Demirtas and National Disability Insurance Agency - [2024] AATA 3306

Demirtas and National Disability Insurance Agency [2024] AATA 3306 (13 September 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/10277
Re:Tom Demirtas
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member A. C. Williams
Date:13 September 2024
Place:Hobart

The Tribunal affirms the Decision Under Review not to grant the Applicant access to the National Disability Insurance Scheme, because the Applicant does not meet the access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’). The Tribunal is not satisfied that he meets either the “disability requirements” under s 24 or the “early intervention requirements” under s 25 of the NDIS Act.
.................[sgn].......................................................
Member A. C. Williams
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) are met – “disability requirements” under s 24 – “early intervention requirements” under s 25 – Applicant has disability arising from various physical and psychosocial impairments – back, neck and shoulder issues – Post Traumatic Stress Disorder –whether impairments are, or likely to be, permanent – whether impairments have resulted in substantially reduced functional capacity in any one of the six prescribed activities – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
G v Minister for Home Affairs [2019] FCAFC 79
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
Ray v National Disability Insurance Agency [2020] AATA 3452
Secondary Materials
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Explanatory Memorandum, National Disability Insurance Bill 2012 (Cth)
National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 28 September 2023)
REASONS FOR DECISION
Member A. C. Williams
13 September 2024
INTRODUCTION

This application is about whether the Applicant, Mr Tom Demirtas, should be granted access as a participant in the National Disability Insurance Scheme (‘NDIS’). Mr Demirtas seeks review of a decision made on 26 June 2021 by a “reviewer” under sub-s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) (‘Decision Under Review’).[1] This decision confirmed an earlier decision by the Respondent, the National Disability Insurance Agency (‘NDIA’), not to grant access to Mr Demirtas as a participant in the NDIS.
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘TD’).
The Administrative Appeals Tribunal’s (‘Tribunal’) jurisdiction arises under s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), operating in conjunction with

s 103 of the NDIS Act.
For the reasons set out below, the Tribunal affirms the Decision Under Review because it is not satisfied that Mr Demirtas meets the access requirements under s 21 of the NDIS Act.
BACKGROUND
Mr Demirtas is a married man in his mid-50s. He lives with his wife, Meliha Demirtas in a Melbourne suburb. Mr Demirtas has two adult sons who also live in the locality. Mr Demirtas has several physical conditions and mental health issues. He receives the Disability Support Pension (‘DSP’) and has been unable to work for many years.
History of impairments
Mr Demirtas relies upon the following impairments in seeking access to the NDIS under either s 24 or 25 of the NDIS Act:
(a)physical impairments resulting from:
(i)severe lumbar disc prolapse and chronic lower back pain; and
(ii)cervical spine injury and cervical foraminal stenosis;
(iii)shoulder tear;
(iv)diabetes; and
(v)coronary artery disease
(b)impairments to which a psychosocial disability is attributable, resulting from Post Traumatic Stress Disorder (‘PTSD’).
The Tribunal will refer to the impairments described in:
(a)paragraph [5] collectively as the Claimed Impairments.
(b)paragraph [5(a)] collectively as the Claimed Physical Impairments; and
(c)paragraph [5(b)] collectively as the Claimed Psychosocial Impairments.
REQUEST FOR ACCESS TO THE NDIS
Mr Demirtas made a verbal request to the NDIA, under s 18 of the NDIS Act, to be granted access as a participant in the NDIS. This request accompanied by the following document given to the NDIA:
(a)a NDIA Access Request – Supporting Evidence Form, completed by Dr Mustafa Ahmet, General practitioner from Brunswick, Victoria, dated 27 October 2022.[2] Dr Ahmet stated in this form that Mr Demirtas needed assistance with mobility and self-care (with showering) and required modifications to his bathroom.
[2] ‘Joint Hearing Tender Bundle’, Submission in Re Demirtas and National Disability Insurance Agency, (‘JTB’) 23–29.
Dr Ahmet described Mr Demirtas’ impairments in the 2022 Supporting Evidence Form as impairments attributable to:
(a)Severe lumbar disc prolapse and recurrent severe pain;
In the Supporting Evidence Form, Dr Ahmet indicated that Mr Demirtas had functional impairments in his mobility (in that he experienced pain when showering and needed bathroom modifications) and self-care, as his current bathroom configuration caused pain in his shoulder and lumbar region.
