CBFP and National Disability Insurance Agency - [2023] AATA 3425

CBFP and National Disability Insurance Agency [2023] AATA 3425 (23 October 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/2902
Re:CBFP
APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION
Tribunal:Member D. Barker
Date:23 October 2023
Place:Sydney

The Tribunal affirms the decision under review.
......................................[SGD]..................................
Member D. Barker

CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – whether applicant meets the disability or early intervention requirements – PTSD, anxiety, depression and personality disorder – survivor of child sexual abuse – whether impairments are permanent – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013(Cth)
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (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
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Re MKKR and Minister of Immigration (2016) 69 AAR 512; [2016] AATA 458
XMFS and National Disability Insurance Agency [2022] AATA 568
SECONDARY MATERIALS
Administrative Appeals Tribunal, ‘Guideline for Persons Giving Expert and Opinion Evidence’ (30 June 2015)
‘Applying to the NDIS’ National Disability Insurance Scheme (Web Page, 1 August 2022) < Guidelines’ National Disability Insurance Scheme (Web Page, 6 October 2023) < Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth)
United Nations Convention on the Rights of Persons with Disabilities
‘Who We Are’, Phoenix House (Web Page) < FOR DECISION
Member D. Barker
Introduction

This application is about whether the Applicant, CBFP, should be granted access as a participant to the National Disability Insurance Scheme (NDIS).
The Applicant is 20 years old and lives with her mother in regional Queensland.
The Applicant applied to become a participant in the NDIS in November 2021 (the access request).[1] Information provided in association with this application by her treating general practitioner (GP), Dr Emily Jacob, by way of a letter dated 7 July 2021, identified that the Applicant has a psychosocial impairment as a result of a diagnosis of post-traumatic stress disorder (PTSD).[2] Dr Jacob reports that the PTSD condition is permanent in nature and affects the Applicant’s daily living across the functional domains of communication, social interaction, learning, self-care and self-management and that the Applicant requires assistance from other people and that her disability affects her capacity for social and economic participation and that she is likely to require support under the NDIS for life.
[1] T Documents, T8.
[2] T Documents, T4.
On 14 February 2022, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) determined that Applicant did not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (the Act or NDIS Act). In particular, the delegate determined the permanency requirements in s 24(1)(b) and
[3] T Document, T11.
s 25(1)(a) of the Act were not satisfied.[3]
The Applicant, on 15 March 2022, requested an internal review by the NDIA (the Respondent).[4]
[4] T Documents, T13.
On 1 April 2022, another delegate of the CEO (the NDIA Internal Reviewer) confirmed the decision that the Applicant did not satisfy required access criteria to become a NDIS participant (the Internal Review Decision).[5] In this Internal Review Decision the delegate explained that whilst they were satisfied the Applicant has a disability attributable to an impairment resulting from PTSD, major depressive disorder (MDD) and Anxiety (s 24(1)(a)), they were not satisfied the impairments associated and resulting from the PTSD, MDD and Anxiety were permanent (s 24(1)(b)) as there was insufficient information relating to type, frequency, duration, participant engagement, outcomes or specialist prognosis regarding each treatment intervention detailed by either Dr Jacob or psychologist C Madle to establish “all available and appropriate treatment options likely to improve the impact of the applicant’s condition have been explored”.[6] The NDIA Internal Reviewer indicated that:
In the absence of evidence regarding your treatment history, treatment outcomes and details regarding modalities undertaken, and specific specialist opinion regarding future treatment options and prognosis, I am unable to conclude there are no further treatments available to remedy your psychiatric impairment. Therefore, based on the provided evidence, the permanency of your impairment cannot be determined at this time.
[5] T Documents, T2.
[6] Ibid, p 11.
In relation to remaining criteria and s 24(1) of the Act, the NDIA Internal Reviewer stated that the criteria in s 24(1)(c) cannot be determined in the situation where the impairment permanency requirement in s 24(1)(b) is not determined and that upon the basis of the information available to them they were not satisfied criteria either s 24(1)(d) or s 24(1)(e) were met.
On 5 April 2022, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.
The Applicant and Respondent participated in a number of case conferences and telephone direction hearings in which evidentiary gaps were identified, as well as suggestions as to how these evidentiary gaps could potentially be responded to by the Applicant.[7] The Tribunal as currently constituted is unaware of the content of discussions which took place without prejudice in case conferences facilitated by an AAT Conference Registrar. The Tribunal has however had the benefit of assessments, reports and other material which may have been filed with the Tribunal for the purpose of the review application as a consequence of discussion of evidentiary issues during case conference events.
[7] Case Conference by telephone events were held on 30 May 2022, 8 August 2022, 29 September 2022 and a Telephone Directions Hearing was held on 11 January 2023.
A request from the Applicant that the review application be decided ‘on the papers’ (OTP), without the Applicant being required to give evidence at a hearing was conveyed to the Tribunal on 7 October 2022 by way of emails from the Advocate assisting the Applicant.
On 22 November 2022, the Tribunal received an email from the Respondent indicating that whilst they were conscious of the Applicant’s personal apprehensions with regard to proceeding to an in-person hearing and that they did not want to place the Applicant in a position that will cause any additional anxiety or stress. Notwithstanding this, the Respondent indicated that in their view a hearing, for the purposes of testing the medical evidence, was necessary however an option could be for the Applicant to be excused from attending and that she be able to provide any submissions she considered necessary in a written form. Further to this, the Respondent indicated that they were undertaking further investigations and would like to reserve the right to consent to the matter been resolved OTP should their investigations resolve outstanding medical issues.
A further request from the Applicant that the matter be determined OTP was received by the Tribunal on 8 February 2023.
On 28 February 2023, the Tribunal wrote to the parties, noting amongst other things that there was currently a pilot project between the Tribunal and the Respondent to identify review applications before the Tribunal where OTP decisions may be appropriate. The letter to the parties indicated the Applicant’s review application had been identified by the Respondent as one such case and that the Respondent was no longer opposed to the Tribunal making a decision on the review application OTP, without the matter proceeding to hearing. Confirmation, by way of email, of the request for an OTP decision was subsequently received from the Applicant on 2 March 2023, and the Respondent on 14 March 2023. The Tribunal then issued directions in relation to setting a date by which the parties were to file written submissions and any further evidence that they wish the Tribunal to consider in determining the review.
The Tribunal has had regard to the case of National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) in considering whether the parties have had a fair opportunity to provide evidence and make submissions on the relevant issues and factors in this case. I am satisfied that the Tribunal, in proceeding to determine the review OTP, is not considering issues beyond those considered by the parties.
The Tribunal is satisfied the parties have had a fair opportunity to consider all the relevant material and the issues raised in this case and has decided that this matter is an appropriate one to determine OTP, without the parties appearing before the Tribunal at hearing. In doing so the Tribunal has taken into consideration all the material before it, including statements, reports and documents filed with the Tribunal by the parties.
In the course of considering the evidence and submissions the Tribunal, on 29 May 2023, wrote to the Applicant and Respondent inviting them to provide further evidence and / or submissions in relation to points arising from the Respondent’s SFIC and the Applicant’s Statement in Reply. Where relevant, evidence and / or submissions in relation in relation to these points are discussed in following sections of these reasons.
Legislative Framework
The objects of the Act are set out in section 3. It includes, amongst other things, to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities,[8] and facilitate the development of a nationally consistent approach to access to, and planning and funding of, supports for people with disability.[9] The Act also states that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.[10]
[8] Opened for signature 13 December 2006, [2008] ATS 12, ratified by Australia 17 July 2008.
[9] NDIS Act s 3(1)(f).
[10] Ibid s 3(3)(b).
There are general principles under section 4 of the Act and includes that people with disability be:
·supported to participate in and contribute to social and economic life;[11]
·able to receive the care and support they need over their lifetime and that there be certainty around this;[12]
·supported to pursue their goals and maximise their independence;[13]
·supported to live independently and to be included in the community as fully participating citizens;[14] and
·able to undertake activities that enable them to participate in the community and in employment.[15]
[11] Ibid s 4(2).
[12] Ibid s 4(3).
[13] Ibid s (4)(11)(a).
[14] Ibid s (4)(11)(b).
[15] Ibid s (4)(11)(c).
Under section 18 of the Act, a person may make an access request to the NDIA to become a participant in the NDIS. If a prospective participant makes an access request, under s 20 of the Act, the CEO (or upon the matter being reviewed by the Tribunal, the Tribunal) must decide whether or not that person meets the ‘access criteria’ to become a participant in the NDIS. Pursuant to subsection 28(1) of the Act, a person becomes a NDIS participant on the day it is decided that the person meets the access criteria.
The provisions relating to access to the scheme are contained in Part 1 of Chapter 3 of the Act. Section 21 of the Act provides that for a person to meet the access criteria, they must meet the age and residence requirements in addition to either the disability requirements (s 24 of the Act) or the early intervention requirements (s 25 of the Act).
Amendments to sections 24 and 25 of the Act came into effect on 1 July 2022. Both the original decision which the NDIA made regarding the Applicant’s request for access to the NDIS, and the NDIA’s internal review decision, were made prior to those amendments. The Tribunal’s decision is made subsequent to those amendments.
At the time that the Agency made its internal review decision, a person met the disability requirements under section 24(1)(a) if:
the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition.
The amendments removed the reference to impairments attributable to a psychiatric condition and replaced them with the phrase “one or more impairments to which a psychosocial disability is attributable”. From 1 July 2022, a person meets the disability requirements under section 24(1)(a) if:
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.
The transitional provisions at Schedule 2, Item 54 of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) provide that:
1The amendments of sections 24 and 25 of the National Disability Insurance Scheme Act 2013 made by this Schedule apply in relation to the following:
(a)an access request made on or after the commencement of this item;
(b)an access request that was pending immediately before that commencement;
(c)a revocation under section 30 of that Act made on or after that commencement.
As the decision under review relates to the determination of an access request under section 18 of the Act, it follows that the term “an access request that [is] pending immediately before” the commencement covers a decision under review, as in this review, that “has not been finalised prior to the commencement”. The Revised Explanatory Memorandum[16] provides, in relation to Schedule 3, Item 56 that the amendment would apply “if a decision on their request under section 18 of the Act has not been finalised prior to the commencement”.
[16] Revised Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth).
With respect to the disability requirements, section 24 of the Act provides:
24 Disability requirements
1A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)     communication;
(ii)    social interaction;
(iii)   learning;
(iv)   mobility;
(v)    self‑care;
(vi)   self‑management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
Each subsection of s 24(1) of the Act needs to be met. In regard to this, the linking term ‘and’ in the provisions is significant. In effect, subsection s 24(1)(a) through s 24(1)(e) are threshold requirements that need to be satisfied in order for a person to be eligible to become a participant of the NDIS. The Tribunal must be satisfied, on the basis of rationally probative and relevant evidence, that these and other required provisions are met.
The Act also provides, in subsection 209(1), that the Minister may make rules prescribing matters under the Act. Section 27 of the Act further states that the rules may prescribe circumstances in which, or criteria to be applied with respect to assessing whether, a person meets the disability requirements under section 24 or the early intervention requirements under section 25 of the Act. The relevant rules are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), of which Part 5 is relevant and provides as follows:
Part 5 When does a person meet the disability requirements?
5.1 The Act sets out when a person meets the disability requirements. The requirements are met if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or to one or more impairments attributable to a psychiatric condition; and
(b)the person’s impairment or impairments are, or are likely to be, permanent (see paragraphs 5.4 to 5.7); and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication, social interaction, learning, mobility, selfcare, self-management (see paragraph 5.8); and
(d)the impairment or impairments affect the person’s capacity for social and economic participation; and
(e)the person is likely to require support under the NDIS for the person’s lifetime.
5.2 In relation to the above, an impairment that varies in intensity (for example because the impairment is of a chronic episodic nature) may be permanent, and the person is likely to require support under the NDIS for the person's lifetime, despite the variation.
5.3 This Part sets out rules relating to some of the elements in paragraph 5.1 above, however, in order to meet the disability requirements, all of the requirements in that paragraph need to be satisfied.
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

The Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[17] The NDIA website explains that the Operational Guidelines set out some of the NDIA’s operational information and that they are based on the NDIS Legislation and Rules.[18] The website explains that the Operational Guidelines explain what the NDIA needs to consider and how the NDIA make decisions based on the legislation. The relevant Operational Guideline is Applying to the NDIS (the Access Guidelines).[19] In relation whether a person’s disability is caused by an impairment and whether an impairment is likely to be permanent, the Access Guidelines provide the following information:
[17] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179.
[18] ‘Operational Guidelines’ National Disability Insurance Scheme (Web Page, 6 October 2023) < ‘Applying to the NDIS’ National Disability Insurance Scheme (Web Page, 1 August 2022) < your disability caused by an impairment?
When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment.
An impairment is a loss or significant change in at least one of:
·your body’s functions
·your body structure
·how you think and learn.
To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below
·intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information
·cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention
·neurological – such as how your body functions
·sensory – such as how you see or hear
·physical – such as the ability to move parts of your body.
You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and tasks due to your mental health.
It doesn’t matter what caused your impairment, for example if you’ve had it from birth, or acquired it from an injury, accident or health condition.
It also doesn’t matter if you have one impairment, or more than one impairment.
Is your impairment likely to be permanent?
We need evidence that you’ll likely have your impairment for your whole life.
You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity[i]. Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.
Even when your condition or diagnosis is permanent, we’ll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, still being treated, or if there are remaining treatment options.
Generally, we’ll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued.
If you give us evidence you have been diagnosed with a condition on List B, we’ll likely decide your disability is from an impairment that’s likely to be permanent.
The Evidence
The documents before the Tribunal are as follows.
The ‘T-Documents’ (T1 – T16, pp 1 – 163) provided under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to the Tribunal by the Respondent after the application for review was made, which comprises evidence provided by the Applicant to the Respondent and other documents available to the NDIA Internal Reviewer at the time of their decision.
The Applicant’s material as follows:
(a)Letter from Treating GP Dr Khan dated 31 May 2022.
(b)Letter from Treating GP, Dr Khan, dated 6 June 2022.
(c)Statement of Lived Experience dated 13 June 2022.
(d)Letter from Treating GP Dr Khan dated 29 June 2022.
(e)Mental Health Access Snapshot 6 - [with covering email] - undated.
(f)Evidence of psychosocial disability form completed by GP, Dr King, on 5 October 2022 and Ryan Nielsen, Rhino Support Co-ordination, on 29 September 2022.
(g)DASS 21 completed by Applicant on 6 October 2022.
(h)Kessler Psychological Distress Scale (K10) – undated.
(i)Mental Health Modified Mini Screen dated 6 October 2022.
(j)Psycheck self-reporting questionnaire, completed by Applicant on 6 October 2022.
(k)Report of Counsellor, Ms Heath, Cleone’s Counselling dated 16 October 2022.
(l)Scanned copy of Applicant Centrelink Income Statement, dated 12 April 2023.
(m)Email from Ryan Nielsen, Rhino Support Co-ordination, dated 1 June 2023.
(n)Fact sheet from the Royal Australian & New Zealand College of Psychiatrists (RANZCP) – yourhealthmind.org – Cost to see a psychiatrist (Australia) – revised June 2019.
(o)Completed AAT Statement of Financial Circumstances (Centrelink reviews) form, dated 25 June 2023, completed by Ryan Nielsen, Rhino Support Co-ordination on behalf of CBFP.
(p)Report of Dr Karen King, Branyan Clinic, dated 13 June 2023.
The Respondent’s material as follows:
(a)Targeted Questions of Dr Joshi and Dr Batterham dated 1 June 2022.
(b)Report of Associate Professor Donald Grant dated 12 August 2022.
(c)Letter of Instruction to Associate Professor Donald Grant dated 21 February 2023.
(d)Supplementary Report of Report of Associate Professor Grant dated 28 February 2023.
Other material as follows:
(a)Respondent’s Updated Statement of Facts, Issues and Contentions dated 31 March 2023.
(b)Applicant’s Statement in Reply dated 2 April 2023.
(c)Applicant’s Statement in Reply dated 25 June 2023.
On 21 June 2023, the Tribunal received further submission from the respondent, as follows:
(a)Respondents Further Submissions, dated 21 June 2023, with Annexures
(i)Annexure 1: File Note 29 November 2022 – Subject - Telephone calls to TAB recommended providers.
(ii)Annexure 2: Letter of instruction to Associate Professor Donald Grant, dated 21 February 2023.
(iii)Annexure 3: File Note 20 June 2023 – Subject - Telephone calls to Bulk Billing Psychiatrist.
(iv)Annexure 4: AAT Statement of Financial Circumstances (Centrelink reviews) form – blank.
On 22 June 2023, the Tribunal wrote to the Applicant following receipt of the further submissions received from Respondent, inviting her to include with in any statement in reply to the Respondent’s further submissions a completed Statement of Financial Circumstances form, or an indication that this will not be forthcoming.
On 6 July 2023, the Applicant provided the Tribunal with a Statement in reply to the Respondent’s further submissions
Issues
The issue arising in this case is whether the Applicant satisfies the access requirements to become a participant of the NDIS. There is no dispute that the Applicant meets the age and residency requirements set out in sections 22 and 23, and I so find. It is therefore necessary for the Tribunal to consider whether the Applicant satisfies either the disability requirements, or the early intervention requirements in the Act.
The Applicant’s contentions
The Applicant’s Statement in Reply to the Respondent’s Updated SFIC, dated 2 April 2023 (Applicant’s Statement in Reply) raises a number of issues regarding their perception of the manner in which Respondent has acted whilst the review application has been before the Tribunal, such as the Respondent not meeting specified timelines with respect to the production of reports and other documents. I would note that the Tribunal does not have a role in evaluating the performance of the NDIA or their legal representatives unless the circumstances identified raised concern as to whether the review process has lacked procedural fairness and not provided both parties with a meaningful opportunity to put before the Tribunal the evidence and arguments that wish the Tribunal to take into account when making a decision on the review.
In relation to the provision of documents in particular, the Tribunal notes concerns raised in the Applicant’s Statement in Reply with regard to the Respondent not providing notice of a supplementary report, which the Tribunal takes to be the Supplementary Report of Associate Professor Grant (Dr Grant) dated 28 February 2023. The issue arising for the Tribunal, with respect to procedural fairness, is that the Applicant has had the opportunity to review and comment on this and other documents which the Respondent has relied upon in support of the argument and contentions they wish the Tribunal to take into account when making a decision on the review. The Tribunal notes that comment is made about content in the Supplementary Report of Report of Dr Grant in the Applicant’s Statement in Reply and on that basis the Tribunal is satisfied that the Applicant has had the opportunity to review and comment on this document.
The Applicant’s Statement in Reply notes that the Applicant “is applying for PTSD as well as, Anxiety and Depression” and “would like to make it known that Dr Grant has diagnosed and then reinforced in the supplementary letter additional diagnosis of Mixed Personality Disorder, and Borderline Personality Disorder”.[20] The Tribunal notes that the Applicant’s Statement in Reply was prepared with the assistance of a support worker who does not have legal qualifications and to that extent is not legally represented. In light of this the Tribunal has at points inferred the intention of contentions detailed in the Applicant’s Statement in Reply and other submissions and in relation to the aforementioned contention in particular has taken the Applicant to mean that in relation to her access request she meets either the disability requirements or the early intervention requirements in the Act on the basis of having one or more impairments to which a psychosocial disability is attributable.
[20] Applicant Statement in Reply, dated 2 April 2023, p 1.
The evidence in support of the Applicant’s contentions will be discussed in the following sections of these Reasons.
The Respondent’s contentions
In their Updated SFIC, the Respondent notes that “A person meets the “disability requirements” in section 24 if, firstly, he or she has a disability or psychiatric condition that is attributable to an impairment” (emphasis added).[21] The Tribunal notes that in conducting the review it has adopted the amendments to sections 24 and 25 of the Act which came into effect on 1 July 2022, which in relation to s 24(1) now provides in part that the person has one or more impairments to which a psychosocial disability is attributable:
[21] Respondent Updated SFIC, dated 31 March 2023, [14-15].
The Respondent accepts that the Applicant has met the age requirements in s 22 and the residence requirements in s 23 of the Act.[22]
[22] Ibid, [13].
The Respondent accepts that the Applicant has impairments, in the nature of effects on the Applicant’s development of identity, self-esteem, ability to relate to others, ability to function in relationships or in society, and in terms of producing a range of emotional and psychological symptoms, what are attributable to two psychiatric conditions, namely PTSD and a complex Personality Disorder with mixed features and in taking this view indicates that they have relied on the opinion of Dr Grant, Psychiatrist.[23]
[23] Report of Dr Grant, dated 12 August 2022.
The Respondent contends that the Applicant does not meet the disability requirements under s 24, or the early intervention requirements in s 25. The evidence in support of the Respondent’s contentions will be discussed in the following sections of these Reasons.
Consideration of Claims and Evidence
Some initial considerations
Evidence of experts is admissible in proceedings before the Tribunal in the same circumstances as it is admissible in proceedings before a court, with some differences. The weight to be given to evidence is a matter for the Tribunal to determine. In doing so, the Tribunal is not bound by the rules of evidence and may take into account any matter that is relevant to the issues to be determined. In particular, the Tribunal is not bound by the rules relating to opinion evidence and may have regard to material that would not be admissible in a court applying the rules of evidence.
The Respondent contends that notwithstanding the opinions expressed by Dr Jacob, Dr Khan and Dr King, the opinion of Dr Grant, arising from the independent psychiatric assessment undertaken by the Applicant upon 4 August 2022, ought to be preferred on the issues of availability of treatment options and permanency. The Respondent contends that as a consultant psychiatrist, Dr Grant is more qualified to comment on suitable treatment options for the Applicant’s psychiatric impairments than a GP. Further to this, the Respondent contends that obtaining a medicolegal opinion on this issue was also the suggested approach of Dr Batterham.[24]
[24] Respondent Updated SFIC, dated 31 March 2023, [33].
In relation to the issue of ‘weight’ given to the opinion of Dr Grant and that of other doctors and health professionals who have either assessed or treated the Applicant, that is, whose opinions should be preferred, the Applicant contends:[25]
The Respondent is relying on a 30 minute telehealth session with their specialist, when she was at home in a comfortable environment, with mother and siblings nearby, and requesting the member to ignore the reports and information from 2 GPS, A Psychologist, a Counsellor, and 2 other Psychiatrists when in Dr Grants own report he felt it was insufficient.
[25] Applicant Statement in Reply, dated 2 April 2023, [33].
In Re MKKR and Minister of Immigration (MKKR) DP Forgie noted that an expert should be required to spell out the facts on which his or her opinion is based lest it be shown that they differ from the Tribunal’s findings of fact.[26] The Tribunal can see no reason as to why this principle should not be taken into account and applied on a general basis when determining the weight given to any report or assessment prepared by a health professional.
[26] Re MKKR and Minister of Immigration (2016) 69 AAR 512; [2016] AATA 458.
In this matter the Tribunal regards the Reports provided by Dr Grant,[27] to be suitably regarded as evidence provided by an ‘expert’ and thus requiring compliance to the principles outlined in the Tribunal’s Guideline for Persons Giving Expert and Opinion Evidence (the expert evidence guidelines).[28] This does not diminish the assessments or opinions of other doctors and allied health professionals, but has the effect of requiring the guidelines be adhered to in order to give due weight to the assessment and opinion of Dr Grant.
[27] The Tribunal has inferred Dr Grant to be the ‘specialist’ referred to by the Applicant.
[28] Administrative Appeals Tribunal, ‘Guideline for Persons Giving Expert and Opinion Evidence’ (30 June 2015).
As to the weight to be given to the reports of Dr Grant, the Tribunal is of the view that they appear compliant with the expert evidence guidelines with respect to reports, in that Dr Grant:
·Acknowledges that he has an overriding duty to provide impartial assistance to the Tribunal.
·Details his area of knowledge and his qualifications and experience.
·Details documents provided to him in relation to the request for and terms of reference for his report.
·Details of facts and assumptions that inform the report and the sources for the factual information in the report and reasons for any opinion that is expressed.
·Qualifies the assessment made and opinion expressed in terms of limitations arising from the mode of assessment, namely via an interview conducted remotely by a ‘Zoom’ internet connection.
Further to this, the information provided regarding Dr Grant’s qualifications and experience indicate that he is an experienced Psychiatrist, having practiced psychiatry since the early 1970’s, holding the qualifications of a Bachelor of Medicine and Bachelor of Surgery, Diploma in Psychological Medicine, Conjoint London College and Permanent Impairment Rating Scale accredited, and as well he is a Fellow of the Royal Australian and New Zealand College of Psychiatrists and a Fellow of Forensic Faculty, Royal Australian and New Zealand College of Psychiatrists.
The Applicant contends that the respondent is relying on a 30 minute telehealth session conducted with the Applicant by Dr Grant. The Tribunal acknowledges the modality of an assessment interview is, as indeed discussed by Dr Grant in his report, a relevant consideration when assessing a person affected by a mental health condition. In relation to this particular factor, the Tribunal notes that the diagnostic opinion provided by Dr Batterham was also provided on the basis of one assessment consultation with the Applicant conducted in February 2021 by the medium of video telemedicine,[29] that is, in an equivalent manner to that conducted by Dr Grant.
[29] T-Documents, T6.
As to the duration of Dr Grant’s assessment consultation with the Applicant, there is no information before the Tribunal as to the duration of the one-off consultations the Applicant had with either Dr Batterham or Dr Joshi, which as health professionals with similar qualifications to Dr Grant, may provide a basis for comparison to the contended 30 minute duration of Dr Grant’s assessment consultation. In relation to the comparative weight accorded to information from health professionals who are not psychiatrists but have other relevant expertise and who have had more extensive contact with the Applicant, the Tribunal acknowledges the need to give due weight to this material where, as discussed in MKKR, the facts on which the opinion or assessment is based and further to this, there is a rational basis for the assessment or opinion provided.
The Disability Requirements
Does the Applicant have a disability attributable to one or more impairments? – s 24(1)(a)
The Tribunal first turned its mind to whether the Applicant 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.
The Act does not define the word, “disability,” nor the word, “impairment.” The Tribunal is aware that the concept of impairment, rather than a definition of disability, is central to the threshold provisions such as s 24. In Mulligan v National Disability Insurance Agency (Mulligan), Justice Mortimer discussed the meaning of these terms.[30] Her Honour stated at [51] and [56]:
Some general observations should be made about these matters. The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person's impairments on that person's abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.
[…]
No decision-maker need be satisfied a person's impairment is “serious”, or more serious than another person's. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity.
[30] Mulligan v National Disability Insurance Agency (2015) FCA 544.

