and “And I wasn’t learning because of the pain and stress.”[177] He also said that when he tries to write, his neck “feels tired and very painful.”[178] The Tribunal considers that it should assess Mr Butic’s capacity to learn primarily based on his cognitive abilities to learn new tasks as there are many ways in which learning can be achieved and seated desktop learning is only one of them.
[177] Ibid, P-51.
[178] Ibid, P-52.
Based on Mr Butic’s evidence of having learnt new things since arriving in Australia, and the opinion of his treating general practitioner that Mr Butic does not have reduced functional capacity in communication, the Tribunal finds that Mr Butic does not have a substantially reduced functional capacity to learn which arises from any one or more of Mr Butic’s Impairments.
Mobility
The NDIA, in the Access Guidelines, describes the activity of “mobility” as follows:
how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
Dr Oludare provided inconsistent indications at approximately the time of Mr Butic’s access request regarding whether Mr Butic has, as a result of his impairments, substantially reduced functional capacity in the activity of mobility. On the Access Form, Dr Oludare initially stated that Mr Butic required assistance to be mobile because of his disability, that he required grab rails (and that handrails were installed in his toilet and bathroom), and that a “disabled toilet’ would be beneficial.[179] Three weeks later Dr Oludare issued a “support letter” which indicated that Mr Butic was unable to stand for more than 30 minutes or to walk for more than 5 minutes. Dr Oludare stated that Mr Butic did not require assistance with the activities of mobility, but he said that Mr Butic needed assistance from other persons with cleaning, showering, and bathing.[180]
[179] T-Documents, T3/27.
[180] Ibid, T4B/38.
Ms Zeman stated in her report that Mr Butic was independent in the activity of mobility and in respect of “all transfers, ambulation and access to date” and that, “He scored 95.14% in this domain, indicating no direct care or assistance requirements.”[181] At the hearing, Ms Zeman gave evidence that she did not think Mr Butic had “substantial limitation on mobility.”[182] She said at the time of her assessment of Mr Butic that he “demonstrated the ability to complete all transfers safely.” Specifically, Mr Zeman said:[183]
[181] Ms Zeman’s Report, [13.2.1] and [13.2.2], at TB4/32.
[182] Transcript, P-124.
[183] Ibid.
He was able to demonstrate adaptation to access low levels, such as a half kneel position, to get down to floor level and on and off floor. And he also discussed with me that he walks to his local shops almost on a daily basis, which is in excess of one kilometre, I believe. So that doesn’t demonstrate a mobility impairment.
A/Prof Davies considered that Mr Butic is independent in the activity of mobility, however, he acknowledged that Mr Butic may require assistance with transport because of his restricted capacity for walking and because he had never driven.[184]
[184] Ibid, TB5/74.
Dr Kierce, who assessed Mr Butic eight years ago, considered that Mr Butic would never be fit for prolonged manual labour which would involve prolonged or frequent bending, the lifting of weights of more than 15 kilograms, or the use of heavy jarring implements or machinery. Dr Schutz who examined Mr Butic about three years ago, considered that Mr Butic was “reasonably independent with his activities of daily living” but did not make any direct statements about Mr Butic capacity to undertake the activity of mobility.
At the hearing, Mr Butic gave evidence that he will sometimes go to a South Sudanese restaurant to have a meal, although he cannot stay there for long.[185] He said the restaurant is in Footscray and he travels there by bus. The Tribunal infers from this that Mr Butic has the ability to undertake the activity of mobility sufficiently so that he can get on and off of a bus. Mr Butic confirmed that he would sometimes also travel on the train and tram.[186] At the hearing, Mr Blok asked Mr Butic if he walked every day. Mr Butic said he will not walk if the weather is very cold. He indicated that when he is walking, if his back gets sore, he will stop and have a rest and start walking again “slower.”[187] Mr Blok put to Mr Butic that Mr Zeman had stated in her report that he was able to walk to “the shops” which was “about 1.3 kilometres.” Mr Butic responded: “As I said before, I try to – to walk. But sometimes it causes a lot of pain, but I try to do it.”[188] Mr Butic was asked by the Tribunal how he will communicate with Centrelink about his disability support pension. Mr Butic gave evidence that if he needs to contact Centrelink he will “walk into the nearest centre.”[189]
[185] Transcript, P-26.
