Cakir and National Disability Insurance Agency (NDIS)
[2025] ARTA 1661
•17 July 2025
Cakir and National Disability Insurance Agency (NDIS) [2025] ARTA 1661 (17 July 2025)
Applicant/s: Erol Cakir
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/7665
Tribunal:General Member J McAteer
Place:Sydney
Date:17 July 2025
Decision:The Tribunal affirms the decision under review.
................................[SGD]....................................
General Member J McAteer
Catchwords NDIS Access reviewable decision of Chief Executive Officer – becoming a participant- access request- whether applicant meets the access criteria – whether applicant meets the disability requirement – whether applicant has impairments which are, or likely to be permanent – whether impairment or impairments result in substantially reduced functional capacity – requirements not satisfied – reviewable decision affirmed
Legislation Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Administrative Review Tribunal Act 2014
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024National Disability Insurance Scheme (Becoming a Participant) Rules2016 (Cth)
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Mulligan v National Disability Insurance Agency [2015] FCA 544
Foster and National Disability Insurance Agency [2021] AATA 4738
National Disability Insurance Agency v Foster [2023] FCAFC 11
Secondary Materials
Statement of Reasons
INTRODUCTION
Mr Erol Cakir (the Applicant) applied to access the National Disability Insurance Scheme (‘the NDIS’ or ‘the scheme’)in April 2023. The application was refused in May 2023 whereby a delegate of the Chief Executive Officer found that the Applicant did not meet the necessary criteria to access the Scheme and become a participant in the NDIS. On internal review in September 2023 another delegate of the Chief Executive Officer affirmed or upheld the decision to refuse access to the Scheme and the Applicant remained excluded from the NDIS. An application was lodged with the Administrative Appeals Tribunal (AAT) in October 2023. On 15 October 2024 the Administrative Review Tribunal (ART) replaced the AAT (see [31] below).
The issue to be decided by the Tribunal is whether the Applicant meets the access criteria to be a participant of the the scheme in accordance with section 21 of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’ or ‘the Act’).
BACKGROUND
The Applicant is a 39-year-old male who lives with chronic pain arising from his physical impairments being Psoriatic Arthritis, Fibromyalgia, Chronic Pain and Iliotibial Band Syndrome and psychosocial impairments being Major Depressive Disorder and Anxiety.
The Applicant lives alone in South Western Sydney in a private rental of two bedrooms. He moved to his current residence in recent years. The Applicant suffered a workplace injury which precipitated his current diagnosis. That injury and his subsequent diagnosis prevent him returning to work. At the time of his injury, he was married. The marriage lasted three years and he has now been divorced for seven years. As he was no longer able to work or return to work, he became more reliant on others including family members for assistance.
In November 2022, the Applicant applied for access to the NDIS based on the following reported disabilities:
(a)Psoriatic Arthritis, Fibromyalgia and Major Depressive Disorder.
Further evidence in support of the access request was provided by the Applicant in April and early May 2023.
On 15 May 2023, a delegate on behalf of the National Disability Insurance Agency decided that although the Applicant satisfied the age and residency access criteria, they were not satisfied that the Applicant met the full disability requirements or the early intervention requirements in sections 24 and 25 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) and refused access to the Scheme.
Internal Review
On 9 August 2023 the Applicant requested an internal review of the decision of 15 May 2023. By way of decision dated 23 September 2023, a different delegate of the CEO conducted a review of the earlier decision and confirmed that decision. In the internal review the Respondent was satisfied that the Applicant met the age criteria / requirements in s 22 and the residence requirements. They were however not satisfied that the Applicant met the disability requirements under s 24.
Section 24 Criteria - disability
In respect of criteria under s 24 (1) (a) on impairments the delegate was satisfied that the Psoriatic Arthritis, Fibromyalgia and Chronic Pain that the Applicant lives with a disability attributable to a physical impairment. Likewise in respect of Major Depressive Disorder and Anxiety they were satisfied that the Applicant lived with a disability attributable to a psychosocial impairment.
However, in respect of a disability-based claim on irritable bowel syndrome, gastritis and Haemorrhoids, the delegate was not satisfied that the first disability criteria had been met. This finding was based on an assessment of the available evidence which resulted in a finding that the Applicant’s diagnosis on these discrete matters did not lead to a reduction or loss of, or damage to a physical or mental function. The delegate was unable to determine that the Applicant had any functional impacts that directly arise from these conditions listed above and therefore concluded that those conditions could not be considered impairments consistent with the NDIS requirements.
In respect of criteria under s 24 (1) (b) on permanence, being that the impairments are likely to be permanent, the delegate was not satisfied that the criteria had been met. The NDIA was unable to make an assessment that the conditions and resultant impairment were permanent. Concerning physical impairments, they acknowledged the long-standing symptoms and difficulties experienced by the Applicant and considered the current treatment outlined by Dr Alam in respect of physical impairments. Reliance appears to have been placed on the evidence that Dr Fayad had outlined a 52 week treatment regime (twice weekly) which would be expected to result in improvements to lower limb strength, joint pain and ability to perform tasks independently.
Amongst other findings in the analysis of the evidence the delegate found that the evidence did not conclude to their satisfaction that all recommended treatments had been explored and completed, and as a result they were unable to make a finding that on permanency in respect of the physical impairments at the time of decision.
In respect of psychosocial impairment the delegate referred to the evidence of psychological interventions and Cognitive Behavioural Therapy (CBT) assisting in thought restructuring. However, the delegate found that there was insufficient information to establish permanency by confirming that all of the available treatment options had been explored and completed in that the psychosocial impairment had been optimally treated and stabilised. The delegate set out in their reasons what further evince might assist in this regard in a future application.
In regard to criteria under s 24 (1) (c) on functional impact, the delegate was not satisfied that there was substantially reduced functional capacity or psychosocial function to undertake the six domains of communication, social interaction, learning, mobility and self -care and self-management.
Whilst they acknowledged that the Applicant had limitations which affected the way he did things, reference was made to the need under the Legislation and Rules that a proposed participant will, usually need disability-specific support to participate or complete activities in one or more of the six categories of either communication, social interaction, learning, mobility, self-care, and self-management. In this regard the delegate found that the Applicant did not need a high level of support from other people, such as physical assistance, guidance, supervision or prompting, nor did they require assistive technology, equipment, home modifications prescribed by his General Practitioner, or other health / medical professionals. The delegate found that the evidence demonstrated that the Applicant’s impairments only resulted in difficulties in completing certain tasks. They found that the evidence of the Applicant’s impairments did not result in the need for a high level of support from other people, assistive technology or equipment and home modifications to complete the stated activities and remain safe and independent in the community. In reaching this finding the delegate referred to and relied on Section 5.8 of the National Disability Insurance Scheme (Becoming a Participant Rules 2016.
The delegate found that criteria (d) concerning the impact of the disability on a person’s capacity for social or economic participation was met.
However, in respect of whether the disability required lifetime support (criteria (e)), the delegate was not satisfied that this criteria was met for either physical or psychosocial impairments / disabilities. In considering the Applicant’s life circumstances, the nature of their long-term support needs and whether their needs could be met by alternative support, the delegate found that while conceding that the Applicant would benefit from support, because they failed to meet the criteria set out in s 24 (1) (c), the delegate concluded that it could not be said that lifetime support was required on the available evidence.
The delegate concluded that the Applicant’s needs remained best supported through some other system of support as the NDIS only provides lifetime support.