Decision under review and application for review by this Tribunal
On 14 November 2021, a delegate of the Chief Executive Officer of the NDIA (‘CEO’) decided not to grant Mr Demirtas access to the NDIS (‘Original Access Decision’), on the basis that he did not meet the access criteria set out in s 21 of the NDIS Act, because he did not satisfy:
(a)the “disability requirements” under s 24 (specifically, s 24(1)(b), which requires Mr Demirtas to have an impairment that is permanent, or likely to be permanent); or
(b)the “early intervention” requirements under s 25 of the NDIS Act.[3]
[3] TD (n 1) T11/61–65.
On 15 November 2022, Mr Demirtas sought an internal review of this decision by a “reviewer” of the NDIA under s 100(6) of the NDIS Act.[4]
[4] Ibid T12/66.
On 29 November 2021, the reviewer confirmed the Original Access Decision, being the ‘Decision Under Review' in these proceedings.[5]
[5] Ibid T2/12.
On 19 December 2022, Mr Demirtas sought review of this decision by the Tribunal under s 103 of the NDIS Act.
EVIDENCE AND SUBMISSIONS
The Tribunal conducted a substantive hearing over two days on 3 and 4 July 2023. Mr Demirtas represented himself and Ms Buxton of counsel, instructed by HWL Ebsworth Lawyers, appeared on behalf of the NDIA.
The Tribunal admitted into evidence at the hearing a Joint Hearing Tender Bundle (‘JTB’) including the documents listed in the annexure to these reasons.
At the hearing, the following witnesses were called to give evidence:
a)Mr Demirtas
b)Mrs Demirtas
c)Dr Mustaf Ahmet (Mr Demirtas’ GP)
d)Ms Ira Gauvin (Independent Medical Examiner and Occupational Therapist).
At the conclusion of the substantive hearing, the parties were provided with additional time to provide written closing submissions. These were received by the Tribunal on 22 July 2024.
LEGISLATIVE FRAMEWORK
Section 21(1) of the NDIS Act provides that a person satisfies the access criteria if they meet:
·the “age requirements” under s 22;
and, at the time of considering the access request;
·the “residence requirements” under s 23 of the NDIS Act; and the “disability requirements” under s 24 (as set out in paragraph [34] below) or the “early intervention requirements” under s 25 (as set out in paragraph [36] below).
The disability requirements are contained in section 24 of the NDIS Act and provide as follows:
(1)  A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)     communication;
(ii)    social interaction;
(iii)   learning;
(iv)   mobility;
(v)    self - care;
(vi)   self - management; and
(d) the impairment or impairments affect the person's capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime.
(2)  For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.
(3)  For the purposes of subsection  (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
(4)  Subsection (3) does not limit subsection (2).
The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
The early intervention requirements are contained in section 25 of the NDIS Act and provide as follows:
1.A person meets the early intervention requirementsif:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent;
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent;
(iii)is a child who has developmentaldelay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or;
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Likewise, the requirements of s 25 of the NDIS Act are cumulative and all criteria must be met.
Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘the Access Rules’).
The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The relevant guidelines in this review are the Becoming a Participant - Applying to the NDIS guidelines (‘the Access Guidelines’).
There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[6] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[7], the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation, however they should not be bound by it. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection,[8] where Mortimer J (as her Honour then was) held:
‘Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it…’
‘Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Mrs Richards meets the disability requirements or the early intervention requirements…’ [9]
[6] G v Minister for Home Affairs [2019] FCAFC 79 [18].
[7] [1979] 24 ALR 577 [590].
[8] [2018] FCA 1229.
[9] Ibid [171].
Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Mr Demirtas meets the disability requirements or the early intervention requirements.
Whether Mr Demirtas meets the disability requirements or the early intervention requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a ‘fact-finding task’,[10] with a relatively high degree of precision and be positively satisfied.[11]
[10] National Disability Insurance Agency v Davis [2022] FCA 1002 [42].
[11] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 [55] cited in Re Schwass and National Disability Insurance Agency [2019] AATA 28 [29]; National Disability Insurance Agency v Davis [2022] FCA 1002 at [61].
MR DEMIRTAS’ CONTENTIONS
Mr Demirtas contends that his evidence satisfies both the disability requirements and the early intervention requirements in respect of one or more of the Claimed Impairments.
Mr Demirtas relies upon his physical impairments arising from his Claimed Physical Impairments. Ms Demirtas further relies upon a psychosocial impairment arising from his one or more of the Claimed Psychosocial Impairments.
THE AGENCY’S POSITION
The NDIA accepts that Mr Demirtas meets both the “age requirements” and “residence requirements” under ss 22 and 23 of the NDIS Act, respectively. This was not in contest and the Tribunal finds accordingly.