The distinction between the statutory concept of impairment and the concept of a medical condition or diagnosis was discussed by Justice Mortimer in Davis. Her Honour noted at [69]:
What the legislative scheme focuses on is not the name of a person's disability, nor the diagnosis given to a person - but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.
In Mulligan Justice Mortimer described the importance of the assessment needed to ascertain a person’s eligibility to become a participant of the NDIS. Her Honour stated:[31]
Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
[31] Ibid, [55].
A Statement of Lived Experience prepared by the Applicant and her mother describes difficulties experienced by the Applicant in the following areas, which include:[32]
(a)Communication: - “I often use my mother or someone else to communicate as I struggle to find the words or the confidence. My Anxiety, PTSD etc take a hold over me preventing me from communicating very well.” “Fatigue, lack of concentration, am a hands-on learner not visual. If not interested can be very easily distracted.” “Very difficult to learn new skills and when they have been learned, it is has proven to be very challenging to apply them to day-to-day life.”
(b)Social Interaction: - “Just the family I live with. I go to shops and appointments with mum and siblings. I do not use social media and only have two friends who like 5hrs + away.”
(c)Self-Care: - “Yes Personal Care assistance is needed, currently mum assists when she can but due to requiring a large amount effort due to diagnosis some Personal Care such as grooming of hair etc requires additional prompting or assistance.”
(d)Self Management: - “No, thats way too scary and gives me anxiety. Cannot use the phone or talk to other specialists or providers. Anxiety and PTSD immediately kicks in.” “Feels like can manage but is susceptible to being manipulated and has been conned before. Uses mum to handle all bill payments and just manages the money she sets aside for her own spending.”
(e)Fluctuating functional capacity: “Fatigue, insomnia, depressed, anxious, emotional, feel like I'm going to cry all the time, very angry, unmotivated, feel worthless, lonely, shaky, tummy pain, see and hear things that aren't there, easily triggered. Barely functions during these episodes and can also forget to eat unless prompted.”
[32] Statement of Lived Experience, dated 13 June 2022.
The Applicant’s treating GP, Dr Emily Jacob reports that the Applicant has a psychosocial impairment as a result of a diagnosis of PTSD.[33] Dr Jacob reports that the PTSD condition is permanent in nature and affects the Applicant’s daily living across the functional domains of communication, social interaction, learning, self-care and self-management.
[33] T Documents, T4.
A letter from Dr Michael Batterham, Child and Adolescent Psychiatrist states that he saw the Applicant on 3 February 2021 by video telemedicine and that his assessment, in relation to diagnostic issues was:[34] “1. Post-traumatic stress disorder. 2. Auditory and visual phenomena consistent with stress-related dissociative experiences. 3. There was a history of chest pain when stressed or walking.”
[34] T Documents, T6.
Dr Raja Adeel Khan, GP reports that he has been reviewing the Applicant since 28 July 2020 and that the diagnosis of complex PTSD has been confirmed by two different psychiatrists, Dr Michael Batterham and Dr Hiteshi Joshi.[35]
[35] Letter of Dr Khan, dated 31 May 2022.
The report of Dr Donald Grant, Consultant Psychiatrist, assessed the Applicant as having diagnoses as follows:[36]
(a)“PTSD following prolonged and severe abuse at the hands of her stepfather during her early teenage years.”
(b)“Personality Disorder with mixed features including immaturity, confusion regarding identity, dissociative features, a propensity for some self harm, unstable affects and confusion in regard to goals and activities. These features would often be regarded as fairly typical of an early borderline personality disorder but they are also intricately bound up with the effects of severe traumatic sexual abuse and other traumas in early life.”
[36] Report of Dr Grant, dated 12 August 2022.
Dr Grant reported that in his interview with the Applicant he did not find evidence of her currently suffering from a major depressive disorder and he also did not regard her as having any primary intellectual handicap. Dr Grant’s report indicated that the Applicant suffers from asthma and uses an inhaler irregularly.
In relation to impairment attributable to the Applicant’s conditions, Dr Grant’s makes the following comment in his report:
Sexual abuse and other early childhood traumas have complex effects upon a person’s development and can cause a range of symptomatic issues. The effects are multiple on a person’s development of identity, self esteem, ability to relate to others, ability to function in relationships or in society, and in terms of producing a range of emotional and psychological symptoms. The problems that such a person has, arise from the effects of trauma during vulnerable periods of their life, especially in early childhood and adolescence.
Conclusion as to s 24(1)(a)
With respect to the medical condition of asthma, the Tribunal notes that the Applicant has made no claim to suffer a disability attributable to impairment associated with this medical condition. The Tribunal’s review of the available evidence, whilst noting there is reference to the Applicant using an inhaler on an irregular basis, is that there is not evidence that would lead to a finding that the Applicant has a disability attributable to impairment caused by the medical condition of asthma.
On the basis of the available evidence, including that outlined in the Applicant’s Statement of Lived Experience and the evidence provided by medical and allied health professionals, the Tribunal is satisfied that the Applicant has one or more impairments to which a psychosocial disability is attributable.
As the Tribunal has found that the Applicant has one or more impairments to which a psychosocial disability is attributable, the requirements in s 24(1)(a) are met.
Are the Applicant’s impairments permanent? – s 24(1)(b)
A person meets the disability requirement criterion under subsection 24(1)(b) of the NDIS Act if the “impairments are, or are likely to be, permanent.”
In Davis, Justice Mortimer addresses the meaning of “permanent” in s 24(1)(b). Her Honour states at [130]:
The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis. As s 29 and s 30 make clear, the intention of the scheme is that once a person meets the access requirements, then subject to certain specific exceptions, the person will remain supported by the NDIS through their lifetime.
As I have discussed in the section of this decision outlining the legislative framework for the NDIS, Part 5 of the Access Rules address when impairments are, or are likely to be, permanent for the purposes of s 24(1)(b). Relevant to this review, rule 5.4 states:
An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
In Davis, Justice Mortimer discusses the meaning of terms she considers important for the proper construction of the Access Rules and in relation to such terms states at [136] – [140]:
The chosen descriptors must also be construed consistently with the other language used in this section of the rules, and in r 5.4 in particular, including the requirement that the treatment “would be likely to remedy the impairment”. In this context, “remedy” should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word “remedy” should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment”, as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured.
As a general observation, in my opinion each of the adjectives must be construed as referring to circumstances in Australia. In r 5.4, the word “known” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment. The word “appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo. The capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, on their personal circumstances in terms of where they live and who they live with, and who cares for them.
The word “available” should be understood as meaning available to a particular individual. If it were to be construed as meaning “exists in Australia”, then it would have little different work to do from the word “known”. The Macquarie Dictionary defines “available” as meaning:
“adjective 1. suitable or ready for use; at hand; of use or service …”
Assuming as I do the validity of r 5.4, and on the premise any given treatment is “known” and “appropriate” as I have explained those terms, in my opinion the adjective “available” should be understood as directed at what treatments an individual can, in reality, access. Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.
Affordability may not be the only feature of a treatment affecting whether an individual can access a treatment. For example, whether a known and appropriate treatment for an impairment for a person in a remote Aboriginal community in Australia is “available” to that person is likely to involve considerations of whether that treatment can be delivered in that community, or whether a person has to travel to a major city or regional town to receive that treatment. So too the personal circumstances of a person, and the combination of impairments they might have. If a person has severe agoraphobia, but also has an impairment for which there is a known and appropriate treatment that can only accessed at a busy public hospital, a decision-maker may need to consider whether, as a matter of fact, that treatment is “available” to that individual, even if it might be “available” to a person without agoraphobia.
Consistent with Davis, the Tribunal has considered whether the impairments experienced by the Applicant, rather than the cause of the impairments or the specific diagnoses of PTSD and complex personality disorder with mixed features, have an enduring quality so as to require supports funded and/or provided through the NDIS on an ongoing basis. As such the Tribunal’s consideration encompasses the symptoms affecting the Applicant’s ability to participate in all aspects of personal and community life, including but not limited to symptoms and difficulties such as: anxiety, depression, hypervigilance, nightmares and intrusive phenomena, dysregulated affective states, sleep difficulties, fatigue, difficulty concentrating, self-harm behaviours, amotivation, dissociative symptoms and avoidant behaviours.[37]
[37] Symptoms sourced from various documents from health professionals.
With respect to the issue of the permanence of impairments affecting the Applicant to which a psychosocial disability is attributable, the Respondent notes that as r 5.4 of the Access Rules states that an “impairment” will only be considered permanent if there are no known, available and appropriate evidence-based clinical, medical or other treatments that likely remedy the impairment, the Tribunal needs to be positively satisfied that there are no such treatments. In relation to this contention the Respondent refers the Tribunal to the terms “known,” “appropriate,” “remedy” and “available”, suggesting their meaning should be understood in a manner consistent with that put to them in Davis. The Respondent has also drawn the attention of the Tribunal to r 5.5 and r 5.6 of the Access Rules.[38]
[38] Respondent Updated SFIC, [18] – [23].
As discussed above, in Davis Justice Mortimer suggests the word “known” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment. In relation to impairments arising from traumatic experience, such as sexual abuse and domestic violence, the Tribunal is of the view that the word “known” can connotate suitable treatment and interventions that may be identified by other health professionals with relevant qualifications and experience in trauma informed care. In forming this view the Tribunal is aware that diagnosis of clinical conditions such as PTSD and depressive disorders is optimally the function of a suitably qualified specialist such as a psychiatrist or clinical psychologist, but may also be made by other medical practitioners. The Tribunal is however of the view that the task of diagnosis does not equate to having knowledge and understanding of the gamut of treatment and trauma informed support options suitable for victims of sexual abuse and domestic violence. In expressing this view, the Tribunal does not infer treatments identified by Australian medical practitioners do not have relevance, merely that with respect to impairments resulting from traumatic experience, “knowledge” of suitable treatment in the Australian context need not be limited such that suitable treatment and trauma informed support which may be identified by other suitably qualified and experienced health professionals are not taken into account.
In line with the aforementioned point, the Tribunal notes that the report of Clare Madle, dated 2 June 2022, Registered Provisional Psychologist, from the Btransformed Allied Health and Fitness Clinic in Bundaberg makes reference to the Applicant having attended Headspace Bundaberg, from April 2020 to May 2021 and Phoenix House Bundaberg, from August 2021 to March 2022.
A previous letter from Ms Madle dated 9 November 2021, from a time she was working at Phoenix House Bundaberg, states that the Applicant had attended psychotherapy since late April 2020, with a frequency of approximately every three to four weeks.[39] Ms Madle reports that whilst the Applicant’s had been cooperative and had engaged well in sessions, albeit that her symptomology appears chronic and permanent.[40]
[39] T Documents, T8.
[40] Ibid.
The Tribunal notes that the website for Phoenix House Bundaberg indicates that it is a non-government and registered charity organisation, established in 1995 and originally operating as the Bundaberg Area Sexual Assault Service and now with an expanded role providing a wide range of counselling and support services to people of all ages, for a variety of reasons, while still providing specialist support to people who have been impacted by sexual violence.[41] The information regarding Phoenix House Bundaberg indicates that it employs a range of disciplines inclusive of: Mental Health Accredited Social Workers, Social Workers, Accredited Counsellors, Qualified Mental Health Support Workers and several other disciplines and volunteers congruent with therapeutic counselling, education, and community support.
[41] ‘Who We Are’, Phoenix House (Web Page) <>
In a document, Statement of Permanency – Psychosocial Impairment, completed by Ms Madle on 10 August 2021, she reiterates that the Applicant has a history of psychotherapy treatment dating back to 28 April 2020.[42] Ms Madle states that there is no available and appropriate evidence-based clinical, medical, or other treatment that is likely to remedy the impacts of the Applicant’s disability related impairments. In relation to treatment details, Ms Madle states that early treatments focussed on re-engaging in hobbies the Applicant once enjoyed, and treatment strategies and tools grounded in cognitive behavioural therapy (CBT) and Dialectical Behaviour Therapy (DBT). Ms Madle stated that the Applicant continued to engage in psychotherapy and remained willing to implement interventions and has a need for continued therapeutic support.
[42] T Documents, T7.
In relation to treatment options, the Respondent contends that Ms Madle noted in January 2022 that “EMDR” (eye movement desensitisation and reprocessing) is likely to substantially relieve the Applicant’s impairment, however notes that “cost is a major barrier”.[43] The Respondent notes that Ms Madle subsequently stated on 22 February 2022[44] that the Applicant has exhausted all accessible treatment options to address her diagnosis and that opportunities for of some treatments (i.e. EMDR) have not been accessible to access and/or financial limitations.
[43] T Documents, T10.
[44] T Documents, T12.
With regard to the opinion provided by Ms Madle, the Tribunal is mindful that she has had considerable direct clinical contact with the Applicant and this is a factor which is appropriately accorded weight. However, her provisional registration as a psychologist is a factor to be weighed against the experience and qualifications of other professionals who have assessed or had clinical contact with the Applicant. The Tribunal is not satisfied weight should be given regarding Ms Madle’s opinion that there are no medical treatment options which are likely to remedy the impacts of the Applicant’s disability related impairments, as it is not apparent to the Tribunal that Ms Madle has the qualifications or experience to give an opinion more appropriately sought from a medical practitioner.
The Tribunal is satisfied that the information in the letters and other documents prepared by Ms Madle indicate that CBT and DBT interventions have been provided to the Applicant in a situation where there appears to have been therapeutic rapport established between the Applicant and Ms Madle. The Tribunal acknowledges Ms Madle’s opinion that the Applicant has a need for continued therapeutic support and considers this to reflect the purpose of ‘therapeutic support’ as opposed to ‘therapeutic treatment’ may be to ‘relieve or improve’ the impairments affecting the Applicant, rather than remedy them.
The Tribunal is satisfied that both CBT and DBT are types of intervention which can be regarded as ‘known and appropriate evidence-based treatment’ for the Applicant’s impairment. The Tribunal acknowledges Ms Madle’s opinion that CBT and DBT are not likely to remedy the impacts of the Applicant’s disability related impairments.

