Camilleri and National Disability Insurance Agency (NDIS)

[2025] ARTA 11

Camilleri and National Disability Insurance Agency (NDIS) [2025] ARTA 11 (16 January 2025)

Applicant/s:  Adam Camilleri

Respondent:  National Disability Insurance Agency

Tribunal Number:                2021/1966

Tribunal:General Member S. Fenwick

Place:Melbourne

Date:16 January 2025

Decision:The Tribunal affirms the decision under review.

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

General Member S. Fenwick

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – mental health conditions – specific learning disorder – whether impairments result in substantially reduced functional capacity to undertake one or more specific activities – decision 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)

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

Cases

Mulligan v National Disability Insurance Agency [2015] FCA 544

National Disability Insurance Agency v Davis [2022] FCA 1002

Statement of Reasons

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (‘Consequential and Transitional Provisions No. 1’) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

BACKGROUND

1. Mr Camilleri has applied for review of a decision of a delegate of the Chief Executive Officer of the Respondent agency, dated 22 June 2020. In this internal review decision, as in the prior decision taken by the agency, it was determined that Mr Camilleri did not meet the access criteria to become a participant in the National Disability Insurance Scheme (NDIS).

2. Mr Camilleri is a 43-year-old man who was initially represented in this matter by his mother, Mrs Danni Camilleri. He has been seeking access to the NDIS since at least some time in 2017, and has received multiple refusals from the agency. When applying for review of the June 2020 decision, Mrs Camilleri noted that her son suffers from anxiety and depression, and that she is finding it hard to care for him because of her own health difficulties. She identified the basis for NDIS support as issues with self-care, communication, and mobility, and stated that her son needs to engage in more social activities with his peers.

3. In the decision under review, the agency accepted that Mr Camilleri had permanent impairments in the form of anxiety and depression, and specific learning disability. The delegate also accepted that the Applicant lives with significant restrictions in day-to-day activities due to his mental health condition, however, did not consider such restrictions solely attributable to this condition. The delegate also considered that Mr Camilleri’s baseline intellectual function does not result in substantial reduction in functional capacity. Further, the delegate considered that the early intervention criteria were met, but that the NDIS is not the most appropriate system of support.

4. The Applicant made various submissions prior to the appointment of legal representatives. He then lodged a Statement of Facts, Issues and Contentions, dated 23 August 2023 (ASFIC). Various additional reports and statements were lodged as part of a consolidated Hearing Bundle (HB), and an Annex (HBA). The Respondent lodged documents pursuant to s 37 of the Administrative Appeal Tribunal Act 1975 (T), now s 23 of the Administrative Review Tribunal Act 2024, a SFIC, dated 30 September 2022 (RSFIC), and a Supplementary RSFIC, dated 7 September 2023. Additional medical reports and extracts from summons material were lodged with the HB.

5. Both Mr Camilleri and his mother gave evidence at the hearing. The Applicant also called on Dr Naveen Thomas, psychiatrist, Dr Leonie Simpson, clinical neuropsychologist, and Mr Christopher Zeigenbein, psychologist. The Respondent called Ms Phi-Van Houston, occupational therapist, and Dr Peter Ashkar, neuropsychiatrist.

6. After conclusion of the hearing, the Applicant lodged closing submissions, dated 18 October 2024 (ACS). The Respondent lodged closing submissions dated 25 September 2024 (RCS), and a Reply dated 1 November 2024 (Reply).

7. This matter has a protracted procedural history. Following an initial extension of time application in May 2021, there were subsequently three case conferences held across 2021 and 2022. At around the time the matter was first listed for hearing in March 2023 the Applicant sought to obtain legal advice, and the matter was therefore adjourned. A hearing schedule was agreed between the parties in mid-2023, and it was again listed for hearing in May 2024. Unavailability of Mr Camilleri’s pro-bono counsel led to a second adjournment and re-listing for August 2024.

8. A combination of issues arising at the hearing led to the need for written submissions. This was due in part to the complexity of expert opinion evidence from Dr Thomas, leading the parties to wish to consult transcript. Mr Camilleri also experienced an emotional reaction to some questions during cross-examination, which resulted in him withdrawing from giving further evidence. I also note that conclusion of this matter intersected with both the commencement of the Administrative Review Tribunal, and amendments to NDIS legislation.