[186] Ibid, P-30.
[187] Ibid.
[188] Ibid, P-47.
[189] Ibid, P-117.
When asked by Ms Blok if he cooked South Sudanese food at his home, he said he tries.[190] Ms Butic gave evidence that he will travel by public transport to the market to buy food.[191] He said he will carry the food home in a shopping bag in his backpack, but that he would buy a single item and “manage to carry it.”[192] He confirmed he might also buy two litres of milk, six oranges and four apples and carry them in his backpack.[193] Mr Butic gave evidence that he could kneel down to get pots and pans out of the cupboard which is under the benchtop. He said it was not easy but he said he kneels down “always when I cook something.” He also confirmed that he knelt down when he was cleaning his floors.[194] He indicated he knelt down to clean his toilet and to put his laundry into the front-loading washing machine.[195] He indicated that he would take 10 or 11 items of his clothing in a laundry basket and hang the laundry outside onto a clothes line to dry.[196] He said he does not have a dryer.[197] When asked whether Mr Butic makes his bed, he said that sometimes he will leave it and sometimes he will kneel down and make it.[198]
[190] Ibid.
[191] Ibid, P-29.
[192] Ibid, P-30 & P-31.
[193] Ibid, P-31.
[194] Ibid, P-35.
[195] Ibid, P-36 and P-37.
[196] Ibid, P-38 & P-39.
[197] Ibid, P-36.
[198] Ibid, P-38.
Mr Zeman stated that Mr Butic had demonstrated the ability to hand wash dishes.[199] Mr Butic confirmed at the hearing that he is able to hand wash dishes and does not have a dishwasher in his unit.[200] She stated that Mr Butic completed his own laundry on a weekly to fortnightly basis, including hanging it out to dry.[201] Ms Zeman stated that Mr Butic made his own bed daily, and at the time of the assessment, she noted the bed to be “immaculately made.” She said he demonstrated that he adopted a half kneel position to tuck in sheets with bedmaking.[202]
[199] Ms Zeman’s report, [12.2.7] at TB4/31.
[200] Transcript, P-116.
[201] Ms Zeman’s report, [12.2.8] at TB4/31.
[202] Ibid, [12.2.9].
Ms Zeman observed, at the assessment, that Mr Butic’s residence was “extremely clean and well maintained.” She said it accommodates a “barrel vacuum cleaner” which Mr Butic demonstrated he was able to access. She recommended that this type of vacuum cleaner be replaced with a “stick vacuum cleaner’ which would allow for “improved posture with vacuuming given his tall stature.”[203] She stated that Mr Butic would generally not mop, but may do so on an ad hoc basis, by getting down on his hands and knees.[204] Mr Butic gave evidence that he will take his rubbish outside, if it is not too heavy, and put it in the “wheelie bin.” He confirmed that he will take the “wheelie bin” to the curb “on rubbish days.”[205]
[203] Ibid, [12.2.10]
[204] Ibid, [12.2.11].
[205] Transcript, P-116.
Mr Butic gave evidence that he is able to dress and undress himself. He answered: “Yes. I am able to do that. I just sit down to dress myself.”[206]
[206] Transcript, P-118.
Mr Butic’s evidence at the hearing was consistent with Ms Zeman’s observations. Mr Butic was clear that he was seeking assistance with mowing the lawn and heavier household tasks. The Tribunal accepts that Mr Butic has some limitations in respect of how many groceries or items of clothing (when he is doing the laundry) that he can carry at one time or that he needs to modify some tasks or pace himself to manage his back pain.
Of significance, the Tribunal notes Mr Butic’s evidence at the hearing that he has some reduction in his capacity to undertake the activity of mobility and that there are some movements he cannot do either at all or without modifying the way he does them, or by pacing himself. He referred, specifically, to mowing his lawn or heavy cleaning such as mopping his floors. However, Mr Butic also gave evidence that he could travel to buy food for his meals, bring the food back to his home, and cook his own meals. He gave evidence at the hearing that he could do his own laundry and hang the items of clothing out on the line. Further, Mr Butic gave evidence that he can keel down when making his bed.