In her letter of 2 June 2022 Ms Madle provides further detail regarding the CBT, DBT and other types of treatment provided to the Applicant, including Interpersonal Therapy (IPT), psycho-education and trauma-informed supportive counselling (sexual abuse counselling).[45] The Tribunal is satisfied these are evidence-based and appropriate treatment for the impairments affecting the Applicant as a result of her psycho social disability.
[45] Letter of Clare Madle dated 2 June 2022.
Ms Madle also details the lack of substantive improvement in relation to the symptoms associated with the Applicant’s impairments as a result of the aforementioned treatment interventions and also information about intervention intensity. Ms Madle identifies emotional dysregulation, difficulty concentrating and focus, and difficulties associated with the Applicant’s historical sexual abuse including challenges of communication, impaired social skills and difficulty with emotional expression.[46]
[46] Ibid.
Of interest, Ms Madle states that the presence of these difficulties mean the Applicant would benefit from ongoing psychological support, which will assist her to improve skills in emotional regulation which is likely to decrease frequency and intensity of emotionally dysregulated behaviours and build capacity towards her goals.[47] In the view of the Tribunal, this opinion would appear somewhat inconsistent with opinion expressed by Ms Madle elsewhere as to there being no likely available and appropriate evidence-based clinical, medical, or other treatment to remedy the impacts of the Applicant’s disability related impairments. This may reflect Ms Madle’s view as to the Applicant’s goals being met through therapeutic support, rather than intervention to ‘remedy’ the impairments associated with her psychosocial disability. However in the view of the Tribunal this is not apparent from the currently available information.
[47] Ibid.
The Respondent notes that Dr Khan, from Headspace Bundaberg, who has been reviewing the Applicant since 28 July 2020, reports that the Applicant has trialled a number of medications and psychology treatments and that the local provider for EMDR was no longer accepting new patients due to high clinical load, and the Applicant “identified financial disadvantage as another barrier to accessing EMDR”.[48] The Respondent noted that Dr Khan considered the Applicant’s PTSD is likely permanent.[49]
[48] Reports dated 31 May 2022 and 29 June 2022.
[49] Respondent Updated SFIC, [27].
With respect to Dr Khan considering the Applicant’s PTSD is likely permanent, the Tribunal is mindful of the need to not focus on diagnosis, but rather the impairment affecting the Applicant resulting from PTSD and other factors influencing her psychosocial disability, and whether the impairments are permanent in the context of s 24(1)(b) of the NDIS Act. The Tribunal considers it unfortunate that there is a lack of detail in the information from Dr Khan as to the types of psychology treatments ‘trialled’ by the Applicant, or the outcome of those trials. The Tribunal is however satisfied that this second reference to the potential benefit to the Applicant from EMDR is an indicator that this type of intervention is a suitable treatment for the Applicant’s particular impairment. The Tribunal is satisfied that EMDR is a ‘known and appropriate evidence-based treatment’ for the Applicant’s impairment. It is however not known if EMDR would ‘ be likely to remedy’ some or all of the Applicant’s impairments, as the Applicant has not trialled this form of treatment. The Tribunal has given some weight to the opinion of Dr Khan, as a GP, who has treated the Applicant.[50]
[50] Dr Khan’s letter of 29 June 2022 indicates that he is a Fellow of the Royal Australian College of General Practitioners (FRACGP).
The Applicant has consulted, via video telemedicine, with Dr Batterham, Child and Adolescent Psychiatrist, on 3 February 2021, at which time Dr Batterham diagnosed the Applicant as suffering from PTSD.[51] The Tribunal has reviewed the letter prepared for the Applicant by Dr Batterham and notes that he was asked to provide a diagnostic opinion for Centrelink purposes and that Dr Batterham does not comment with regard to the suitability, availability or other factors relevant to possible treatment options to remedy the impairments associated with the Applicant’s mental psychosocial disability. Whilst there is reference to the Applicant also having a one off consultation with another, Dr Joshi. The Tribunal does not have the benefit of a report or other material from Dr Joshi.
[51] T Documents, T6.
The Respondent has written to the two Child and Adolescent Psychiatrists referred to by Dr Khan, namely Dr Michael Batterham and Dr Hiteshi Joshi, requesting they respond to a list of targeted questions regarding the Applicant.[52] Questions from this list which appear relevant to the issue of whether there are known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy impairments impacting the Applicant to which a psychosocial disability is attributable include:
3What, if any, treatments have you prescribed for the Applicant's Post-Traumatic Stress Disorder, Major Depressive Disorder and Anxiety?
4Have those treatments been successful or unsuccessful? If unsuccessful, please provide details of the treatment, the period over which it was trialled and the reason why it was unsuccessful?
5We understand that the Applicant has received psychotherapy since 28 April 2020 including Cognitive Behavioural Therapy and skills training for emotional regulation. Please provide a detailed treatment history to show how long she has taken these therapies and their outcomes.
6We understand the Applicant has been treated with medication, please provide a detailed treatment history to show what medications have been utilised, how long she has taken each medication and their outcomes.
7What is the expected outcome of the Applicant's current treatments? Is it likely to remedy the impairment? If not, what outcomes do you expect to see from the treatment?
8Further, we understand Eye Movement Desensitisation and Reprocessing Therapy has been advised to substantially improve the Applicant's psychiatric impairment. Do you agree with this assessment? Are there any additional barriers, aside from financial constraints which you consider inhibit the Applicant from undertaking this course of therapy?
9Is any additional treatment/ medical intervention/ medication available to the Applicant? If so, please indicate the likelihood that it would be able to alleviate the Applicant's impairments.
[52] Request for information from Dr Joshi and Dr Batterham, dated 1 June 2022.
In relation to answers to questions sought from two psychiatrists who have reviewed the Applicant, Dr Batterham and Dr Joshi, the Respondent notes responses as follows:
(a)The “Freudian Couch Specialists” (which is where Dr Joshi practises from) advised that as the Applicant has only been seen once, she would not be considered a client.[53]
(b)Dr Batterham responded to the request by stating that as he had only seen the Applicant once, 16 months ago, he feels that he is not suited to fill them out. He feels that as Applicant is applying for NDIS, that suggests her condition may have deteriorated since he saw her, so responding to these questions would be best done after a fresh assessment. As the Applicant’s application has been declined by NDIS, he suggested that the Applicant might benefit from seeing psychiatrist that specialises in workplace and medico-legal reports who could perform an up to date assessment and produce a report.[54]
[53] Email to Applicant’s Advocate from Headspace, dated 1 June 2022.
[54] Email to Applicant’s Advocate from Headspace dated 6 June 2022.
With respect to Dr Batterham and Dr Joshi, the Tribunal acknowledges that they hold specialist qualifications, as Child and Adolescent Psychiatrists, of particular relevance to understanding the impairments affecting young people such as those affecting the Applicant. However, the Tribunal is not persuaded there is information in the available evidence which would provide an indication of the opinion of either Dr Batterham or Dr Joshi with respect to whether there are suitable treatment options for the Applicant’s particular impairments, or as to whether any such treatments are available and accessible to the Applicant, in her particular circumstances, as a young person with limited financial resources of her living situation in regional Queensland.
The Tribunal is however satisfied that Dr Batterham has provided the opinion that a further assessment of the Applicant by a psychiatrist is warranted in order to respond to the targeted questions, relevant to the issue of treatment, in the letter sent to them by the Respondent. The Tribunal considers this is a recommendation that Dr Batterham has the qualifications to make and the Tribunal has placed weight on this recommendation.
In her report prepared in November 2021, Dr Emily Jacob, GP, stated that “all available and appropriate treatment options that are likely to improve the impact of [the Applicant’s] PTSD have been explored.”[55] The Tribunal is satisfied that this statement reflects the opinion of Dr Jacob, but considers it unfortunate there is not more detail as to what available and appropriate treatment options have been explored. Notwithstanding this, the Tribunal has given some weight to the opinion of Dr Jacob, as a GP who has treated the Applicant.
[55] T Documents, T9.
The Respondent notes that Dr Karen King, GP, completed an Evidence of psychosocial disability form on 5 October 2022 and in that form confirms that they had been treating the Applicant since August 2022. Dr King did not in that form identify any further treatments likely to remedy the impairment.
In a letter, prepared in June 2023, Dr King reports that she has treated the Applicant for one year at Branyan Clinic since 15 June 2023 and that her diagnosed Complex PTSD and Borderline Personality Disorder are “permanent conditions which have been fully treated and all options have now been exhausted”.[56] Dr King reports that the following treatments were trialled, but were ineffective: psychiatry, psychology, Prazosin, Fluoxetine, Sertraline, Mirtazapine, Venlafaxine and Amitriptyline.