9. Finally, I became aware during the hearing that the Tribunal was in possession of copies of school reports provided by the Applicant’s mother, but that neither of the parties’ representatives had been given this material. This material appears to have been provided in the past to the Respondent’s representative at the time. This material was of some potential significance due to evidence given in respect of Mr Camilleri’s claim to have specific learning disability. Ultimately, no submissions were made by the parties about the material and I have not sought to rely upon it.

   LEGISLATION

10. Access criteria for participation in the NDIS are found in Part 1 of the National Disability Insurance Scheme Act 2013 (the Act). Relevantly, a person must meet the disability requirements provided for in s 24 of the Act. Certain amendments were made to this provision, and to the s 25 early intervention requirements, in the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024. The amending legislation provides, however, that this matter continue to be conducted in accordance with the legislation and rules as they were prior to the amendments.

11. Section 24 of the Act provides, briefly, that the following cumulative criteria must be satisfied:

    (a)a person must have a disability attributable to an impairment (s 24 (1)(a));

    (b)that is or is likely to be permanent (s 24(1)(b));

    (c)that results in substantially reduced functional capacity (s 24(1)(c)), considered in respect of one or more of the following activities – communication, social interaction, learning, mobility, self-care, and self-management;

    (d)that affects their capacity for social or economic participation (s 24(1)(d)); and

    (e)the person is likely to need NDIS support for their lifetime (s 24(1)(e)).

12. Meeting the disability requirements is addressed in more detail in the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Rules). Relevantly, they provide as follows (in summary):

    (a)an impairment is, or is likely to be permanent only if there are no known, available, and appropriate evidence-based treatments that would be likely to remedy it (r 5.4);

    (b)medical treatment and review may be required in order to determine that an impairment is, or is likely to be permanent (r 5.6);

    (c)substantially reduced functional capacity arises where it results in: the inability to participate effectively or completely in the activity, or its tasks or actions; assistance from other persons is usually required to participate in the activity;  or, inability to participate in the activity even with the help of technology, equipment, home modifications, or assistance from another person (r 5.8).

13. Section 25 of the Act provides that a person is considered to meet the early intervention requirements if they have a permanent impairment and the CEO of the agency is satisfied that the provision of supports is (among other grounds) likely to reduce the person’s future needs for support, and will mitigate or alleviate their impairment, or prevent its deterioration.

    ISSUES

14. The issues for determination are whether Mr Camilleri may become a participant of the NDIS either because he satisfies the disability requirements under s 24 of the Act, or alternatively, is eligible for early intervention under s 25.

    DISABILITY REQUIREMENTS

    Disability

15. The Applicant submits that Mr Camilleri has conditions of anxiety and depression which satisfy s 24(1)(a) of the Act (ASFIC [17]), a proposition with which the Respondent agrees (RCS [4]).

16. In Mr Camilleri’s Evidence of psychosocial disability form, dated 10 April 2021 (T1K), Dr Thomas declares that he has been treating the Applicant since February 2016. Dr Thomas provides diagnoses, relevantly, of major depression and anxiety, both in existence since 2016. Dr Thomas provides an extensive list of medications, four of which are described as non-effective, and four described as partially effective. He also states that Mr Camilleri remains on anti-depressant medication and there were ‘multiple trials with inadequate response’. He declares the conditions permanent.

17. On this basis of this material, supported as it is by the parties’ submissions, I find that the Applicant satisfies s 24(1)(a) in respect of his mental health conditions.

18. The Applicant contends that the condition of specific learning disorder also satisfies this initial legislative criterion (ASFIC [19]). The Respondent submits that there is insufficient evidence to allow this finding, but contends in the alternative that should this finding be made, the impairment is permanent (RCS [5]).

19. In support of the Applicant’s position on this disability, reliance is placed on the findings of a neuropsychological report prepared by the School of Psychological Science at La Trobe University, dated 24 September 2014 (ACS [26], T3). Support is also said to be found in the  written report of Dr Simpson (HB24), and in the report of Mr Ziegenbein (HB25).

20. In contrast, the Respondent contends that limited weight be put on the La Trobe report (RCS [5]-[6]). It also contends that both Dr Simpson and Dr Ashkar were unable to validate Mr Camilleri’s level of cognitive ability, but notes their opinion is divided over the La Trobe findings (RCS [7]). The Respondent contends, fundamentally, that Dr Ashkar’s evidence overall be preferred, and that the Tribunal should be unable to positively satisfy itself about this legislative criterion (RCS [9], [29]).

21. In his written statement (HBA1) Mr Camilleri states that he had learning disabilities and issues with short term memory. He also states that he completed schooling and university with a lot of help from his mother. The Applicant also relates being let go from one job due to unspecified mistakes, and to difficulty with advancing in vocational courses.