The Tribunal considers that it requires a person to undertake a substantial degree of mobility to achieve those tasks.
The Tribunal is satisfied that Mr Butic capacity for mobility is reduced; however, the Tribunal is not satisfied, after hearing from Mr Butic, that he has a substantial reduction in functional capacity to undertake this activity. He is able to walk a reasonable lengthy distance unaided by a person or assistive technology and to mobilise as needed to complete the various household and self-care tasks referred to by Mr Butic himself, as outlined above.
The Tribunal accepts and finds that Mr Butic has a reduced functional capacity in the activity of mobility. He capacity to walk long distances or to undertake heavy tasks or lift heavy items is limited. However, the Tribunal finds that the level of reduction in Mr Butic’s capacity to undertake activities of mobility does reach the required threshold of a substantially reduced functional capacity to undertake the activity of mobility.
Self-care
The NDIA, in the Access Guidelines, describes the activity of “self-care” as follows:
personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
The Tribunal has already considered some of the tasks referred to above when assessing whether Mr Butic has a substantially reduced functional capacity in the activity of mobility. The evidence of Ms Zeman is critical to the Tribunal’s assessment of whether Mr Butic can undertake these tasks (or cannot or has difficulty doing so) and as outlined above, the Tribunal has closely considered Mr Butic’s own evidence as to his functional capacity when undertaking the activity of self-care.
The NDIA highlights the opinion given by Ms Zeman in her report that Mr Butic:[207]
[207] Ms Zeman’s Report, [14.2.3] at TB4/33.
…believes he requires assistance with domestic cleaning, yard maintenance i.e., lawn mowing, and shopping, however he is currently continuing to effectively undertake domestic maintenance tasks with pacing; is managing household shopping with pacing, with his limitations relating to the fact that he is not licensed to drive and thus relies on public transport; and he has never undertaken any lawn maintenance previously, however, has been well able to establish commercial assistance independently.
In Ms Zeman’s Report she stated that Mr Butic demonstrated the capacity to complete most activities of daily living, with his “abnormal pain behaviours significantly impacting on his participation in these tasks.”[208] Ms Zeman states in her report that Mr Butic “has maintained independence with personal care tasks.” She stated that he showered on most days though may skip days occasionally, if his mood is low.[209] Ms Zeman observed Mr Butic to put on upper and lower body garments independently whilst seated.[210]
[208] Ibid.
[209] Ibid, [12.2.3] at TB4/31.
[210] Ibid, [12.2.4].
The Tribunal must assess the whole range of tasks which comprises self-care when deciding whether he has a substantially reduced functional capacity arising from his impairments. The Tribunal notes that by Mr Butic’s own evidence that he can undertake virtually all the activities of self-care. He can brush his teeth. He can regularly shave. He can shower every day or couple of days. He can eat his food without requiring any assistance. He can go to the toilet, albeit with some difficultly; however, this difficulty does not prevent him from going to the toilet and may be addressed by the installation of handrails.
The Tribunal acknowledges that Mr Butic experiences pain and considers that he is unable to undertake some tasks of self-care. However, Mr Butic complete most of them effectively and for this reason, on balance, the Tribunal finds that he does not reach the required threshold of having a substantially reduced functional capacity to undertake the activities of “self-care” within the meaning of s 24(1)(c) of the NDIS Act.
Self-management
The NDIA, in the Access Guidelines, describes the activity of “self-management” as follows:
how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
The Tribunal does not agree that self-management is confined to the psychological capacity to undertake tasks of self-management as suggested in the Access Guidelines. This would appear to be a limitation which is not aligned with the wording in s 24(1)(c). Instead, the Tribunal considers that the activities of “self-management” includes certain physical tasks to ensure that he is able to run his household, fill his fridge, be able to prepare his meals or order pre-prepared meals, manage his personal finances, or to resolve day to day issues or problems that might arise. It also includes a person being sufficiently organised so as to be able to attend various appointments required for daily living.