[56] Letter of Dr King, dated 13 June 2023.
The June 2023 letter from Dr King details medication treatment which have been prescribed for the Applicant. There is however a lack of detail with regard to the psychiatry and psychology interventions that Dr King regards as ineffective. On the basis of the evidence currently before the Tribunal, it is apparent that the Applicant has had one-off assessment consultations with two child and adolescent psychiatrist, neither of which would in the view of the Tribunal constitute treatment interventions. Notwithstanding this, the Tribunal has given some weight to the opinion of Dr King, as a GP who has treated the Applicant.
As to the issue of whether there are no appropriate evidence-based clinical, medical and other treatments within the meaning of r 5.4 of the Access Rules, the Respondent drew the attention of the Tribunal to the report of Dr Grant, where in relation to further assessment and treatment recommendations it states:[57]
[57] Report of Dr Grant, dated 12 August 2022, pp 18-20.
To further assess [the Applicant] and plan future treatment and rehabilitation I believe she would benefit from a more thorough and complete psychological and psychiatric assessment as a patient of a comprehensive psychiatric assessment and treatment service. Her needs in my view are firmly within the mental health services domain rather than services addressing intellectual or physical disabilities. Ideally, she should have access to the following:
1A comprehensive assessment by a psychiatrist skilled in adolescent and young adult mental health. This would need a number of in person interviews over time to make a full assessment and get a full history.
2A thorough assessment by a skilled neuropsychologist to ensure that there are no significant intellectual or learning disability issues involved and to screen out other aspects such as any traits overlapping with other neurodevelopmental issues which might require more specific therapy.
3Engagement in a treatment programme for posttraumatic stress disorder (PTSD) with the involvement of psychiatrists, psychologists, and appropriate medications that might assist.
4Engagement in a psychiatric rehabilitation service to assist [the Applicant] in developing clearer understandings of her mental health issues, her personality issues, and relationship issues. [the Applicant] is a young woman not yet fully out of her teens who has many years of potential development and change ahead of her. She is still living in a dependent relationship with her mother and needs assistance in gaining strength, resilience, and independence. The focus should be on her potential to change and develop her skills, gaining confidence, and the ability to develop a social network and appropriate relationships. It is not appropriate in my view for her problems to be seen as permanent and unchangeable and not responsive to potential treatments.
Many young women who are emerging from the kind of background that [the Applicant] has experienced and who have been severely sexually abused, need extensive assessment, treatment, and rehabilitation to overcome the effects of that abuse and those early life experiences.
Such processes need to start with a detailed diagnostic assessment and treatment plan under the auspices of a multidisciplinary mental health service.
As to whether there are any other appropriate evidence-based treatment options, including alternative medications if applicable, available to address the Applicant’s impairments, Dr Grant states:[58]
[The Applicant] would benefit from access to an appropriate psychiatric assessment, treatment, and rehabilitation team for a thorough evaluation of her mental health needs. After a thorough assessment she could well benefit from specific therapies addressing her posttraumatic stress disorder (PTSD) and Personality Disorder needs. Those treatments might be delivered by a psychiatric multidisciplinary team including a psychiatrist, psychologist, and social worker. Treatment is likely to be needed over a prolonged period of time, certainly many months and probably years, and would occur along a number of treatment modalities including some specific medications, specific psychological therapies, probably group therapies and various means of assisting with social and vocational rehabilitation. [The Applicant] is a young woman who is yet to emerge from her teens and her personality development has not yet been completed.
[The Applicant] has potential to respond appropriately at this stage in her life and she has many years in which to develop better control of her symptoms and to work towards her life goals. She would benefit from early application of such comprehensive assessment and treatment.
[58] Ibid, pp 22-23.
As to whether there are other treatments, supports, or intervention likely to increase the Applicant’s functional capacity and independence, Dr Grant states:[59]
As indicated, [the Applicant] in my opinion needs a comprehensive psychological, psychiatric, and psychosocial assessment to help her develop appropriate treatment plan to overcome her problems over time. Treatment of post-traumatic stress disorder (PTSD) and personality disorder is not always easy and requires attention over the medium to longer term with the assistance of appropriate psychiatric and mental health personnel.
In my opinion, [the Applicant’s] needs are firmly within the health and mental health domains rather than disability domains. I do not believe that it would be appropriate for her to fall within the ambit of the National disability Insurance Scheme (NDIS). Rather, she should be undergoing appropriate assistance and rehabilitation within the mental health domain, with the likelihood that she will improve and I expect that she has the capacity to change, mature, and develop in terms of her overall life skills, relationships, and social integration.
[59] Ibid, pp 29-30.
The Applicant contends that Dr Grant has not only agreed with the diagnosis of PTSD as correct, but has increased it to Complex PTSD, and made an additional diagnosis of “A mixed Personality Disorder with immaturity, confusion regarding [the Applicant’s] identity, dissociative features; a propensity for self harm, and unstable affects”.[60] The Applicant further contends that “Multiple reports from various specialists across multiple fields, who have all spent more time talking to [the Applicant], even the ones who saw her once, then the approximate 42-minute video call Dr Grant had, state the diagnosis’s as “Permanent” in nature”.[61]
[60] Applicant’s Statement in Reply, dated 6 July 2023.
[61] Ibid.
With respect to these contentions, the Tribunal considers they are unduly focussed on diagnosis rather than impairment and that whilst it is acknowledged weight should be accorded to reliable information and opinions provided by the range of health professionals whose evidence is available to the Tribunal, the extent of weight and which evidence or opinion the Tribunal prefers is a matter for the Tribunal to decide.
The Tribunal considers the opinions provide by Dr Grant are well reasoned and that he has explained the basis on which he holds the opinions expressed. The Tribunal considers Dr Grant to have raised a number of salient points with regard to the issue of whether the Applicant’s impairments are permanent within the meaning of s 24(1)(b) of the NDIS Act. In particular, the Tribunal notes that Dr Grant expresses the opinion that the Applicant would benefit from a more thorough and complete psychological and psychiatric assessment as a patient of a comprehensive psychiatric assessment treatment service, including assessment by a psychiatrist skilled in adolescent and young adult mental health. The Tribunal notes the Dr Batterham, a child and adolescent psychiatrist, also opined that the Applicant would benefit from a further psychiatric assessment.
Whilst the Tribunal has given weight to the information and opinions apparent in the reports, letters and documents provide by Ms Madle and Doctors Jacob, Khan and King, it is satisfied that it is appropriate to prefer the opinion of Dr Grant with regard to the need for further specialist assessment of the Applicant.
The Tribunal has had regard to a report prepared by Cleone Heath, Counsellor, in October 2022, who states that the Applicant and her family originally accessed her services as a family and relationship counsellor in 2019 and that after several sessions the family was referred to Ryan Nielson, a centre care NDIS support coordinator who assisted the Applicant apply for access to the NDIS.[62] Ms Heath states that the Applicant attended weekly sessions for approximately one year but showed no improvement during those sessions and as a consequence was referred to headspace for further assessment and treatment.
[62] Report of Cleone Heath, B.A. Psych, Dip Counselling, ACA level 4, Cleone’s Counselling, dated 16 October 2022.
Ms Heath provides comment on the report of Dr Grant and indicates a view that the opinions provided by Ms Madle and Dr Khan should be preferred over that of Dr Grant on the basis that Dr Grant had one session conducted online when the Applicant was in her bedroom at home where she feels safe and that the Applicant has had more extensive chemical contact with Ms Madle and Dr Khan.[63]
[63] Ibid.
Ms Heath recommends that the Applicant needs the support of a multidisciplinary team: including but not limited to a psychiatrist, psychologist, counsellor, occupational therapist, social worker, and GP. Ms Heath states that the Applicant needs an immediate and intensive intervention, and if she does not get this she will continue to deteriorate and that from her perspective based on her training and experience the Applicant has a permanent condition and that if treatment is denied to the Applicant, there will be a further decline.[64]
[64] Ibid.