22. Mrs Camilleri stated in evidence that the Applicant was always a bit behind, and that teachers did not pick up on his disability. She also stated that she completed his schooling and university assessments for him. Mrs Camilleri stated that he was described in reports as ‘lazy’ and ‘inattentive’ but that she thinks he is dyslexic.

23. In Mr Camilleri’s 2021 Access Request Form (T1E), his general practitioner Dr Musku declares that the Applicant struggles and requires assistance with learning. In an NDIS Application Form dated 29 June 2021 (HB21), Mr Zeigenbein also declares that Mr Camilleri requires assistance with learning. I note in the form completed by Dr Thomas (T1K), that he recorded ‘N/A’ with respect to learning impairment.

24. The La Trobe report (T3) records that Mr Camilleri approached the Psychology Clinic ‘due to noticeable gaps in his learning’. It also notes that he reported issues at school with reading and spelling, and later problems in employment. A wide range of tests were administered by the clinic which found performance at age-expected range across a number of domains. The report describes main concerns as being with aspects of literacy, and some additional below-age performance. It states that ‘in the context of intact general intellectual functioning, this suggests a specific learning disability in reading, spelling and mathematics’.

25. A Centrelink Job Capacity Assessment Report from March 2016 is included in the materials, and one of the medical conditions considered is learning disability (T4). It refers to a report of a Dr Wilson, neuropsychologist, an author of the La Trobe report from 2014. The assessors state that Mr Camilleri was recommended to approach employment services to seek roles that rely more on practical skills than literacy. The assessors consider Mr Camilleri’s condition ‘fully diagnosed treated and stabilised’ because there is no expectation of functional improvement.

26. Dr Ashkar conducted an assessment of Mr Camilleri in April 2022 at the Respondent’s request. In his report (HB28), Dr Ashkar records that he was given an account of learning and social difficulties at school, and that the Applicant completed both Year 12 and a BA in Interior Design, the latter with assistance from his mother and with special consideration. Mr Camilleri also reported being fired from jobs due to mistakes. Dr Ashkar considered that there was no evidence of slowed thinking during the consultation, but that Mr Camilleri showed evidence of unusual behaviour during the administration of various tests. Further, he failed five out of six tests of cognitive effort. This, according to Dr Ashkar, showed strong evidence of malingering, and the test results were invalid. He concludes that this outcome, which includes his consideration of the 2014 assessment, indicates no evidence of cognitive impairment.

27. Dr Simpson completed an assessment of Mr Camilleri in May 2023 because of the Applicant’s concerns that he may have ADHD. In her report (HB24), matters of concern recorded include problems with verbal communication and written information. Dr Simpson administered a number of neuropsychological tests, but performance was lower than reported in 2014, and with invalid outcomes on performance validity testing she was unable to interpret the results. Dr Simpson concludes that potential explanations include malingering (worst case), and subconscious underperformance, and she defers to the 2014 assessment.

28. Mr Zeigenbein practices at the Gut Centre, and reported in July 2023 that Mr Camilleri was referred to him in 2020 in respect of certain gastrointestinal symptoms (HB25). While he considered that the Applicant presented with symptoms consistent with learning or memory disorder, Mr Zeigenbein acknowledges that diagnosis should be made by an appropriate specialist.

29. Some salient points arose from cross-examination of Dr Simpson. I understood that she disagreed with Dr Ashkar’s apparent conclusion that no finding could be made as to cognitive impairment. In her view, this only applied to the contemporary results from their respective testing. Despite prompting, Dr Simpson did not make any particular concession about the weight or value of the 2014 results.

30. In response to questions from myself, Dr Simpson described the La Trobe report as ‘a lot less contentious’ and largely consistent with the personal history given by Mr Camilleri. She described it as finding lots of results consistent with his age, and also lots of areas of impairment. Dr Simpson stated that the Applicant has some good cognitive skills, but that issues such as problems with attention, self-doubt and emotional regulation combine to cause him challenges.

31. In re-examination, Dr Simpson described the La Trobe clinic as well-regarded and pointed to the supervision role of a clinical neuropsychologist in the evaluation undertaken. She also explained that specific learning disability is a diagnosis under the DSM, and indicative if difficulty with academic skills. This was consistent with the reports of Mr Camilleri and his mother about family assisting with coursework and his difficulty writing reports.