Section 25 Criteria – early intervention
In respect of the s 25 Early Intervention criteria the delegate found that the Applicant did not meet this criteria. The initial criteria on impairments (s 25 (1) (a) (i) and (iii)), when considered for early intervention access eligibility under the Guidelines require that an impairment is likely to be permanent. In respect of disability under s 24 at [10]-[12] above the delegate made no such finding. As a result, the impairment criteria for early intervention eligibility was not met.
In respect of s 25 (1) (b) on reducing future need for support the delegate found that there was no information or evidence provided to suggest that early intervention supports would be likely to reduce the Applicant’s future support needs in relation to disability.
In respect of criteria (c) on improving capacity, the improvement can be measured by up to four outcomes: lessen the impairment’s impact on (i) functional capacity for communication, social interaction, learning, mobility, self-care or self-management, (ii) prevent the deterioration of functional capacity, (ii) improve functional capacity or (iv) strengthen informal supports, including building the carer’s capacity. The delegate found that the evidence provided did not demonstrate or indicate that early intervention supports would be likely to benefit the Applicant in the manner outlined at (i) to (iv). The delegate opined that there was no evidence provided to indicate that early intervention supports would assist as there was no indication of what benefits might or might not be experienced from receiving support. The delegate found no evidence that supports would improve the Applicant’s capacity by: (i) preventing the deterioration of functional capacity, (ii) nor would they improve functional capacity directly, or (iii) strengthen informal supports and build the Applicant’s own capacity.
The final criteria concerns s 25 (3) which has since been repealed. As the amendments which received assent on 5 September 2024 and commenced operation on 3 October 2024 post-date the application, the provisions brought about by the amending Act, National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 do not apply retrospectively.
The s 25 (3) provision provides that:
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 NDIS 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 universal service obligation, or
(b) In accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The delegate found that the available evidence did not indicate that NDIS support was the most appropriate available early intervention support. They found that early intervention supports would be more appropriately funded through the health system or other government services. The delegate referred to clinical treatment being a responsibility of the health system, not the NDIS.
As the delegate found that the Applicant did not meet the disability requirements under section 24 or the early intervention requirements under section 25 of the NDIS Act following Internal Review, the Applicant then sought review of the Internal Review decision by this Tribunal pursuant to section 103 of the NDIS Act on 17 October 2023.
The Tribunal held a hearing by video on 13 May 2025 and 14 May 2025. The Applicant was not legally represented at hearing but was assisted by an Advocate who was given leave to represent the Applicant pursuant to s 66 (1) of the ART Act. The Agency was represented by Ms S Love of counsel instructed by Maddocks Solicitors.
In arriving at its decision, the Tribunal has considered the various documents contained in the joint hearing bundle (JHB) which was accepted into evidence. The Applicant filed various documents including a letter from Psychiatrist Dr U Malik, a letter from his GP Dr M Hawi, a letter from K Watson Psychologist, Dr A Keeley Orthopaedic Surgeon, Dr I Gotis-Graham Rheumatologist and Consultant Physician, Dr N Kalamaraj Rheumatologist, Dr M Alam GP, and Dr I Kamoun Podiatrist. A report was tendered from M Abu-Mahmoud Consultant Psychologist, an NDIS Access Request and Supporting Evidence Form from Dr Alam GP and NDIS Evidence of Psychosocial Disability Form from DM Abu-Mahmoud Psychologist and Dr M Alam GP were also tendered.
At hearing further information was tendered by the Applicant including reports by J Semaan Occupational Therapist (OT) dated, 9 July 2024 and 3 March 2025, reports of Dr N Kamalaraj Rheumatologist dated 20 November 2023 and 28 March 2025 as well as targeted question reports by K Watson, Dr Alam, A Fayad and F Faheem Physiotherapist. The Applicant also relied upon his statement of lived experience of 19 February 2024 and a further statement dated 30 April 2025 and a Statement of Position dated 2 May 2025.
The Respondent’s Statement of Facts, Issues and Contentions dated 19 November 2024, and independent Medical (OT) report of Jessica Harper dated 8 July 2024 and Supplementary Report of Jessica Harper dated 1 May 2025 as well as a further updated report dated 12 May 2025 were also admitted into evidence. The Tribunal was assisted by the opening and closing submissions of both parties, which were made orally at the hearing.
PRE-HEARING PROCESS
By October 2024 the matter was deemed ready to be timetabled to hearing with directions issuing on 8 October 2024. Once the matter was constituted to a Member on 4 November 2024 a readiness hearing was scheduled for 13 December 2024
A variation to the existing timetable was sought by the Applicant in part because of a difficulty in contacting their OT Witness and whether they were seeking an updated report from him. A final directions hearing occurred on 19 February 2025 whereby final direction of filing and serving material were made.
AMENDMENTS TO THE NDIS AND TRIBUNAL LEGISLATION
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). In accordance with the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) commenced on 3 October 2024 and made amendments to the NDIS Act. As the Applicant’s request for access to the NDIS was made before 3 October 2024, section 126 provides that the NDIS Act, Rules and Guidelines apply as they existed before commencement of Act. Both parties agreed that the amendments to the NDIS of October 2024 did not apply to these proceedings being access proceedings.
LEGISLATIVE FRAMEWORK
The access criteria
As noted above these proceedings concern a review of a decision to refuse access to the Scheme. As set out above applying to the applicant’s stated circumstances the legislative criteria and policy provisions must be met on the available evidence in order to access the Scheme.
As the Tribunal has regularly observed from an examination of the Legislation, to become a participant of the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
As noted from the decision under review, there is no dispute that the Applicant satisfies the age and the residence requirements. What the Tribunal must decide is whether the Applicant satisfies the access criteria in section 24 (‘the disability requirements’) or section 25 (‘the early intervention requirements’).
Section 24 of the Act states:
(1) A person meets the disability requirementsif:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self care;
(vi) self management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
If the Applicant does not meet the disability requirements, the Tribunal must consider whether they meet the early intervention requirements set out in section 25 of the Act which relevantly states:
(1). A person meets the early intervention requirementsif:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has a developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
Under subsection 209 (1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that NDIS rules may prescribe circumstances and criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules in the Applicant’s case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), which form part of the legislative framework.
The NDIS Operational Guidelines are relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[1] It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409. The relevant Operational Guideline at time of the decision under review are: Our Guidelines – Becoming a participant – Applying to the NDIS (1 February 2024)(‘the Access Guideline’).[2]
[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[2] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 February 2024).
As previously noted by the Tribunal in the case of Mulligan[3], the Federal Court held that the legislation pertaining to the access criteria requires “a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted”.[4] The Full Court of the Federal Court of Australia in Foster[5]also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[6]
[3] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’) at [55].
[4] Mulligan at [55].
[5] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’).
[6] Foster at [44].
For the Applicant to gain access to the Scheme, the Tribunal must be positively satisfied that all the access criteria in either the disability requirements or the early intervention requirements are met. The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[7] In accordance with Foster the Tribunal must consider a functional practical assessment of what the Applicant can and cannot do.
[7] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
Evidence at hearing
The Applicant’s advocate Mr Robin submitted in opening that the difference in the position of the parties concerns what the Applicant can achieve on a good day and what he can achieve on a bad day and how often these variations occur and impact him.