Mr Butic gave evidence at the hearing that he manages his own money.[211] His financial and administrative responsibilities are minimal as he is not working or studying, and relies upon a disability support pension (‘DSP’) as his sole source of income.[212] Mr Butic confirmed that his rent for his public housing unit is deducted from his DSP so he is not required to attend to the administration of such payments.[213]
[211] Transcript, P-47.
[212] Ibid and P-49.
[213] Ibid, P-48.
Mr Butic gave evidence that he is able to manage his own medication. He is able to place his rubbish into the “wheelie bin” if it is not too heavy, and to take it out to the curb for collection.
Mr Butic does not use internet banking.[214] Rather, he will visit the bank to withdraw money once a fortnight.[215] The Tribunal considers that this is attributable to Mr Butic having English as a second language and also his low levels of literacy and education, rather than being as a result of Mr Butic’s Impairments. He is able to independently attend to all administrative and financial matters as required, which includes visiting the bank to withdraw money[216] and to pay bills as required, or to visit the supermarket or markets when he needs to buy food, clothes, and grocery items (such as toilet paper and cleaning products).[217]
[214] Ibid.
[215] Ibid, P-48 & P-50.
[216] Ibid.
[217] Ibid, P-49.
Mr Zeman stated that Mr Butic, “has learnt to cook simple, stovetop meals, and at the time of this assessment demonstrated the ability to engage in meal preparation tasks. He advised that he cooks bulk meals twice weekly, having food to reheat over several days. On days in between he purchases take-out meals or eats bread with milk.”[218]
[218] Ms Zeman’s Report, [12.2.6] at TB4/30.
On balance, the Tribunal finds that Mr Butic has not reached the required threshold of having a substantially reduced functional capacity to undertake the activity of “self-management” as he can effectively undertake the tasks of running of his household, such attending to his meals and the laundering of his clothes and bedding and managing his finances and medications.
Based on the findings above, the Tribunal concludes that Mr Butic does not meet the criterion under s 24(1)(c) of the NDIS Act.
It is not necessary for the Tribunal to proceed to a consideration as to whether Mr Butic meets the criterion under s 24(1)(d) and s 24(1)(e) because it has concluded that the mandatory criterion under s 24(1)(c) in not met in Mr Butic’s case.
Conclusion in relation to s 24(1)
In light of the mandatory criterion under s 24(1)(c) not being met in Mr Butic’s case, the Tribunal concludes that Mr Butic does not meet the “disability requirements” under s 24 of the NDIS Act.
Whether Mr Butic meets the early intervention requirements under s 25
Prior to the recent legislative amendments, s 25 of the NDIS Act provided as follows:
Early intervention requirements
(1)       A person meets the early intervention requirements if:
(a)       the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)      is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)       preventing the deterioration of such functional capacity; or
(iii)      improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note:   In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(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.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)       as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

As explained above, this provision will apply to Mr Butic as his access request was made prior to 3 October 2024.
Mr Butic seeks supports to help him with heavy tasks in the home. This is not an “intervention” which is likely to reduce his future need for disability-related supports. At best, that would result in Mr Butic having tasks done in the home which he believes he is unable to do himself. The Tribunal considers that this is not an intervention: it is a support. The Tribunal will focus below on the other interventions discussed throughout the hearing. These discussed interventions are the possibility of Mr Butic receiving psychotherapy as recommended by virtually all of this doctors, the possibility of Mr Butic undergoing hydrotherapy, an exercise program supervised by an exercise physiologist, and ongoing physiotherapy.
At the hearing, Ms Blok on behalf of the NDIA contended that s 25 of the NDIS Act is not engaged in Mr Butic’s case because he is not in the “early trajectory of the impairment.” Ms Blok relies upon the evidence from Dr McCallum and A/Prof Davies to support a conclusion that “we are not in the early stages of Mr Butic’s impairment in terms of its trajectory.”
The Tribunal notes that the wording in Rule 6.9(a) of the Access Rules does not align precisely with the Ms Blok’s contention about what the Tribunal should take into account. Rule 6.9 is prescriptive about which matters the Tribunal is expected to take into account when making its assessments under s 25(1)(b) and (c) of the NDIS Act.