32. Some reference was made in Dr Ashkar’s evidence to independent guidelines concerning evaluation of test performance, but he essentially continued to support his conclusion of malingering. He stated unconscious underperformance was statistically unlikely. In cross-examination, Dr Ashkar confirmed that he had been provided Dr Thomas’ report with its reference to the Applicant’s history of bullying at school and dyslexia, but stated that the testing did not rely on reading skill. I understood Dr Ashkar to consider that any symptoms of this condition were not present, or not pertinent, to his assessment nor to effort testing. He reiterated his strong preference for ensuring the validity of any testing, but I also understood Dr Ashkar to accept that the La Trobe results might be a reliable indicator of dyslexia.

33. I note that the Applicant’s final contentions place emphasis on certain guidelines with respect to assessment of effort, the absence of alternative motive for Mr Camilleri to under-perform, and his personal and family history of reading and writing difficulties (ACS [29]).

34. Neither disability nor impairment are defined in the Act. The focus of s 24 of the Act is on the concept of impairment, and this has been described as involving loss or damage to a physical, sensory or mental function (Mulligan v National Disability Insurance Agency [2015] FCA 544, (Mulligan) [51]). It was also said there that there should be no arbitrary limits on access to the NDIS, and that there was no test of a particular level of seriousness of impairment [56]. Equally, there must be a minimum level of viable medical or clinical evidence upon which findings can be made.

35. In this case, there are two primary sources of evidence about Mr Camilleri’s specific learning disability. The first is the somewhat anecdotal written and oral evidence of the Applicant and his mother. This alone is rather scant. The second is the La Trobe report which was produced when Mr Camilleri was an adult. I consider the value of this report alone rather limited. This is because of the varying range of test results, including what might be understood as average results. It is also because the terms of the primary relevant conclusion itself is equivocal. It is far from a conclusive assessment or diagnosis.

36. For these reasons, Dr Simpson’s mild endorsement of the 2014 findings is of little or no value. Further, and more importantly, Mr Camilleri’s performance – whatever its explanation – in two recent assessments means that there is simply no reliable contemporary account of Mr Camilleri’s cognitive ability.

37. Accordingly, I am not satisfied that I have sufficient probative evidence upon which to determine that Mr Camilleri satisfies s 24(1)(a) in respect of this condition. Accordingly, it merits not further attention in this matter.

    Permanent impairment

38. For the Applicant, it is submitted that based on the length of time Mr Camilleri has been treated by Dr Thomas for his mental health issues, the evidence as to success or response to treatment, and Dr Thomas’ opinion about the persistence of the condition, that this condition should be considered permanent (ASFIC [34]-[38]).

1. In closing submissions, it was contended that Mr Camilleri’s presentation at the hearing was a demonstration of the extent of the Applicant’s issues with trust, and emotional regulation (ACS [12]-[13]). A substantial number of references are made to Dr Thomas’ various reports, and it is contended that his evidence demonstrates he is  treating Mr Camilleri for anxiety and depression and considers it permanent (ACS [14]-[17]). It is also contended that Mr Ziegenbein considers the condition of anxiety and depression to be permanent (ACS [17], [20]).

2. The Respondent makes a number of arguments in support of its submission that the condition of anxiety and depression is not permanent (Supplementary SFIC [20]). These include: equivocal material from Dr Thomas; lack of trial and evaluation of a range of supports; and, Dr Ashkar’s view that there is room for improvement (Supplementary SFIC [21]-[26]).

3. In its closing submissions, the Respondent points to a series of purported weaknesses in the evidence of Dr Thomas (RCS [33]). After referring to the evidence of Mr Zeigenbein and the Applicant, it is contended, as I apprehend the submission, that there should be more collaboration between this treating team (RCS [34]-[38]). It is further contended that Dr Thomas’ evidence indicates three more possible forms of treatment are known, available and appropriate, and should therefore be provided and evaluated in order to determine permanency (RCS [39]-[40]).

4. The written material from Dr Thomas embraces a very substantial number of reports and updates, which are identified in the Applicant’s closing submissions (ACS [14]). Mr Camilleri first presented on referral to Dr Thomas in early 2016 reporting an approximately nine-month history of depressive symptoms following his dismissal from a job in an abrupt termination associated with harassment (HB30, 388). Mr Camilleri was already taking anti-depressant medication at this point, and Dr Thomas made adjustments to the prescription. Dr Thomas subsequently  made a formal diagnosis of recurrent depressive disorder, moderate depression with somatic symptoms, and adjustment disorder with a persistent depressive reaction (HB30, 365).