The Tribunal has not placed weight on the opinion of Ms Heath in relation to the report of Dr Grant, as the weight given to the material before the Tribunal is a matter for the Tribunal to determine. With respect to the recommendations made by Ms Heath regarding the Applicant’s treatment needs, the Tribunal acknowledges these may well be as described by Ms Heath. However, a person having significant acute needs for treatment for symptoms associated with mental health conditions does not in and of itself establish the person meets required access criteria to become a participant of the NDIS. This is because the NDIS is a scheme to assist a person address impairments associated with disability and does not replace treatment services more appropriately and effectively provided through health services.[65]
[65] Access Rules r 6.1 – “A person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is more appropriately funded or provided through another service system (service systems is defined in paragraph 8.4) rather than the NDIS.”
Rule 5.6 of the Access Rules states that an impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. Rule 5.6 also states that the impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
The Tribunal considers r 5.6 to be potentially applicable to the Applicant’s circumstances and is mindful that if the Tribunal was to find that the Applicant may require medical treatment and review before a determination about the whether the impairment is permanent or likely to be permanent can be made, it would result in the Applicant not meeting the access requirements to become a participant of the NDIS, as unlike the Operational Guidelines, the Access Rules are not a matter where the Tribunal has discretion to not apply them if there are cogent reasons not to do so.
The question of the availability of appropriate treatment is relevant to the Tribunal’s consideration as to whether further medical treatment and review is required before a determination about whether the impairment is permanent or likely to be permanent.
The Tribunal notes that evidence-based treatments which are discussed in the available evidence include: medications, CBT, DBT, IPT, psycho-education and trauma-informed supportive counselling. As discussed elsewhere in these Reasons, the Tribunal is satisfied that these are evidence-based treatments and whilst not all are specifically mentioned by an Australian medical practitioner, the Tribunal is satisfied that the views of a health professional working in a service offering support to survivors of sexual assault and domestic violence can provide opinions with regard to treatment options which the Tribunal will be open to.
The Tribunal does however accept Dr Grant’s opinion that further assessment by a psychiatrist skilled in adolescent and young adult mental health and assessment by a skilled neuropsychologist is recommended for the Applicant.[66]
[66] Report of Dr Grant, dated 12 August 2022, p 19.
The Respondent contends that Dr Grant was provided with a list of proposed treatment providers that could possibly provide the assessment and treatment he had recommended in his report, recommended by Dr Gant in the Bundaberg region.[67] By way of response, Dr Grant provided a supplementary report dated 28 February 2023 in which he acknowledged that he was not familiar with any of the services in the Bundaberg area, including the presence of practising psychiatrists. The Respondent notes that Dr Grant clarified his recommendations as follows:[68]
·[The Applicant] is not in my opinion a candidate for immediate inpatient therapy.
·The starting point for [the Applicant] should be further comprehensive assessment by a specialist psychiatrist and following that assessment psychiatrists would arrange further investigations or management programmes, as necessary. The psychiatrist would be able to prescribe necessary medications.
·A treating psychiatrist would then be able to organise and appropriately experience neuropsychologist to assess [the Applicant] as I have recommended to exclude underlying intellectual or learning disability issues that might need to be specifically addressed.
·The psychiatrist may feel that [the Applicant] can be adequately treated for Posttraumatic Stress Disorder (PTSD) by the psychiatrist themselves or that psychiatrist could arrange referral to a specific service for people with Posttraumatic Stress Disorder (PTSD). Such a service would not be available in the Bundaberg and Bargara area and she would probably need to go at least as far as Brisbane to access such a service.
·Further psychiatric rehabilitation over a longer period of time could be facilitated by community-based service staffed by mental health workers, social workers or psychologists. Engagement with those services could be facilitated by the treating psychiatrist.
[67] Letter to Dr Grant, dated 21 February 2023.
[68] Supplementary Report of Dr Grant, dated 28 February 2023, p 5.
The Respondent contends that the first step required for the Applicant is to have a comprehensive assessment by psychiatrist and it is only after that assessment that a decision on whether a neuropsychologist (to exclude intellectual or learning disability issues), direct ongoing treatment from a psychiatrist or PTSD service is required.[69]
[69] Respondent Updated SFIC, [39].
The Respondent contends that whilst there is limited evidence about the availability of psychiatrists in the Bundaberg area, it must be accepted that suitable psychiatrists are prevalent in the Brisbane area, which is a 4 ½ hour drive from the Applicant’s home.[70] The Tribunal is not of the view that the contention that suitable psychiatrists are prevalent in the Brisbane area must be accepted, as there is not evidence before it to establish this is the case. However, in the view of the Tribunal there is also not evidence that the Applicant could not access a suitable psychiatrist and related mental health services within reasonable proximity of her home. In forming this view the Tribunal does not regard Dr Grant to have provided a definitive view on this factor and has rather expressed a lack of familiarity of services in the Bundaberg area. In relation to Dr Grant’s comment that a specific service for people with PTSD would not be available in the Bundaberg and Bargara area and that the Applicant would probably need to go at least as far as Brisbane to access such a service, the Tribunal understands this comment to be within the context of the necessity for such a referral would become apparent after an assessment by a psychiatrist, who may be accessed by the Applicant within a reasonable proximity of where she lives.
[70] Ibid.
The Respondent contends that there is no evidence to suggest that the Applicant is in any way limited in her ability to travel and that it is not unreasonable or overtly burdensome to expect the Applicant to travel to Brisbane for a specialist appointment. The Respondent contends that the region of Bundaberg is not the type of “remote” location that Justice Mortimer discussed in Davis and referred the Tribunal to the findings in XMFS and National Disability Insurance Agency [2022] AATA 568:[71]
[…] I am not satisfied that the requirement to drive for two hours from a small regional town to a public hospital equates to treatment not being ‘available’. In particular, I note it is not unusual in Australia for people to drive from regional areas to larger cities to access specialist medical treatment and a drive time of two hours to access such treatment could occur even within areas of a large city such as Sydney.
[71] XMFS and National Disability Insurance Agency [2022] AATA 568, [123].
With respect to the Respondent’s contention that it is not unreasonable or overtly burdensome to expect the Applicant to travel to Brisbane for a specialist appointment, the Applicant contends that:[72]
[…] comparing a 2hr Drive and access to specialists in Sydney, to that of a 4.5hr drive to access Specialists in Brisbane which is more than double the time frame, would also likely incur costs for Accommodation and you cannot be expected to make a 9hr return trip plus the waiting time and the initial assessment itself pushing the time frame including rest stops and food breaks to exceed 12 hours and be quite a cost prohibitive venture.
[72] Applicant Statement in Reply to Respondent’s Updated SFIC, dated 2 April 2023, [39].
The view of the Tribunal with regard to this factor is that there is evidence that the Applicant suffers from symptoms associated with PTSD and anxiety, especially in situations where she is interacting with people she may not be familiar with. This would appear to the Tribunal to be an impairment that limits the Applicant’s ability to travel and would make it unreasonable to travel to Brisbane for regular consultations with a psychiatrist or other relevant mental health professional. The Tribunal would however differentiate travel which may be considered reasonable for a specialist assessment, which may involve one or a few appointments, from regular consultations in which treatment interventions are offered. The Tribunal is satisfied that it may not be unreasonable for a person to travel for the time it would be required by the Applicant, for the purpose of an assessment. As to consultations or appointments of a more regular nature, the Tribunal does not consider there is evidence before it which establishes the Applicant could not have access to mental health professionals within a reasonable proximity of her home, if referral to such services was arranged and facilitated, as recommended by Dr Grant, by a consultant psychiatrist.
In relation to whether the proposed treatment is affordable, the Respondent contends that there is no evidence as to the likely cost of such a psychiatric assessment, and whether the Applicant is able to afford it and that in the absence of such evidence the Tribunal should not be satisfied that the above psychiatric input, as recommended by Dr Grant, is not available due to affordability.[73]