The Respondent submitted that they accept the physical ailments in the main leading to reduced mobility. They accept that the Applicant has physical impairments of Psoriatic Arthritis, Fibromyalgia, Chronic Pain and Iliotibal Band Syndrome, and psychosocial impairments of Major Depressive Disorder (MDD) and Anxiety and that these impairments were likely to be permanent. However, they disputed that the Applicant has a substantially reduced functional capacity arising from these impairments.
Applicant’s Evidence
In evidence in chief the Applicant explained what he meant about the difference between good and bad days. The Applicant said that on a good day he still could not do the shopping, cut the grass or clean. On a bad day the Applicant said that he lies on the couch all day. He said that on a scale of 1 being the best and 10 being the worst, he never had a ‘1’ day. He said that his days fluctuated between 5 and 10. When he lies on the couch all day he also avoids eating.
The Applicant said in evidence that he avoids showering on bad days and utilises ‘wet wipes’ in lieu. He said that on a good day he still avoids showering and utilises wet wipes and washes his private areas and other parts of his body including feet but not all over such as wiping his back. The Applicant advised that he cannot prepare food and cannot cook and only eats fruit and nuts and two-minute noodles.
The Applicant advised that when the NDIA Occupational Therapist (OT) Ms Harper assessed him, it was not a typical day. In respect of his 30 April 2025 statement where he says that he does not go out, the Applicant clarified that does not have the means or energy to go out whenever he would otherwise wish to. Sometimes he cannot find the energy to drive his car.
The Applicant advised that he only leaves the home for medical appointments. He said that he wants to interact but is not ready to. He said that he drives his car only about once a week or once a fortnight on average. He said that he has his sister assist him with shopping. The Applicant said that he now does not participate in any social activities.
The Applicant referred to the impact of what he termed as ‘brain fog’ impacting his concentration and that ‘little things that he used to do easily he now finds difficult’. In response to a reference by the OT Ms Harper that the Applicant cooked eggs to consume the Applicant denied that this was the case. On a good day he said that he could walk for 10 minutes but after that he is impacted. On a bad day he said that he struggled to walk more than 5-10 metres.
The Applicant said that some mornings he cannot make it to the toilet as getting out of bed is the hardest. In respect of driving his car the Applicant said in evidence in chief that on a good day he can drive for 10-15 minutes in one go as the fixed driving position places limitations on him. He said that socialising is ‘very hard’ and that he does ‘not go out’ and again stated that he ‘only drives for medical appointments’.
The Applicant said that his parents were divorced and live in home units with stairs and no lift. One lives 30 minutes away by car and the other lives 40 minutes away by car. For these reasons the Applicant outlined how he cannot easily visit them. He said that he does talk to them on the telephone every two to four weeks. The Applicant said that he has had ‘bad days last for weeks’ and that he ‘can’t always get assistance from family’.
In cross examination the Applicant agreed that he had been seeing Kerrie Walker the Psychologist since 2017. He said that he sees her regularly through the Medicare funded referral scheme. The Applicant said that he was not currently seeing a psychiatrist due to cost. He said that he had tried all of the medications and did not feel that they are helping him and so he believed that there was no ongoing need to be seeing a psychiatrist. When questioned about having a break from any type of treatment the Applicant advised that nothing had been working to improve his situation. He said that some of the side effects of the medication he had been receiving were harsh.
The Applicant confirmed that there had been no biological therapy since March 2024 as the doctor had recommended a break from the medications. In respect of Rheumatology treatment, the Applicant said that his most recent appointment was five months ago around the end of 2024 or the start of 2025. He said that his Rheumatologist told him that there is no other medication that will assist him. The applicant confirmed in cross examination that he had not seen a chronic pain specialist.
In respect of the use of his hands, the Applicant was asked to explain his practical circumstances. He said that his hands were ‘deformed’ and that he can’t prepare food as cutting involves pressure and force. When asked about his earlier evidence of using ‘wet wipes’ for toileting the Applicant said that he can get by with them as no force was required when using them (referring to force applied by his hands). The Applicant also advised that he cannot stand for long and that as a result of his physical limitations he mainly gets by on nuts and fruit for food.
The Applicant was asked about his motor vehicle, which he advised was a normal sedan. He confirmed that he could mobilise into the car and drive it. In respect of his dwelling, the Applicant described it as a two bedroom house but essentially more like a small granny flat. He said that the second bedroom is used for storage. Whilst he has a small garden or yard he does not utilise it in any practical way. The Applicant was questioned as to why he does not move to a smaller house. He said in response that the home is very small and that he could not find something any smaller.
The Applicant said that he does not attend family functions or social events and does not celebrate birthdays. This was in the main due to his inability to get out and travel. In addition he gave evidence that he does not use social media but does spend significant time on the internet watching You Tube videos.
The Applicant was asked about his workplace accident which appears to have triggered his health decline resulting in his current disabilities. He said that he felt pain at work one day in 2015. That pain turned out to be early symptoms and he was eventually diagnosed in 2022. The Applicant said that he could not work ever, even in a white collar role and that he can’t sit for any period of time in front of a computer due to his disabilities. The Applicant gave evidence that he cannot write or type. He said that he tried to type for Ms Harper the OT during the assessment.
Concerning his leaving the home to attend medical appointments and how he copes on a not so good or bad day, the Applicant relayed that more recently most medical appointments that he has are now over the telephone or video which addresses his reluctance to leave the home and his lack of ability to type at a computer.
The Applicant advised that he was not willing to participate socially with others as he has zero social interests. He recently qualified for the Disability Support Pension (DSP) on the basis of bilateral arthritis and psychological disabilities. The Applicant advised that the DSP provides approximately $1,200.00 per fortnight. When asked how he supported himself since he was unable to work the Applicant advised that from 2016 to late 2024 he used savings and Centrelink payments.
When asked how he spends his days the Applicant said that when he can get out of bed he spends the day of his couch watching TV all day. He is able to operate the remote control. In liaising with his OT Mr Semaan he said that on the second follow up he was asked questions over the telephone once or twice but for the main assessment it was face to face in the home.
When asked about Ms Harper OT who was commissioned by the NDIA, the Applicant said that on the day that she came it was a particularly good day for him physically and psychologically. It was put to the Applicant that the Harper report verified that he was able to perform various physical tasks otherwise denied. He could get out of bed, bend over and do many activities of daily living (ADL’s). When asked how he would rate his abilities for today on the previously mentioned 1-10 scale, the Applicant said that today would be an 8 out of 10 (noting that a rating of 10 is the most impaired and that the Applicant’s prior evidence was that he is never in the top 50% of functionality). When asked about his circumstances of being at Mr Robin’s premises to give evidence by video the Applicant said that his father came over and helped him dress and then drove him from his home to Mr Robin’s premises.
Further questioning occurred around who else visited the Applicant at his home and how he attended to personal grooming and other ADLs. The Applicant said that he has a local barber from the community come and visit his house every two to three months. The Respondent suggested to the Applicant that he should accept that persons outside his family do visit his residence. The Applicant also advised that he has someone come to mow the lawn.
In respect of mobility the Applicant confirmed that he was using a walking stick today to mobilise. He said that the walking stick was the only piece of equipment that he used in the home to assist. In respect of pain and inflammation relieving medications the Applicant said that some medications were bad for his body such as Cortisone. The Applicant also advised that his house is too small for wheelchair access and that a change of housing is in his short term future plans. Some other questions were asked in cross examination about the Applicant’s functional abilities. He was asked if he could button up clothes, to which he said that he was unable to perform that task. He said that he does not have clothes with buttons but uses zips and proffered the jacket he was wearing as evidence of this. He said that with his dexterity he can use the TV remote but on a bad day he cannot even do that. He said that he also cannot operate a microwave oven on a bad day.