5. Most recently, Dr Thomas provided a report to the Applicant for the purposes of the hearing, dated 4 May 2023 (HB23). He confirms the current diagnoses as recurrent depressive disorder and moderate depression with somatic symptoms. Dr Thomas notes that he has treated Mr Camilleri for depression and anxiety over eight years. He states that ‘despite multiple trials of anti-depressant medications, the depressive symptoms have remained moderately severe, and he has not had significant response to treatment’ (HB23, 262). Dr Thomas states in his opinion that the symptoms are likely to persist for an extended period.

6. A particularly relevant passage of evidence from Dr Thomas was that addressing the question of whether Mr Camilleri had experienced any remission of symptoms. After some clarification, it became evident that Dr Thomas considered the Applicant had experienced two periods of partial remission. One was in 2017 and the other was in 2019, subsequently deteriorating during COVID. I understood the first period of remission to have coincided with the use of an off-PBS antidepressant which Mr Camilleri could not continue with due to its cost.

7. Dr Thomas went on to give clear evidence that after two trials of different medications Mr Camilleri could be considered as presenting with treatment resistant depression. Further evidence about the relevance of Mr Camilleri’s personality and/or his anxiety was unfortunately somewhat less clear. However, he confirmed that his focus in treatment was upon the Applicant’s depressive condition.

8. Evidence given by Dr Thomas about other potential forms of treatment arose from a passage in which it had been put to him that Mr Camilleri was reluctant to undertake further options. Dr Thomas responded that this was due to the Applicant’s feelings of hopelessness at undertaking further treatment measures. Here Dr Thomas gave evidence about three additional treatment options: transcranial magnetic stimulation (TMS); intranasal ketamine; and electroshock treatment (ECT). A fourth in his opinion was ongoing psychological treatment. TMS was described as suitable for mild-to-moderate depression. Ketamine injection was described as very expensive and in the trial stage. ECT was described as a treatment for severe depression with psychotic symptoms.

9. Dr Thomas stated that he understood that the Applicant was already receiving support in the form of cognitive behavioural therapy from Mr Zeigenbein, although he was not in receipt of reports. He considered this adequate. Indeed, he stated that clinical psychological support for gut issues related to Mr Camilleri’s anxiety was an appropriate holistic treatment. He acknowledged that it would be helpful to have direct reports about this treatment.

10. In re-examination Dr Thomas described the payments for transcranial magnetic stimulation as between $120 and $145 per session for a required 30-35 sessions. He restated his opinions that he could see no improvement in Mr Camilleri’s condition for many years, against the background of no improvement for eight years.

11. In his report dated 18 July 2023 (HB25), Mr Zeigenbein states that Mr Camilleri was referred to him at The Gut Centre under a mental health care plan and in relation to a range of gastrointestinal symptoms. Anxiety and depression were among the factors stated in the referral, and Mr Zeigenbein describes Mr Camilleri as presenting congruent with his diagnosed conditions. The Applicant was first referred on 14 February 2020, and this report goes on to deal with a functional impairment assessment.

12. Mr Zeigenbein stated in evidence that he had conducted some 34 sessions with Mr Camilleri and that he would ordinarily like to be in touch with his treating psychiatrist. He stated his primary focus was to reduce gastrointestinal distress, but that there is no underlying pathology to the Applicant’s symptoms.

13. The issue of the permanence of an impairment and the availability of treatment likely to remedy it were central to the decision of Mortimer CJ, then Justice Mortimer, in National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis). Her Honour decided there, that permanent meant ‘enduring’, which I take to mean lasting, and that this was to be applied to the impairment, not any underlying condition [85]-[86]. Her Honour decided, further, that ‘remedy’ in r 5.4 should be understood as more than relieve or improve [136].

14. My concern with the Respondent’s contentions about this issue are that they are based upon a very slim body of evidence. In any other jurisdiction in this Tribunal in which expert evidence is given by a psychiatrist in respect of a mental health condition, unchallenged evidence that a condition is treatment resistant after eight years would be sufficient to base a finding that it is a permanent condition.

15. Here, the Respondent puts forward the contention that existence of three potential forms of treatment, and greater communication with a gut specialist, form the basis for a finding that there are known, available and appropriate treatments. The issue here is that Dr Thomas identified additional treatment options almost in passing. He expressed overall satisfaction a fourth, being ongoing psychological treatment. He identified one as very expensive and in trial phase. Another was not treatment he associated with the diagnosed condition. One only was referred to as relevant to Mr Camilleri’s condition.