[73] Respondent Updated SFIC, [40].
With respect to the Respondent’s contentions that that further treatment and assessment recommended by Dr Grant is available, the Applicant contends that neither the Respondent nor the Registry requested proof of the Applicant’s ability to afford treatment and requested the opportunity to provide evidence in relation to this factor if detail of the type of evidence required was specified.[74]
[74] Applicant Statement in Reply, dated 2 April 2023, [40].
In their Statement in Reply to Respondent’s Updated SFIC the Applicant makes comment about the financial circumstances of the Applicant and costs associated with her having treatment consultations with a Psychiatrist in Brisbane.[75] With respect to these factors the Applicant states:
The Applicant is classed as lower socioeconomic and is on payments such as Newstart and the family on Carers payments and the Disability Pension. Quite different from affording such costly expensive treatments by Psychiatrists in Brisbane, who do not offer Medicare, or bulk billing, co and gap payments, in addition to travel and Accommodation. This would likely include $2,000 plus assessment, costs such as $200+ a Night, 1000km return trip meaning hundreds in fuel. So, the Applicant fervently rejects the notion of having affordability.
[75] Ibid.
Due to the relevance of affordability in respect of the Applicant’s ability to access a psychiatrist, the Tribunal invited further submissions from the parties with respect to this issue. By way of response, the Applicant provided the Tribunal with a fact sheet regarding the costs to see a psychiatrist in Australia from the Royal Australian and New Zealand College of Psychiatrists, which whilst prepared in 2019, in the view of the Tribunal provides useful information, including that:
·A Medicare rebate is available if a person is eligible for Medicare and has a valid referral.
·Some psychiatrists pay bulk Bill, meaning Medicare covers the cost of the appointment and the patient has no out-of-pocket fee.
·If a person sees a psychiatrist in a public hospital or community health service they generally will not have to pay.
·Mental health treatment plans do not cover appointments with a psychiatrist but can provide Medicare rebate sessions for psychological treatment with sessions able to be provided by psychologists, mental health trained GPs, registered social workers or other approved professionals.
·Primary health network mental health care services provide a range of services for people with a diagnosed mental illness, which may include access to a psychologist, nurse, occupational therapist, social worker or Aboriginal and Torres Strait Islander health worker. Services may be available if the person is in hardship, living in a remote area, or has suffered serious trauma.
·As of June 2019, the Medicare safety net provided expert rebates once a person’s out-of-pocket medical costs reach $470 in a calendar year and more rebates if a person is on a concession card.
·As of June 2019 an assessment and GP report prepared by a psychiatrist may cost $440 of which a Medicare rebate of $384.80 would be available.
Upon reviewing the fact sheet issued by the Royal Australian and New Zealand College of Psychiatrists, the Tribunal is satisfied services from a psychiatrist may come at a cost to a person referred, or may be available at no cost to that person, either through their accessing a psychiatrist in the public health system, or through the psychiatrist bulk billing through the Medicare system. The Tribunal acknowledges the Applicant has provided costs associated with treatment by a psychiatrist or psychologist which may be more current than those in the Royal Australian and New Zealand College of Psychiatrists fact sheet they filed with the Tribunal.[76] However the Tribunal does not consider this disputes the possibility of bulk billing through the Medicare system for psychiatric and psychology services.
[76] Applicant’s Statement in Reply, dated 6 July 2023.
As to the Applicant’s financial circumstances, the statement of financial circumstances form completed by the Applicant indicates her fortnightly income consists of gross employment income of $506.24 and a Centrelink payment of $547.40, providing a cumulative fortnightly income after tax of $1039.64. After identified expenses are paid it is indicated the Applicant has around $141.48 per fortnight available for other discretionary expenditure.
Further comment has been received from the Applicant contending that the Applicant does not work and that the reference to income from work in the statement of financial circumstances form was income for one period only.[77] The Tribunal notes that the regular fortnightly expenses in the statement of financial circumstances form add up to $785 and possibly a further $60, which in conjunction with a residual amount of $141 going into savings provides a cumulative amount which is clearly in excess of the reported fortnightly income received by the Applicant from her Centrelink payment. Further to this, there is a reference to the Applicant providing more money than $300 per fortnight to her mother if required “from her work pay.”[78] As a consequence the Tribunal does not consider all of the information in the statement of financial circumstances form to be reliable, but is satisfied that the Applicant is on a low income.
[77] Email from Ryan Nielsen, dated 1 June 2023.
[78] Applicant’s Statement in Reply, dated 6 July 2023.
As to whether the proposed treatment is likely to remedy impairment affecting the Applicant as a result of the psychosocial disability, the Respondent notes that consistent with Davis, this should be understood to mean something approaching a removal or cure of the impairment.[79] The Respondent refers to Dr Grant’s comments in his first report that he would expect “that with treatment [the Applicant] would gradually make progress in achieving insight into the effects of her past traumas and life issues, develop more confidence, more resilience, and work towards developing her goals in employment and relationships”.[80] The Respondent contends that Dr Grant’s opinion is to the effect that, with time and treatment, it is likely that the Applicants impairments will improve to a level that approaches a removal of the impairment.
Conclusion on s 24(1)(b)
[79] Respondent Updated SFIC, [41].
[80] Report of Dr Grant, dated 12 August 2022, p 23.
In the particular circumstances of this matter the Tribunal accepts that the Applicant has one or more impairments to which a psychosocial disability is attributable. However the Tribunal is not satisfied that it is established on the basis of the currently available information, the impairment or impairments are, or are likely to be, permanent. This is not to say the Applicant is not impacted significantly by the symptoms associated with traumatic experiences which she has been subjected to and the mental health conditions which appear to have developed as a sequela of her childhood trauma.
The Tribunal considers r 5.6 of the Access Rules are applicable to the Applicant’s circumstances and that medical treatment and review is required before a determination can be made about whether the impairment is permanent or likely to be permanent.
The Tribunal also considers that r 5.4 of the Access Rules are applicable to the Applicant’s circumstances and that a finding that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the Applicant’s impairment cannot be made on the basis of the information which is currently before the Tribunal.
In reaching the conclusion it has, the Tribunal is mindful of r 5.5 of the Access Rules, whereby an impairment may be permanent, notwithstanding that the severity of its impact on the functional capacity of the Applicant may fluctuate or there are prospects that the severity of the impact of the impairment on the Applicant’s functional capacity, including their psychosocial functioning, may improve. However, until such time as there is information from the further medical treatment and review that has been recommended by Dr Grant is available, the Tribunal is not satisfied a finding that the impairment is permanent on the basis of the provisions of r 5.5 are possible.
As the Tribunal has determined that neither r 5.4 or r 5.6 of the Access Rules are satisfied and it follows that the requirements of paragraph 24(1)(b) of the Act are not met.
As has been discussed in an earlier section of this decision, each of the five paragraphs of subsection 24(1) of the Act are threshold requirements which need to be met. The consequence of paragraph 24(1)(b) not being met is that the Applicant does not satisfy section 24. The Tribunal did not therefore consider it necessary to consider the remaining criteria in section 24.
As the Applicant has not met required criteria in section 24, her access request cannot be granted through meeting the disability requirements outlined in the Act.
The Early Intervention Requirements
The early intervention requirements are set out in section 25 of the Act:
25 Early intervention requirements
1A 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 to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)   is a child who has developmentaldelay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)     mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)    preventing the deterioration of such functional capacity; or
(iii)   improving such functional capacity; or
(iv)   strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
1AFor the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
2The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
3Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)as part of a universal service obligation; or
(b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