The Applicant was asked about his car and how he accesses it. He said that it was in the garage and that he uses ‘the little metal piece’ (the roof gutter course) to swing down into the seat with the open door. He said that he used that technique to get in and out of the car.
In re-examination the Applicant was asked whether talking to his family either on the telephone or at his home was different to socialising and talking to his friends. He said that it was not the same and much easier. He said that he had known his family since birth and he was as a result much more comfortable around them.
The Tribunal asked a number of questions of the Applicant consistent with s 49 and s 53 of the ART Act. In respect of how the Applicant filled his car with petrol and maintained its servicing and related matters the Applicant advised that he has his sister attended to those things on his behalf. He said that he did not do a lot of distance in the car and had not had it serviced since he purchased it. In respect of attending physiotherapy the Applicant said that he has APC (Advanced Primary Care) Medicare referrals five times a year. The psychology sessions are similar, but they equate to 10 referrals a year.
The Applicant advised concerning meals that his mother used to prepare a lot of his meals in the past but is less able to do it now. He said that he eats meat only when brought by the family and they prepare that food (Halal) for him. The Applicant was asked about the support he received to live where he does. He said that he moved into his current premises in 2018 or 2019 before Covid. He said that his sister helped him with the move including organising the rental with the real estate agent. The OT had recommended that he move to more spacious premises and that he live in a wheelchair accessible house.
Ms K Watson (Psychologist) evidence
In evidence in chief Ms Watson said that she last saw the Applicant as a patient on 8 May 2025. She advised that their sessions usually revolve around coping strategies. The witness was taken to pages 64 and 265 of the Tender Bundle – JTB (Sept 2018 report and March 2024 reports) and was asked if there were any changes in the Applicant since the March 2024 assessment. They advised that there had not been any change.
Ms Watson referred to the lack of interaction with any friends being a significant matter for the Applicant and referred to the Applicant ‘severing his connections’ with friends. Ms Watson added that the Applicant was quite limited with his dealings with family to her understanding. The witness was asked whether interacting with family members was evidence of social skills. Ms Watson indicated on reflection that such matters would demonstrate social skills. Ms Watson noted that the decrease in social interaction resulted in withdrawal which would make obtaining assistance from another person (such as with care and support) for others even more difficult for the Applicant.
Ms Watson said that in their sessions the Applicant had reported that he is a burden on others and is unable to offer anything to his friends. She described the Applicant as always being pleasant and neat and tidy but that she observed that he wanted to seriously isolate himself from others.
In cross examination Ms Watson was asked about the cessation of treatment for the Applicant. She said that he had a break from her treatment sessions for a year or more and was not aware of any other treatment being provided during this period.
The witness was taken to page 65 of the Tender Bundle where in 26 September 2018 she references treatment undertaken. Ms Watson said that she used Cognitive Behavioural Therapy (CBT) on the Applicant as well as narrative exposure therapy and present centred therapy and relaxation therapy were employed. Ms Watson said that her observations were that the Applicant is increasing his understanding of his psychological conditions and that he was still struggling with chronic and persistent pain. Ms Watson said that the Applicant’s physical incapacity was continuing to play into the psychological domain for the Applicant and agreed that an inability to return to work is a strong factor in all of this.
The witness said that some of her views were based on an understanding that all rehabilitation work for the Applicant had been exhausted with no real improvement. In respect of her March 2024 report at page 226 of the Tender Bundel reference was made to the struggles with pain and difficulty mobilising upstairs. It was put to the witness that the Applicant was able to give evidence in an appropriate manner at hearing today. This it was suggested was in stark contrast to her answer to tailored question 4 in that report, that the Applicant suffers communication impairments including frequent episodes of confusion, disorientated thought processes, and perceptual abnormalities that serve to severely impair his comprehension of verbal communications and instructions which causes significant distress. He struggles to articulate his thoughts and feelings which causes him to withdraw.’
In respect of psychosocial medications, the witness said that the Applicant did not respond well and that the Applicant did not tolerate the side effects of the medications. When it was suggested that the medications had not been taken for long enough to determine whether there were any long term benefits the witness agreed that was a fair enough observation to make. The witness confirmed that in making her assessments she mainly relied upon the Applicant’s self-reporting to her. It was noted that the Applicant had the ability to drive and to go and socialise with others but that he felt too depressed to do so. The witness confirmed that in her view the Applicant can read and write. She advised that whenever she sees the Applicant he is ‘always neat and tidy’.
In re-examination the witness was asked whether the Applicant had ever given her a reason to question or doubt the answers that he provided. The witness said that no such doubts arose. When asked about the Applicant’s isolation the witness said other factors such as the parental marriage breakdown and loss of his own home following his own marriage breakup contributed.
The Tribunal asked some questions of the witness specifically the basis of the initial referral. The witness confirmed that it was in the workers compensation context following his work related injury. In respect of the first period or tranche of treatment, the Tribunal asked the witness whether it moved across from the workers compensation type issues to the more generalised disability issues, The witness said that was the case to an extent.
On day two of the hearing the expert evidence of the two Occupational Therapists was adduced.
Mr J Semaan Occupational Therapist evidence
In evidence in chief the witness confirmed that his first assessment of the applicant occurred over 90 to 100 minutes in 2024. The witness said that he observed the Applicant performing tasks and exchanged questions and answers when doing the assessment. In respect of the second assessment he also tried to do observations of the Applicant. The witness said that the results were very similar. The witness said that the thrust of the second assessment was to attempt to determine matters in response to the OT report of Ms Harper.
Mr Semaan said that he came up with different recommendations than Ms Harper arising from the assessment, He recommended a new bed whereas Ms Harper did not. The witness said that the ‘Hi-Lo’ bed allows the hips to get up at a higher stance. The bed pole as recommended and currently used is not adequate to sustaining a high level of independence according to the witness.
The witness said that the references to a scooter, electric wheelchair and other mobility aids was all based upon the Applicant’s mobility issues. The Applicant is considered a high falls risk and these aids would reduce barriers to community access. Reference was made to support for morning dressing and grooming which would enable the Applicant to maintain his energy for later in the day so that he does not become fatigued.
In cross examination the witness was questioned about his CV and a suggestion that there had been no verification of his qualifications. He said that he had been an Occupational Therapist (OT) since 2016/2017 and attained his academic qualifications from Western Sydney University. In respect of the May 2024 assessment the witness advised that he asked questions of the Applicant and observed him in his home. The witness said that he did not take any photos or make any formal notes during that assessment.
In explaining the findings in the table from page 332 onwards on his report in the tender bundle the witness was asked to clarify aspects of the finding that the Applicant was a high falls risk. The witness answered that the Applicant was required to hold walls when moving inside the home and use a walking stick when they went outside. The witness said that all of his findings were based on observations and self-reports by the Applicant. In respect of the Applicant’s reporting pain and fatigue the witness confirmed that the evidence of this in his report arose solely from the Applicant’s self-reporting of the pain.