16. This aside, and more importantly, Dr Thomas gave no evidence that any of these treatment options were appropriate. Furthermore, no evidence was adduced by the Respondent that any other treatment approach was appropriate. The reasoning overall in Davis reinforces that the rules are an elaboration upon the language of the statute. I do not consider that the further conditions identified in the rules have been made out. In any event, I consider Dr Thomas’ uncontested finding a sufficient basis upon which to determine that Mr Camilleri’s mental health condition is permanent, in the sense intended by the Act.

    Functional capacity

17. The Applicant submits that he has substantially reduced functional capacity in communication, learning and self-care (ASFIC [41]). Closing submissions also address social interaction and self-management (ACS [31]).

18. The Respondent addresses in its submissions, principally, the areas of communication, social interaction, learning, and self-management (RCS [41]-[42]). It is further contended that the report of Ms Houston (HB29) is the most comprehensive assessment of Mr Camilleri’s functional capacity, and does not support a finding of substantially reduced functional capacity in any domain (RCS [44]).

    Communication

19. The Applicant’s contentions here focus upon Mr Camilleri’s history of difficulty with reading and writing, and the ensuing or associated anxiety (ACS [31(a)]). The Respondent contends that any issues with written communication can be addressed through technology solutions (RCS [51]). It also contends that Mr Camilleri’s verbal communication does not meet the threshold of impairment (RCS [56]).

20. In his statement (HBA1), Mr Camilleri states that he has short term memory impairment and dyslexia [3]. He refers to a series of personal and health issues from childhood, including being bullied at school [4]-[6]. In addition to his separation from employment, Mr Camilleri refers to having difficulty reading emails, and that he does no read or write for pleasure [8]-[9]. He notes also that he is in receipt of the Disability Support Pension [15].

21. In his evidence, the Applicant described using his phone to communicate, including using text in a variety of applications. He stated that the voice-to-text support is not always accurate. Mr Camilleri stated that his mother helps him a lot with composing emails. He described having difficulty with long words and the past tense. I understood him to say that his verbal skills were being addressed in therapy.

22. Mrs Camilleri stated in evidence that the Applicant sometimes panics when reading. I understood her to say that he is capable to deal with texts and emails, but needs help with more important communications.

23. I note that Mr Ziegenbein reports that he considers Mr Camilleri’s diagnosed conditions to affect his verbal and written communication, and he experiences stuttering, forgetfulness and information overload (HB25, 273).

24. In her report, Ms Houston states that she observed no verbal communication difficulties during her assessment (HB29, 307). She also refers here to Mr Camilleri’s reported difficulties with spelling and longstanding history of problems with literacy and numeracy, noting that speech-to-text and text-to-speech applications and auto-correction allow such barriers to be overcome (HB25, 309-310).

25. I consider that the Respondent is correct to argue that the legislation sets a relatively high threshold of impairment. Substantially reduced functional capacity means a considerable deterioration in effectiveness must be identifiable upon the evidence, indeed to the point of inability to undertake or complete a specified activity without assistance.

26. I do consider the Respondent’s contentions about assistive technology to be somewhat misplaced. As I read the Rules, a person may reach the threshold of substantially reduced functional capacity when they require technology to allow them to participate effectively, or completely, in an activity. For this reason, r 5.8 has been described as a deeming provision, mandatorily including people who meet one of the specified criteria in the category of persons with substantially reduced functional capacity (Mulligan [66]).

27. In any event, the evidence before me does not support such a finding with respect to Mr Camilleri’s verbal or written communication. Not only is the evidence with respect to technical assistance quite limited, I consider that he is able to communicate effectively without assistance.

    Social interaction

28. The Applicant’s contentions focus on Mr Camilleri’s difficulties connecting with the LGBTQI community, his reliance upon his mother and the impact of his gastrointestinal condition upon his social life (ACS [31(b)]). Reference is also made to the Applicant’s lifelong issues in developing and maintaining relationships. The Respondent contends that the Applicant has a ‘fair degree of social interaction’ with family and the broader community, and lack of friendships arises from self-limiting behaviour (RCS [45]).

29. In his statement, Mr Camilleri refers to coming out around the age of 17 or 18, and his low self-worth and difficulties in making friends [10]. He states that he has tried to attend events in his local gay community but found it overwhelming. Mr Camilleri describes the range of assistance provided by his mother and states he has never felt truly independent [11], [12]. Further, he describes having trust problems arising from an assault when very young [14].