Section 25, like s 24, requires satisfaction of each of the criteria identified in paragraphs 25(1)(a), (b) and (c).
As the Tribunal has determined the evidence currently before it is insufficient to be satisfied that the Applicant has intellectual, cognitive, neurological, sensory or physical impairments, that are, or are likely to be, permanent; or has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent, the requirements in subparagraphs 25(1)(a)(i) and 25(1)(a)(ii) are not satisfied. Subparagraph 25(1)(a)(iii) is not applicable to the Applicant’s circumstances and it therefore follows that paragraph 25(1)(a) is not met.
The consequence of paragraph 25(1)(a) not being met is that the Applicant cannot become a participant in the NDIS through meeting the early intervention requirements outlined in section 25.
Conclusion
As discussed in these reasons the Tribunal is not satisfied that the Applicant’s impairments are not permanent within the meaning of the provisions of the Act. Accordingly, as she does not meet the disability requirements and the early intervention requirements of the legislation, the Applicant is not qualified to become a participant in the NDIS.
Accordingly, for the reasons stated above, the reviewable decision to refuse the Applicant’s application for access to the NDIS is affirmed.
The Tribunal notes that the Applicant is under 65 years of age and that it is open to her to make a further request to become a participant of the NDIS and in this circumstance where she was to do so.
Decision
The Tribunal affirms the decision under review.

I certify that the preceding 143 (one hundred and forty-three) paragraphs are a true copy of the reasons for the decision herein of Member D. Barker

.....................................[SGD]...................................
Associate
Dated: 23 October 2023

Date(s) of hearing: 14 April 2023

Date final submissions received: 6 July 2023

Advocate for the Applicant: Rhino Support Coordination

Solicitors for the Respondent: HWL Ebsworth Lawyers

Date(s) of hearing:	14 April 2023
Date final submissions received:	6 July 2023
Advocate for the Applicant:	Rhino Support Coordination
Solicitors for the Respondent:	HWL Ebsworth Lawyers