The Agency’s position in relation to the disability requirements was confirmed at the hearing and is as follows:
The Agency accepts that Ms Demirtas has a physical impairment due to:
·Severe lumbar disc prolapse and chronic lower back pain;
·Cervical spine injury and cervical foraminal stenosis;
·Shoulder tear.
The Agency accepts that Mr Demirtas has a psychosocial impairment due to:
·PTSD.
The Agency does not accept that Mr Demirtas has a disability attributable to impairments resulting from:
·Diabetes and coronary heart disease.
The Agency does not accept that the criteria in section 24(1)(d) has been established by the evidence, given the cumulative nature of the disability requirements and that Mr Demirtas has no permanent impairments. However, the Agency further noted that in the event the Tribunal reaches an alternative view, it was prepared to accept that Mr Demirtas’ social and economic participation is affected by his impairments for the purposes of
s 24(1)(d).
The Agency does not accept that Mr Demirtas’ impairments:
·are permanent or likely to be permanent within the meaning of s 24(1)(b) of the NDIS Act;
·result in a substantially reduced functional capacity for him to undertake one or more of the activities within the meaning of s 24(1)(c) of the NDIS Act;
·affect his capacity for social and economic participation within the meaning of
s 24(1)(d) of the NDIS Act; and,
·are likely to require support under the scheme for his lifetime, within the meaning of s 24(1)(e) of the NDIS Act.
The Agency’s position in relation to the early intervention requirements was as follows:
The Agency does not accept that Mr Demirtas’ meets the early intervention requirements because:
·the current evidence does not demonstrate the provision of early intervention supports are likely to benefit the Applicant by reducing his future needs for support. The evidence does not address any early intervention supports required by the Applicant nor any outcomes to be achieved in relation to his functional capacity, as required under s 25(1)(b);
·the evidence available does not indicate that early intervention supports are likely to benefit the Applicant by achieving one or more of the outcomes listed in s 25(1)(c). There is no indication as to what benefits may or may not be experienced from receiving early intervention supports; and
·there is a lack of any evidence to support the view that early intervention supports are most appropriately funded through the NDIS as required by s 25(3).
The Agency stated that Dr Ahmet indicated in the Access Request - Supporting Evidence Form, dated 27 October 2022, that the provision of early intervention supports will alleviate the impact on functional capacity, prevent deterioration of functional capacity and improve functional capacity, and provides the following details of the early intervention support: 'Bathroom - needs renovation/medication to allow for larger & safer shower'.[12]
[12] JTB (n 2) 26.
The Respondent contends that bathroom renovations are not early intervention in nature and there is no evidence to demonstrate how such a support would be likely to reduce the Applicant's future needs for supports in the ways contemplated by s 25(1)(c).
WHAT DOES THE TRIBUNAL NEED TO DECIDE?
Based upon the respective parties’ positions, the issues which the Tribunal needs to determine in Mr Demirtas’ application are:
(a)whether Mr Demirtas meets the “disability requirements” under s 24 of the NDIS Act; or, alternatively,
(b)whether Mr Demirtas meets the “early intervention requirements” under s 25 of the NDIS Act.
EVIDENCE ABOUT MR DEMIRTAS
As noted above, Mr Demirtas is a married man aged 57. He lives with his wife, Meliha Demirtas, in a Melbourne suburb. Mr Demirtas has two adult sons who also live in the locality.
Mr Demirtas left school at the age of 15 years. In 1984 he went on a holiday with his parents to Turkey. While on that visit he met his wife and they married soon afterwards. He and his wife returned to Australia in 1986.[13]
Upon returning to Australia, Mr Demirtas worked as a porter and cleaner at the Royal Melbourne Hospital. He was in that position until March 1991. Some two years prior to ending that employment, he had a fall while at work. He took some weeks off and then returned to work. He stated in his letter to Dr Kochar that this work was too taxing and it was difficult for him to lift heavy items such as furniture.[14]
[14] JTB (n 2) 658.
Mr Demirtas then started work as a taxi driver doing night shift work. In 1990 he was assaulted by an aggressive passenger who hit his face causing a cut near his eye. He kept working to finish his shift.
In the following years he was again assaulted several times including being stabbed in his left arm.
According to his then treating psychiatrist, Dr Ingram, Mr Demirtas had a heart attack in 1998 and experienced lower back pain. He was also diagnosed with diabetes and hypertension.[15]
[15] Ibid 687.
In 2001, while having a holiday with his family, Mr Demirtas injured his back after the bus they were travelling in stopped suddenly, and his back hit a pole in the bus which caused him significant pain both at the time and thereafter.