30. The evidence of the Applicant and his mother was generally consistent with the above. They both confirmed that Mr Camilleri attends weekly pottery classes, which I understood to be an activity for persons with some form of disability. Mrs Camilleri stated that her son visits his sisters and does some local shopping including visiting the chemist. I understand from this evidence, and also the Applicant’s statement, that some of his activities out of the house are restricted in scope or duration due to some mobility issues. Mrs Camilleri stated that she attends all of Mr Camilleri’s specialist appointments.

31. Mr Ziegenbein reports that the Applicant experiences challenges in this activity due to his conditions (HB25, 273). In his evidence, Mr Ziegenbein explained that he saw his main focus was to reduce the impact of Mr Camilleri’s gastro-intestinal issues in the short term. He understood it to be a neurological sensitivity, almost similar to a chronic pain condition. The Applicant’s experience of his gut problems was exacerbated by his anxiety.

32. Mr Ziegenbein stated further in re-examination that that Mr Camilleri’s fear of losing control of his bowels ‘majorly undermines’ his confidence and self-worth. One impact described to him by the Applicant was the loss of his social life, and Mr Ziegenbein accepted that gut health and hygiene was a very important matter in the gay male community.

33. Mrs Houston reports that Mr Camilleri mainly socialises with his family, has good relations with his sisters, and also describes his mother attending during shopping and medical appointments (HB25, 311). Mrs Houston acknowledges that gut issues have apparently prevented Mr Camilleri pursuing hobbies and she goes on to state that he appears to be engaging in self-limiting behaviours (HB25, 312). She states specifically that a report of explosive diarrhoea after eating was not witnessed during her assessment during which the Applicant ate and drank.

34. In evidence, Mrs Houston agreed that Mr Camilleri’s gut issues may have a different impact depending upon the social setting. She reiterated, consistent with her report, that strategies could be employed to get around the uncertainties.

35. It is relevant to recall that Mr Camilleri is not seeking access to the NDIS on the basis of his gastro-intestinal issues. I have made a finding that he has a permanent psychosocial disability, but there is no finding here with respect to a disability in the form of a neurological or physical impairment in the form of some version of a gut problem. I accept that there is evidence that his gut problem is associated with his mental health state, and might be seen as a symptom associated with his psychosocial disability.

36. However, gut issues are not the only facet of Mr Camilleri’s physical and psychosocial issues that affect his social interactions. The evidence overall, particularly the objective observation of Mrs Houston is at best inconsistent about the impact of bowel control. It would be an error, I consider, to place too much emphasis on gut problems, despite looming large in evidence.

37. In taking account of the Rules, it appears to me that the most pertinent consideration is whether Mr Camilleri usually requires his mother’s assistance to participate effectively in social interaction. As noted above, a substantially reduced functional capacity presents a high threshold.

38. Overall, I am not satisfied that there is sufficient evidence before me to support a finding in respect of this activity. There is evidence that Mrs Camilleri has, perhaps over the Applicant’s lifetime, adopted a close and caring role helping her son in academic work and more recently with various aspects of his life. This was not, however, enough to persuade me that the function she plays in his life is objectively necessary with respect to his capacity to undertake social interaction.

    Learning

39. The Applicant initially submitted that a finding in respect of this activity would follow from the existence of a permanent disability in the form of specific learning disorder (ASFIC [45]). Evidence relied on in support, otherwise, includes observations in the La Trobe report (ASFIC [45]) and Mrs Camilleri’s evidence about assistance with academic work (ACS [31(c)]). The Respondent submits that while there may be evidence of some reduced functional capacity in learning, this does not reach the required threshold (RCS [72]).

40. Again, I note that a finding with respect to this activity is to be understood in the context of the matter, being that I have found that Mr Camilleri does not have a disability in the form of a permanent impairment to intellectual or cognitive function.

41. I have noted above aspects of evidence relevant to consideration of this activity. I also noted that I considered the overall impact of the La Trobe report somewhat limited, due in part to its equivocal principal findings. I have also noted Mr Camilleri’s academic achievements. I accept that he appears to have had assistance from his mother, but what evidence I have on this is so limited that it is not robust enough to properly inform my findings here. I have noted, further, some evidence arising with respect to Mr Camilleri’s few experiences with hobbies or activities outside employment.

42. Fundamentally, I lack probative evidence that is able to help me make a positive finding that Mr Camilleri experiences substantially reduced functional capacity in this activity.

    Mobility

43. No submissions are made by either party on this activity. Mr Camilleri’s statement and other elements of written and oral evidence address his history of physical mobility, in relation, at least in part, to a knee complaint. However, in the absence of sufficient relevant evidence, I am unable to make a finding in his favour on this activity.