The witness advised that he made notes about the medical reports that he viewed but at the time of his cross examination by video he did not have his notes or the reports he referenced before him and was unable to comment further on them. In respect of the references in his reports to the Applicant having: good, average or bad days the witness agreed again that the criteria and answers he utilised was based on the Applicant’s own self reporting.
In respect of the Applicant’s mobility the witness did not agree with the proposition that his opinion had been based on worst case scenarios. He assessed mobility during the assessments in person. Bed mobility and general transfers were observed. The driving of the car was not observed but based his findings on the Applicant’s self-reporting. The witness also did not observe showering but noted that the Applicant advised that he was not showering. The witness said that the Applicant talked him thorough the process of how he toilets and showers. The witness said that at the time of the assessments whilst the Applicant was not messy or rough in his appearance he was not ‘well dressed’. He wore pants lower and a jumper upper. In respect of buttons the witness said that the Applicant self-reported that he could not use buttons or a zipper.
In respect of grooming the witness advised that the Applicant is able to complete such tasks but had done so with difficulty. Brushing teeth, hair and washing face were all based on the Applicant’s ability to stand for a length of time to complete the task. The situation described in evidence was that the Applicant cannot bend over the basin and that this causes problems.
In respect of food preparation the witness said that the Applicant was independent with simple meals. The microwave was said to require repositioning as it was too low for the Applicant to effectively access. When questioned about these observations and conclusions for many of the tasks outlined the witness confirmed that in the time that was available for the assessment much of the material was gleaned through self reporting in that the Applicant did not actually perform the tasks in front of the OT.
The witness confirmed that the Applicant was independent with medication and financial arrangements. He said that the Applicant receives minor assistance from family predominantly his mother and sister. In respect of friends the witness conveyed his understanding that the Applicant had minimum contact with his friends and that as time went on his ‘circle of friends was reducing.
The witness confirmed that the Applicant’s cognition was sound. His physical abilities were assessed and observed whilst the Applicant used a walking stick. The first report was as a result of initial assessments on 29 May 2024 and 8 July 2024 with the WHODAS (World Health Organisation Disability Assessment) completed on the 8 July 2024 attendance. It was based on a combination of informal discussions with the Applicant, and observations. The Respondent outlined that the results and forms were not annexed to the report providing the total score. In respect of the Functional Independence Measure (FIM) the witness advised that it was performed with a combination of verbal responses to questions and observations.
In respect of the second report conducted on 3 March 2025 the witness advised that the assessment was conducted over 90 minutes. There was an informal discussion with the Applicant comparing aspects of the earlier assessment and asking questions as to how the Applicant was now going. The witness said that the WHODAS and the other assessments were reconducted because the Applicant’s functioning had not changed significantly. When asked how he was initially engaged the witness said that it was a private engagement whereby the Applicant had (as the witness understood) obtained his telephone number from someone else and that he had also been engaged to assist with the housing application of the Applicant.
In re-examination the witness clarified that he understood when engaged for the first assessment that it was to occur in a legal context and that typically he did not send or include his CV with a report, especially as he was not aware that it was to be used in a hearing. In respect of the absence of the notes concerning the medical reports he viewed the witness said that he never submits ‘raw data’. When asked whether within his practice it was usual to make assumptions the witness agrees that it was bit in the context of professional assumptions based on professional observations, the witness said that self reporting is the most commonly used tool. The witness confirmed that he did observe the Applicant use his hands to hold his toothbrush and to write.
The Tribunal questioned the witness at the end of re-examination. The witness clarified for the Tribunal that he did not have the Applicant complete any self-assessment questionnaire during his assessments. In respect of the evidence concerning observing the Applicant writing, the witness clarified that he had the Applicant write his name for him.
Ms J Harper Occupational Therapist evidence
In evidence in chief the witness conformed that she had been commissioned by the respondent to provide an independent medical report in respect of the Applicant’s functioning. She spent three hours on the initial report of 8 July 224 including face to face, and two follow up or supplemental reports of 1 May 2025 and 2 May 2025 which were also before the Tribunal.
The witness confirmed that she did not change her overall opinion in respect of the applicant’s functioning following the further assessment. She advised that the main difference between her report and Mr Semaan’s reports were in the areas of the assistance equipment recommendations for example bed replacement and mobility scooter. The other report of Mr Semaan referred to high cost large items / pieces of equipment which in her opinion would remove the ability of the Applicant to become independent. The witness described this as the ethos of OT in that clinicians should try and assist individuals to remain as independent as they can in as many domains as possible. The witness gave an example of how a lower chair would reduce a person’s ability to stand up independently over time, referred to as ‘decommissioning’ the subject’s independence. The witness indicated that she was a little unclear as to why powered mobility devices had been recommended. The witness noted that the Applicant had no restrictions on his driving licence and had a parking permit to assist in mitigating the impact of his disability.
In respect of the testing that the witness conducted she advised that it consisted of 10-15 minutes per test data capture with a further period of time to compile the score result. The witness noted that when assessing an individual one needs to assess them in a detailed way and ideally they would know their subject’s needs quite well. The witness said that her impression of the Applicant was that he was well groomed and slightly nervous. She conducted general observations of the Applicant around the home, getting on and off the bed, accessing the freezer and moving around the bathroom. The witness said that she witnessed transfers off the toilet with the Applicant able to utilise the door frame to get up and down. Overall the Applicant presented during the assessment with a low mood.
In cross examination the witness was asked about what observations she made of the Applicant using his hands. Her evidence was that she observed the Applicant using his hands, and said that she would not describe them as ‘deformed’ as others had. Whilst there was refence to pain the Applicant was able to adequately open the freezer door and open the door of the microwave oven. The witness observed the Applicant briefly writing with a pen and observed him write his name. The witness said that a follow up of this would be good having the Applicant retrying those things on a good day and a really bad day. In addition, arranging for some seating over or next to the sink to assist with the Applicant being able to brush his teeth for the required time would also be beneficial.
When asked whether the witness was surprised that the Applicant felt exhausted at the end of the assessment the witness said that she was not surprised that he felt fatigued as a result of the rigorous assessment. The witness was asked to what extent if any her assessment was made on assumptions. The witness advised that the first assessment was mainly based on a knowledge of the medical evidence coupled with what she observed and also what is reported by the subject. The witness noted that she had seen the Applicant in his home which was significant for the assessment. When asked if she noticed the general state of the home the witnesses recalled that it was generally clean and there was not significant clutter.
Written Evidence
The main written evidence before the Tribunal relevant to the proceedings was the two OT reports of Mr Semaan and the reports of Ms Harper. As noted above both authors were cross-examined on those reports. The Semaan reports conclude that the following conditions are correlated and subsequently interrelated:
·Psoriatic Arthritis
·Psoriasis
·Fibromyalgia
·Spondylosis of the spine
·Chronic Pain
·Severe Anxiety and Depression Bilateral iliotibial band syndrome
The report opines that ‘suitable and appropriate treatment options have been explored each with little to minimal positive effect’. Reference was made to the report of Dr Alam of 29 July 2024 which referred to the Applicant’s ‘medical conditions, impairments and disabilities are permanent and lifelong and unlikely to be alleviated with further treatment as he has exhausted his treatment options’. Reference is made to a year and a half of treatment having no effect, and that conditions and subsequent impairments are permanent and stable and not likely to be alleviated substantially with further treatment. The author opines in the second report that the Applicant has good and bad days and the bad days are more relevant evidence than the good days and more prevalent and as such (the Applicant) does not have quality of life’.