The Tribunal notes that Rule 6.9(a) states that it is expected that the CEO (or this Tribunal on review) “would consider the likely trajectory and impact of a person’s impairment over time.” It says no more than this about the trajectory of the impairment. Rule 6.9(b) provides that the Tribunal will also need to consider 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. Finally, Rule 6.9(c) expects that the Tribunal will consider evidence from a range of sources, such as information provided by the person with disability or their family members or carers, and in some cases, expert opinions.
The Tribunal notes that:
(a)Dr McCallum advised that Mr Butic’s functional capacity will be extremely closely linked to his mood;
(b)the medical evidence before the Tribunal consistently indicates that Mr Butic’s impairment might improve were he to receive extensive psychotherapy; and
(c)in respect of Mr Butic’s likely response to psychological intervention, Dr McCallum’s opinion is that “it is almost impossible to predict a patient’s response to psychological and psychiatric for somatic disorder predominantly pain.”[219]
[219] HTB, TB3/10
Further, the Tribunal notes that Dr McCallum considers that such treatment may take many years and the response is often poor.[220]
[220] Ibid.
The Tribunal notes the following exchange that took place between Ms Blok and Mr Butic during cross-examination:[221]
[221] Transcript, P-96.
MS BLOK: [A/Prof Davies] said that there was a reasonable prospect of improvement if you attended psychotherapy in the long term. Do you recall that?
INTERPRETER: Yes, I do.
MS BLOK: What do you think about that?
INTERPRETER: Yes, okay. I told doctor before, what I am suffering from is not a mental problem. It is a physical injury that I have sustained is causing me the pain. So it has nothing to do with my thinking or psychotherapy.
MS BLOK: So you don’t think it will help you. Is that right?
INTERPRETER: Yes. It is the pain that is letting me to (indistinct) a lot. It has nothing to do with mental. The physical injuries are causing me the pain, so it’s not going to help.
MS BLOK: Do you think you wouldn’t attend a psychotherapist?
INTERPRETER: I tried before and it didn’t help.
MS BLOK: So you don’t want to try it again?
INTERPRETER: You want me to try again, to give it a go?
SENIOR MEMBER: Sorry. What was the answer, Mr Interpreter?
INTERPRETER: He said, do you want me to try it again? He’s asking you back. Do you want me to try it again?
MS BLOK: Well, Dr Davies suggested that that might be a useful thing to do long term, and if you engaged he thinks that there was a reasonable prospect of improvement.
INTERPRETER: I don’t think something is going to change here. I sustained the injury in 2014, until now, nothing has changed.
The Tribunal also notes the exchange which took place between A/Prof Davies and the Tribunal at the hearing:[222]
[222] Transcript, P-103.
SENIOR MEMBER: Sorry, Ms Blok. I have a question for the doctor. Doctor, on page 7 of your report you answered a question, ‘Would any of the treatment options be likely to remedy Mr Butic’s impairments’. And you answer, ‘There is a reasonable prospect of long term improvement if Mr Butic engages in long term psychotherapy’. Given your evidence a moment ago, do you wish to change that statement?
A/PROF DAVIES: Essentially. Look, I’m a treating psychiatrist and as such one is always looking to try to make people better. However, there is a prospect, but as we discussed in evidence today, the prospects of success are not high.
SENIOR MEMBER: They’re not high. So where it says, ‘There is a reasonable prospect’, did you want to change the way you’ve expressed that?
A/PROF DAVIES: Well, if we just delete the word ‘reasonably’ and leave ‘prospect’.
SENIOR MEMBER: All right. And so your evidence before that the prospects are poor, is that your position?
A/PROF DAVIES: Yes.
In light of the above evidence, even if an opportunity was available to Mr Butic to attend a program of psychotherapy (that is, at no cost to Mr Butic), the Tribunal considers that the likelihood of him engaging with psychotherapy as an intervention, with a positive mindset and level of commitment required to achieve any results, is low. It is evident from the exchange set out in paragraph [148] that Mr Butic genuinely believes that his problems are physical, rather than being capable of resolving by “talking” as Mr Butic’s puts it. The Tribunal finds that the prospects of Mr Butic attending psychotherapy sessions at a frequency and sufficient degree of intensity, and with an appropriate degree of commitment to activities undertaken in those sessions, is remote. For these reasons, the Tribunal finds that this intervention is unlikely to result in any improvement in Mr Butic’s impairments or to reduce his future needs for supports.