    Self-care and self-management

44. The Applicant makes some relatively broad initial contentions about this activity (ASFIC [47]-[49]). Submissions essentially rely in large part upon evidence said to demonstrate a clear need for support from the Applicant’s mother in many aspects of daily life (ACS [31](d)). The Respondent contends that self-management was not the subject of substantive evidence (RCS [73]). Otherwise, the Respondent submits that despite some deficits, there is not a substantial reduction in functional capacity (Supplementary RSFIC [45]).

45. In his evidence, Mr Camilleri stated that his mental health issues affect his everyday life. He stated that around the house ‘it all builds up’, referring to cooking and cleaning. The Applicant described this as stressful and overwhelming. Mrs Camilleri stated that her son can make a cup of tea, shower and brush his teeth. She also stated that he has a cat. She helps him strip the bed every week and that he folds his own washing after she places it on the couch. The Applicant tries to cook but often it does not work out in which case Mrs Camilleri brings something over, or they order out. Mrs Camilleri stated that her son’s capacity was affected by his mental health condition: sometimes he is triggered and ‘in a fog’. In this case, he lacks motivation.

1. In cross-examination, Mrs Camilleri stated she no longer lives next to the Applicant and is around 20 minutes away. She visits him every few days and stated that, ‘it’s his kitchen’ but they share responsibility. Mrs Camilleri stated there are noodles in the pantry and food from ALDI in the house. Mrs Camilleri undertakes house cleaning, and she stated that a 70-year-old local gentleman mows Mr Camilleri’s lawn, but the Applicant is able to hold a hose.

2. In her report, Mrs Houston states that Mr Camilleri does very little for himself, but is independent with self-care (HB29, 317). She also describes him here as ‘deconditioned’ from lack of participation in activities. Mrs Houston states further that Mrs Camilleri makes medical appointments for her son, and unless she stops doing so, which was out of guilt, he will not be able to learn to do so by himself (HB29, 318). Mrs Houston reports that Mrs Camilleri explained that the Applicant discusses life decisions with herself and his sisters, which might be considered normal behaviour.

3. In cross-examination, Mrs Houston stated that she felt Mrs Camilleri helped her son in a form of overcompensation. She was taken to observations in her report about limitations in the Applicant’s capability said to arise from his experience of knee pain. She reiterated her opinion that Mr Camilleri has adopted a ‘sick role’ leading to reliance upon his mother, and would benefit from a multi-disciplinary pain program. Mrs Houston stated that she was not being critical when describing Mr Camilleri as engaging in self-limiting behaviour. I also understood her to acknowledge that she conducted her assessment based on issues raised by the Applicant, and did not necessarily approach her report from the point of view of his psychosocial disability.

4. It is undoubtedly the case that Mr Camilleri receives a lot of attention and direct forms of assistance in a range of daily activities from his mother. Fundamentally, however, it is difficult to disentangle her provision of assistance from an objectively identifiable need on his part. There is, in fact, a relatively broad array of evidence that Mr Camilleri maintains independence in self-care.

5. The evidence about self-management is somewhat more mixed. However, it appears to me from the evidence overall that the Applicant has a range of domestic capabilities. The question that arises is whether, in terms of the Rules, Mr Camilleri ‘requires’ the assistance of someone to participate in the activity of self-management. I do not consider this test to be met. In any event, I am not satisfied that the high threshold of substantially reduced functional capacity is met.

   CONCLUSION

6. As I have not found any substantially reduced functional capacity, it is not necessary to consider the further elements of s 24 of the Act.

7. Strictly speaking, I must also make a finding as to whether Mr Camilleri meets the early intervention requirements. It is contended on his behalf that given his age and the length of time he has been treated, this is unlikely to be that case (ASFIC [54]-[55]). The Respondent contends there is a lack of evidence to substantiate a finding, and the opportunity for ‘early’ intervention is well past (Supplementary RSFIC [65]).

8. For the reasons stated by the Applicant, I also consider that s 25 of the Act is not satisfied.

   DECISION

9. For the reasons given above, the Tribunal finds that the decision under review is affirmed.

Dates of hearing:	26, 27 and 28 August 2024
Counsel for the Applicant	Mr Chris McDermott
Solicitors for the Applicant	AED Legal Centre
Counsel for the Respondent:	Ms Louise Martin
Solicitors for the Respondent:	National Disability Insurance Agency