The Harper reports identify difficulties in undertaking the following tasks:
·Strenuous activity requiring exertion,
·Moderate, heavy or forceful manual handling including lifting, carrying, pushing and pulling,
·Repetitive or sustained use of upper limbs above shoulder height in an outstretched or overhead manner due to increased load in the lumber spine,
·Frequent bending, twisting, jarring or jolting of the lumbar spine,
·Prolonged sitting, standing or walking,
·Frequently traversing rough / uneven ground, inclines or steps,
·Prolonged periods of driving,
·Sustaining activity participation despite experiencing chronic pain,
·Motivation or drive,
·Being in public place or crowded noisy environments.
·Forming and maintaining social relationships.
In respect of communication the report found that the Applicant’s communication was effective. On social interaction the OT observed that the Applicant interacted well with her, was alert and orientated. In respect of learning it was reported that the Applicant demonstrated clear understanding throughout the assessment.
In respect of mobility the report identified a restriction of 35 minutes mobilising in any instance and only on flat surfaces, occasional use of mobility aids such as a single point stick (walking stick), and notes that the Applicant usually limits his walking to 10 minute periods prior to a break. The applicant was observed to be fatigued after 34 minutes of activity. In respect of mobilising. Stairs can be navigated with a developed technique albeit at a slow pace. Whilst the Applicant does not access public transport, he is independent with driving for 15-30 minutes at a time. Lifting and carrying was somewhat limited with 5 kg being too heavy for prolonged period.
The report identifies assistive equipment to aid mobility functioning. At pages 412-414 of the JTB a range of basic assistance equipment is outlined. Items such as installation of a grabrail beside the toilet and in the shower recess, a long handled sponge for washing and similar toe washer, dressing stick and ‘perching stool’, lightweight dustpan and brush shower chair bed pole and some modified kitchen utensils are all noted as appropriate for the Applicant in the report.
The report noted at page 425 of the JTB that the applicant could increase his functional capacity for self care with the use if these items and strategies as well as some modifications to the way in which he does things.
In concluding the report addressed the questions concerning a typical day for the Applicant. This was reported as comprising of: disturbed and broken sleep, waking between 5am and 7am, rest in bed for 5 to 60 minutes before getting out of bed (stated as due to general body stiffness) in morning, have a shower and get dressed, sit on a lounge and watch YouTube videos, attend appointments if and when scheduled, occasionally receive visitors such as his mother and sister, nap throughout the day. He reported not having fixed meal times but snacking throughout the day with nuts, fruit and smoothies as well as reheating in the microwave any meals delivered by family.
Respondent’s Submissions
The Respondent referred to their Statement of Facts Issues and Contentions as being their written submissions which they relied upon. There was no change following the evidence adduced during the hearing. In oral submissions the Respondent referred to slight questions around the Applicant’s credibility in that it was submitted that he did not give specific answers and was said to be vague and evasive at times. Reference was made to evidence whereby the Applicant said that he could not use his hands to cook but then gave evidence that he was able to drive his car without any equipment modifications.
There was also evidence that the Applicant was able to interact with his nephew, his sister and his Barber, and that he did not really engage on the evidence that they all visited him at his home. Reference was also made to the Applicant’s OT who did not test that the Applicant could not do up buttons on clothing, but took his word for it. The Applicant told the OT that he could operate a zipper up and down.
The Respondent noted that the Agency had accepted that the Applicants conditions were permanent. However, in respect of social interaction it was submitted that there is a reluctance by the Applicant to pursue this issue rather than there being evidence of any disability creating an inability to do so.
The Respondent’s main thrust in oral submissions concerned a purported lack of evidence of a substantially reduced functioning across the relevant domains. It was submitted that the reports of Ms Watson did not establish this nor did the reports of Mr Semaan. The Respondent submitted that the OT report of Ms Harper should be preferred over the other evidence. The Respondent submitted that the Semaan report had queries due to some conclusions being reached without actual observations being made.
Applicant’s submissions
In oral submissions the Applicant responded to the Respondent’s reference to a lack of psychiatric medications. They submitted that this was not consistent with how the matters in s 24 (c) of the NDIS Act are assessed. They submitted that the Applicant’s evidence was credible and consistent with his presentation. Significant weight should be given to the Applicant’s own account. Ms Watson said that the Applicant was consistent in his answers to her over time and that he would benefit from support in the area of social interaction.
The Applicant submitted that the purported choice not to engage socially as submitted by the Respondent was because of psychological conditions. It was also submitted that family interactions were not a substitute for social interactions. It was submitted that the Semaan reports and findings should be given significant weight in part because the clinician conducted three separate assessments and Ms Harper only actually saw the Applicant once noting that Ms Harper admitted that an assessment is a ‘snapshot’ and presents difficulties when assessing fluctuating capacity. It was submitted that being able to write one’s name is not indicative of one’s writing ability in any significant way or measure.
The Applicant also submitted through his agent that the ‘typical day’ considered in the assessments was not explained in as much detail in the Harper report as the Semaan report. The Applicant submitted that the Tribunal should prefer that the Applicant’s mobility and overall self are substantially reduced as are his ability to socially interact, and that these findings are all made out in the evidence.
In closing the Applicant submitted that seeing his four year old nephew was not really the equivalent of a social interaction and reiterated that the purported choice not to engage in social interactions and activities did not factor in the debilitating impact of his physical conditions.
Consideration
The Tribunal notes that the Respondent accepts that the Applicant meets disability requirements of (a) a physical impairment resulting from Psoriatic Arthritis, Fibromyalgia, chronic Pain and Lliotibial Band Syndrome and psychosocial impairments of Major Depressive Disorder (MDD) and Anxiety in accordance with s 24 (1) (a) of the NDIS Act.
The Tribunal also notes that the Respondent accepts that in respect of and s 24 (1) (b) and 25 (1) (a) of the NDIS Act the Physical and Psychosocial impairments are likely to be permanent and that they are likely to affect the Applicant’s capacity for social and / or economic participation in accordance with s 24 (1) (d) criteria.
The issue in contest as set out in the evidence above is whether the Applicant has a substantially reduced functional capacity as a result of those impairments, which impact on the activities of communication, learning, social interaction, mobility, self care or self management.
A further issue not conceded is that the Respondent submits that the evidence is insufficient to establish that the Applicant is likely to require NDIS support for his lifetime. In respect of the alternate pathway into the scheme the Respondent submits that the evidence is insufficient to establish that the provision of support now in an early intervention context is likely to benefit the Applicant in the manner outlined in s 25 (b) and 25 (c) of the NDIS Act. An additional matter arising in the application relates to the repealed s 25(3) provision that the Applicant must establish that the NDIS is the best fit for the supports he requires. If the supports are more appropriately provided through another service system including supports provided by informal (non-professional) supports, then the support is not available.
Therefore, whilst accepting that the impairments equating to a disability were both present and permanent, and that they affect the Applicant’s capacity for social and economic participation, they did not accept that the Applicant’s functional capacity was likely to be substantially reduced across any of the six domains. Whilst it resulted in some reduction in functional capacity in those domains, the Respondent maintained that the functional capacity was not substantially reduced in any of the stated activities as a result of the various diagnosis.
The Tribunal notes that the Applicant’s impairments do result in some reduced functional capacity. The issue concerning how the Applicant is able to physically get things done was noted in the evidence. Both OTs recommend that assistive aids and interventions would benefit the Applicant.