The other category of possible interventions might involve Mr Butic undergoing hydrotherapy, an exercise program supervised by an exercise physiologist, and ongoing physiotherapy. The Tribunal finds that these interventions are also likely to hit a roadblock. There is evidence before the Tribunal revealing that Mr Butic is fearful of mobilising too much in case it will cause him more pain. This is a vicious circle: the less he mobilises, the more his body is likely to become deconditioned. The point is that Mr Butic has demonstrated major compliance issues in respect of engaging with these types of interventions which have been repeatedly recommended to him. The Tribunal considers that Mr Butic will continue to be largely non-compliant with recommendations as to the regular physical exercises he is to complete as part of an exercise program designed to recondition and strength Mr Butic’s body.
For these reasons, relating to both the psychological-based interventions and the physical-based interventions (which will be referred to collectively as the ‘interventions’), the Tribunal finds that:
(a)the likely trajectory and impact of Mr Butic’s Impairments over time is likely to poor, even if he were to be offered those interventions free of charge; and
(b)the potential benefits of the interventions on Mr Butic’s impairments, his functional capacity, and in reducing his future needs for supports, are likely to be negligible.
Accordingly, the Tribunal is not satisfied that Mr Butic meets the mandatory criterion under s 25(1)(b) of the NDIS Act because the provision of the interventions for Mr Butic is not likely to benefit his future needs for supports in relation to disability.
Separately, the Tribunal is not satisfied that the provision of the Interventions for Mr Butic is likely to benefit him by:
(a)mitigating or alleviating the impact of the person’s impairment upon his functional capacity to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(b)prevent the deterioration of or improve such functional capacity.
The Tribunal notes Mr Butic has limited informal supports available to him and does not presently have a carer but even if he did, the Tribunal is satisfied that these interventions would not strengthen the sustainability of informal supports available to Mr Butic, including through building the capacity of his carer.
For these reasons, the Tribunal concludes that Mr Butic does not meet the “early intervention requirements” under s 25 of the NDIA Act.
While it is not necessary for the Tribunal to proceed to a consideration as to whether the exclusion under s 25(3) of the NDIS Act (because it has found that he does not meet the early intervention requirements under s 25), the Tribunal notes the evidence provided by the NDIA about the other general systems of support which may be open to Mr Butic to apply for and receive some or all of the supports which he is seeking. Primarily, this includes the HACC PYP which would make home support available for Mr Butic at a subsidised fee. Additionally, the terms of this program indicate that a person will not be denied such services if they cannot pay the subsidised fee. The Tribunal notes that this program also, potentially, may provide access to Mr Butic to allied health service such as physiotherapy or psychology. A limited number of such services are also accessible through the public health Medicare scheme subject to Mr Butic’s treating General Practitioner placing Mr Butic on a Mental Health Care Plan or a Chronic Disease Management Plan. Mr Butic is at liberty to seek supports and intervention via those general service systems.
CONCLUSION
The Tribunal has concluded that Mr Butic does meet the “disability requirements” under s 24 of the NDIS Act. The Tribunal has also concluded that Mr Butic does not meet the “early intervention requirements” under s 25 of the NDIS Act. For these reasons, the Tribunal concludes that Mr Butic does not meet the access criteria under s 21 of the NDIS Act. This means Mr Butic will not be granted access as a participant in the NDIS.
The Tribunal affirms the Decision Under Review.

Date(s) of hearing: 22 & 23 August 2024, 26 September 2024

Date final submissions received: 29 November 2024

Applicant: In person

Counsel for the Respondent: Ms Natalie Blok

Solicitors for the Respondent: Mills Oakley

Date(s) of hearing:	22 & 23 August 2024, 26 September 2024
Date final submissions received:	29 November 2024
Applicant:	In person
Counsel for the Respondent:	Ms Natalie Blok
Solicitors for the Respondent:	Mills Oakley