As has previously been observed, Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 sets out when an impairment results in substantially reduced functional capacity to undertake relevant activities. The Rule provides that they (the applicant) are unable to participate effectively or completely in the activity (including performing tasks), the person usually requires assistance, or the person is unable to complete the tasks or actions even with assistance.
Self Care / Self Management
Self care is taken to mean – personal care, hygiene, grooming, eating and drinking and health. It also includes how one gets dressed, showers, bathes and goes to the toilet. The OT Mr Semaan reports that the Applicant was engaged in showering independently utilising an outdoor plastic chair and a handheld shower hose. Whilst the report refers to the Applicant needing assistance to stand up from the chair with the wet floor and no grabrails, no explanation was given as to how he is able to shower independently, but a concession being that he does stand up himself and has had had one reported fall. Whilst he can shower independently he avoids showering at times because of the perceived risk.
The Semaan Report refers to the applicant being ‘minimally independent’ with toileting. Reference is made to flow on assistance being required ‘at times’ with repositioning his clothes and support needed to stand up from the toilet. However the Harper report observes the Applicant demonstrating his technique for getting up from the toilet independently as outlined in the evidence above.
In respect of dressing the Semaan report refers to difficulties with dressing and that re: lower limbs at times the Applicant needs assistance to pull up his pants. The Harper report notes some difficulty with cutting toe nails. Ms Harper reports that she observed directly the Applicant dressing and noted a modified slower technique to achieve the outcome. At times alternating between standing and sitting was used. The reports refer to independence with feeding but some assistance for ensuing domestic duties around food including preparation and clean up. The Harper report refers to the Applicant being independent in respect of preparing light meals. Personal grooming is adequate but for pain associated with clenching the toothbrush for cleaning teeth. Both reports refer to independence with finances and medication management.
In regards to self management that predominantly concerns how one manages their life. Whilst it can include planning the activities of daily living it does not focus on a person’s physical ability to carry out those matters. However, in respect to cleaning, which would not ordinarily be considered personal / self care, the Semaan report refers to ‘significant difficulties and extreme inability to complete domestic tasks’. (Page 344 of the bundle). It was reported that the Applicant relies heavily on his sister to complete these domestic tasks, washing, cleaning and some meal preparation, but this occurs rarely or sporadically due to geographic distance and other commitments of family.
As previously observed the deeming provisions of the Rules as clarified in National Disability Insurance Agency v Foster [2023] FCAFC 11 clarifies that the provision that an ability to undertake a single task effectively or completely does not mean that the provision applies to the entire activity to be assessed. Both reports to differing degrees refer to the Applicant completing tasks with some difficulty. In respect of the domain of cleaning (self care / self management) this evidence in the Tribunal’s view demonstrates that the Applicant can still participate in the activity of cleaning, albeit with some difficulty but he operates at a reduced pace. There was no evidence that the Applicant cannot attend to other aspects of self management for an adult. Whilst he receives some informal support with his sister in respect of fuelling the motor vehicle and arranging registration requirements, he deals himself with banks and Centrelink and is involved to some extent assisted by his sister, in securing the current lease and a potential future move. Ms Harper observed self reliance in financial management, managing predominantly his life affairs and organising medical and allied health appointments and treatments.
Whilst the disabilities have some impact on the applicant’s abilities, these impacts do not substantially reduce the Applicant’s functionality in this area.
Mobility
In respect of mobility Ms Harper observed the Applicant to mobilise in the home safely and independently. Transfers were completed successfully and the use of door frame in respect of toilet transfers and using a modified technique utilising his arm for slower paced bed transfers completed independently.
I note that the NDIS Guidelines refer to when assessing mobility it concerns how one moves around their home and accesses the community. Whilst the Applicant has some limitations these manifest in the slower performance of tasks. He is more cautious understandably due to a concern about falls risk. He has techniques for getting out of a chair, up from the toilet and into and out of bed.
The Applicant is physically able to leave home independently and mobilise in the community. He is able to drive himself to the shops in his car. He has a technique for getting into and out of the car. Whilst he cannot drive long distances due to pain associated with remaining seated in the driving position for lengthy periods, the evidence is that he can drive for up to 30 minutes.
In respect of walking distance it is accepted that the physical disabilities reduce the Applicant’s ability to walk long distances without a break or for long periods. However Ms Harper observed the Applicant to walk for 35 minutes. He ingresses and egresses in the community without any significant aids or support, only using a single point walking stick on occasions.
The Harper report observes that the Applicant’s preference is not to use a mobility aid (including the walking stick) in the community. Mr Semaan refers in his report to the physical limitations on mobility and how extended periods create pain for the Applicant, in part due to muscle weakness in his legs. That report looks to assisted technology such as powered mobility devices. Whilst these might well assist the Applicant, his mobility is being considered in respect of access to the scheme not an assessment of a participant in resect of supports that are reasonable and necessary supports that are value for money. The applicant by utilising a motor vehicle would presumably not be required to walk long distances away from home in any event. I note that he possesses a Disability Parking Permit. In contrast to the subsequent Semaan report the Harper report response to targeted questions states that the Applicant was able to mobiles for 35 minutes.
Whilst the disabilities have some impact on the applicant’s abilities, these impacts do not substantially reduce the Applicant’s functionality in this area.
Learning
Both reports conclude that there is no cognitive impairment with the Semaan report referring to sound cognition with no apparent concerns with reasoning, logic or problem solving. The Harper report concludes that whilst pain impacts on short term memory and concentration, the practical impacts are minimal and could be overcome with scheduling significantly complex atsks on one of the Applicant’s better or ‘good’ days.
Whilst the disabilities have some impact on the applicant’s abilities, these impacts do not substantially reduce the Applicant’s functionality in this area.
Social Interaction
The NDIS Guidelines refer to social interaction as including the making and keeping of friends, interacting with the community, and or the individual’s behaviours response to feelings and emotions when in a social context.
The Respondent emphasised that within the guidelines the criteria focus on social skills rather than opportunities or abilities to access the community. In that regard they submitted that the majority of the evidence did not assist the Applicant. A person is not required or expected to be able to interact with the whole community but sections of the community.
The Semaan report refers to the Applicant’s former occupation and marriage prior to the deterioration of his physical condition. In the first report under the WHODAS assessment the Applicant scored 7 in respect of social interaction and was considered independent in that domain. (Bundel page 303).
The Harper report noted that the Applicant has friends but has become socially withdrawn with his physical conditions such that he declines invitations based on his mobility restrictions and also financial issues. There was evidence of the Applicant having telephone contact and a close relationship with his family seeing them on average once a week or so for assistance with shopping and delivery of meals as well as appointments. The OT in her report did not identify any specific behavioural issues or mental health diagnosis that impacts on the Applicant’s ability to effectively interact socially with others. Whilst the Applicant described himself to Ms Harper as socially withdrawn, and having nil regular social activities in his week, he noted to her that his friends would ask him to join them in social activities to which he regularly declined.
The Applicant noted to Ms Harper that his friends are busy with their own families (being the stated reason that they do not assist with informal support). Ms Harper opines that the social isolation is predominantly down to mobility limitations and psychological symptoms. Ms Harper observed that when in the community there appear to be no impediments to the Applicant interacting with other persons if required.
The Semaan report notes in respect of community access that the Applicant enjoys the concept of community participation but perceives the concept as hard and impossible to perform due to his propensity to become easily fatigued.
I note that there is limited evidence of any behavioural issues leading to the Applicant’s inability to interact with others. Whilst he may be apprehensive and find the situations challenging due to his other limitations, that does not equate to substantially reduced functioning. Even in his statement of position dated 2 May 2025 the Applicant submits that his social limitations do not arise occasionally or relate to specific situations, but rather that they are persistent, treatment resistant and central to his prevailing circumstances.
Whilst there is evidence of the cessation of employment and subsequent breakdown of marriage as a result of the Applicant’s diagnosis and progression, little other evidence is put forward in respect of the Applicant’s pre-injury life. It is inferred that his relationship with friends was typical of a married person of that age working full time. At issue is whether the Applicant can interact socially in order to engage in activities of daily living and lead a meaningful and to the greatest extent possible, a life in a manner of his own choosing.
There is limited evidence of any communication or behavioural deficits that prevent the applicant engaging socially when he needs to. Whilst the Tribunal accepts that each year the Applicant finds it harder and harder to maintain friendships and engage socially because of his increasing level of physical and psychological disability, in my view that does not equate to substantially reduced functioning. This is because if the applicant was motivated to respond to the overtures of his friends, on the available evidence he would make the necessary effort and adjustments. I note in making this observation that only one of the s 24 (1) (c ) criteria need to be enlivened.
The Applicant is able to interact with persons over the telephone, visitors to his home, and persons in the community. He drives himself to retail premises to shop and is able to do these things without any formal support but modified technique. Whilst he referred to his sister assisting with a number of matters in this domain, including arranging for registration inspection for the motor vehicle, there was no evidence that the Applicant could not discharge these tasks and activities himself it required.
Whilst the disabilities have some impact on the applicant’s abilities, these impacts do not substantially reduce the Applicant’s functionality in this area.
Communication
Communication refers to how someone speaks, writes or uses some other methods (gestures, sign language or similar methods) to express themselves. Both the Semaan report and the Harper report identify that the Applicant communicates orally without assistance. Whilst he often avoids communicating, that is more related to avoiding people.
There was no evidence of any practical issue preventing the Applicant’s full and appropriate communication. As noted during the hearing the Applicant was fluent and articulate in his oral testimony. He is able to talk on the telephone and speak without impediment.
Whilst the Applicant’s disabilities have some impact on his ability to communicate (especially in writing), the evidence as outlined in detail above demonstrates that the applicant’s abilities in this area do not equate to a substantially reduced functionality in this area.
Consideration of sections 24 (2) and (3)
Whilst the disabilities impact on the applicant’s abilities, these impacts do not substantially reduce the Applicant’s functionality in any of the listed six areas.
Section 24 is part of the conjunctive suite whereby if any matter under s 24 (1) is successfully discharged, in that in one or more of the six areas it were found on the evidence to substantially reduce a prospective participant’s functional capacity to undertake the specific activity or activities, then the remaining subsections must also be enlivened to gain access to the scheme.
Because of the position that no impairment has sufficiently traversed s 24 (1) (c) concerning substantially reduced functional capacity, in the six domains, the Tribunal deals with the remaining s 24 provisions in less detail.
Section 24 (1) (d) concerning the impairment affecting the person’s capacity for social or economic participation and (e) the person is likely to require NDIS support for the rest of their lifetime are not enlivened or discharged in any positive manner if subsection (c ) is not adequately traversed. However, I do address them for completeness.
The Respondent submitted that their position is that if a proposed participant is unable to satisfactorily traverse the s 24 (1) (c ) substantially reduced functional capacity criteria, then the position is that they are unable to meet the criteria in s 24 (1) (e). I agree with that submission. If an Applicant is not entitled to NDIS supports because they fail to traverse s 24 (1) (c ), then the question becomes moot in practice but also on a reading of the Section. As they cannot get NDIS support the argument becomes that they are therefore unable to require NDIS supports as they are not eligible. Only if they were eligible would they be able to assessed as to how long the required supports might be necessary. The ability to require the supports turns on access to the supports.
However in respect of s 24 (1) (d) there is a different approach in play and the decision maker need only consider once their conceded impairments are met under s 24 (1) (a) and (b), as is the case with the Applicant, then passing over subsection (c) to (d) the language is of a much lower threshold. In the current matter it appears clear in the evidence that the accepted impairments affect the Applicant’s capacity for social or economic participation.
The Applicant is unable to work in his former full-time role or potentially any full time role. Whether he will eventually be able to do limited hours of seated work not requiring dexterity remains to be seen in the future. The current circumstances clearly affect the applicant’s economic participation. He is a person who on his oral evidence at hearing qualified in 2024 for the Disability Support Pension. This would seem to establish that the Applicant meets that criteria. Whilst there was evidence concerning social participation as outlined above in the consideration of the Applicant’s reduced functioning, it is clear that his impairments affect his ability to engage in social participation. I find that s 24 (1) (d) criteria are met.
However, because of the matters that I have outlined at [151] above, this finding alone will not assist the Applicant in gaining access to the scheme for the reasons that I have already set out.
Early Intervention requirements s 25.
In respect of s 25 (1) (a) the Tribunal accepts that the Applicant’s impairments are permanent and meet that criteria. However in respect of s 25 (1) (b) there is little evidence to indicate that early intervention will reduce the Applicant’s need for future support arising from this disability. The only areas touched upon in the evidence mainly concerns the acquisition of assistive technology or aids. As the Harper report outlines, these are not significant imposts and, in some ways, can be accessed through alternate allied health support avenues or supplemented by private funding. The Semaan report on the other hand specifies significant technological and mechanical interventions which are not always covered by NDIS plans even for participants with significant plans.
The Respondent submitted that due to the Applicant’s longstanding nature of the impairments, in that they have been present for close to a decade, any required supports would not be considered early intervention supports designed to reduce the Applicant’s future need for support. The Harper Report refers at page 415 of the Tender Bundle to community-based supports and services for the Applicant. At page 425 Ms Harper addresses whether recommended supports or any other supports will reduce the Applicant’s need for future disability specific support. The clinician lists assistive equipment and well as practices and arrangements such as prepared meals as being of assistance to reducing future support.
The Tribunal notes that the available evidence from the Applicant does not address these criteria and provide a position on whether the provision of supports now would reduce the Applicant’s need for continued support in the future. Nothing in the statement of position dated 2 May 2025 addresses this issue.
In this regard the Tribunal finds that the s 25 criteria are not met on the available evidence.
The substantive issue concerns whether any of the permanent impairments resulted in the Applicant having substantially reduced functioning in those areas across any of the six stated domains. In the view of the Tribunal sufficient material was before it to determine whether the Applicant meets the necessary requirements of s 24 (1) (a) – (e) inclusive having regard to his evidence and material and that of the Respondent and both party’s witnesses.
In addition I am satisfied that through the hearing and prehearing process, both parties had a reasonable opportunity to be heard.
Conclusion
In the current application, for the reasons outlined above the Tribunal is not satisfied that the Applicant meets the s 24 or section 25 criteria under the NDIS Act. In that regard the Applicant does not satisfy the requirements of a person to become a participant in the NDIS.
The Tribunal therefore affirms the decision of the Respondent dated 26 September 2023 in accordance with s 105 (1) (a) of the Administrative Review Tribunal Act 2024.
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