In May 2013, Mr Demirtas was involved in another motor vehicle accident involving a tipper truck and sustained an injury to his chest, neck and left arm. A week or so after this accident he started developing flashbacks and panic attacks. Dr Ingram considered that Mr Demirtas had developed Post-Traumatic Stress Disorder.[16]
[16] Ibid 687.
Over the years, and in relation to the treatment and management of his chronic pain, Mr Demirtas identified the following treatments and activities that he has undertaken:
·Medication including Valium, Diazepam, Oxycontin Quetiapine, Endone, Pethidine and other medications;[17]
·Physiotherapy;[18]
·Hydrotherapy;
·Regular cortisone injections;[19]
·Psychology and psychiatry which has included CBT;
·Shoulder surgery in 2022 (right shoulder arthroscopic subacromial decompression, biceps tenodesis and acromioclavicular joint excision); [20]
·Participation in a pain management clinic at Dorset Private Hospital;
·TENS machine.
[17] Applicant’s SoLE, JTB (n 2) 31.
[18] Ibid 31.
[19] JTB (N 2) 606.
[20] JTB (n 2) 508.
Before Mr Demirtas began giving his evidence, I asked him if he was found to be eligible for the NDIS and what benefits and assistance it could provide. Mr Demirtas told the Tribunal that he has trouble accessing his shower as his frame does not fit in it. He was hoping that having the NDIS support would give him a degree of independence back and that he found it degrading having to rely on his family for everyday tasks. He said he had a flare up of his back pain in the past week and had to spend seven days lying on the floor.
He said that he has been dealing with his physical issues for a very long time. With regard to permanency, Mr Demirtas stated that he has been like this for the last 25 years, he is now coming on to 60 years of age, and he cannot see how he can get better.
Mr Demirtas said he exhausted every avenue having gone to hydrotherapy, physiotherapy and to a chiropractor. He said he has done everything that he has known to do, or that was available to him. Therefore, he can’t understand why the Agency says his conditions are not permanent.
Mr Demirtas has been seeing a psychiatrist for 20 years. Despite this, he does not feel he has got any better in that time.
He said as far as having a social life, he does not have this anymore. He used to enjoy going out to outings such as the football but cannot now, due to his PTSD. He said he has lost a lot of friends because of his disabilities and level of agitation, and they do not want to be friends with him anymore.[21]
[21] Ibid 17
Mr Demirtas said that Dr Nair has told instructed him to lose 25 kilograms and cease smoking before he can safely have surgery on his neck. He said that he has been trying hard to do this but finds it very difficult, as he cannot exercise. For example, he has a treadmill which he cannot use, and he does not know how to lose the weight without being active.
Mr Demirtas was recommended disc replacement surgery, however his specialist advised him that he will need to lose approximately 25 kilograms in weight and cease smoking before that can safely take place.
Mr Demirtas said that if the Agency wants to, they could send someone to stay with him and see what his life is like. He would feed them, provide them with a bed, and then they might have a better understanding of his condition, and that this would be a better use of taxpayers’ money rather than lawyers’ fees for defending the case.
Mr Demirtas identified that he scheduled to attend a pain management clinic in the near future.
Mr Demirtas was asked about whether he experiences difficulties with his communication. He indicated that he did experience such difficulties when he takes certain medications which affects his capacity to speak clearly. He also indicated that when on certain medication, he is not permitted to drive his car.
When questioned about his ability to socialise, Mr Demirtas said that while he was physically able to socialise, the issue for him was more psychological. He is able to socialise well with his family but is less motivated to do so in the community.
When asked about his functional capacity for learning, Mr Demirtas said that his capacity varied depending upon his level of medications. He said that he had never been a strong learner. He also said that he experiences memory issues, by way of example that when he parks his car he has to take photos with his mobile phone of where it is so he can remember its location.
When asked about Ms Gauvin’s observations about his cognitive capacities, he agreed with what he had told Ms Gauvin, but also stated that she had assessed him on what was a good day for him.
Mr Demirtas was then asked about his self-management capacities. He agreed that his son was assisting him with financial matters. He agreed that he could largely manage his own medical appointments using a calendar, however his capacities in this regard did vary upon whether he was experiencing a flare up, or if he had taken more medication than normal.
In this regard, he said that when he was experiencing a flare up, he believed his judgement was impaired and that his most pressing need was to seek pain relief including taking opioid medication.
In terms of his level of mobility, he said that on a good day he could walk to the end of his street which is about 200 metres. He drives his car to the shops and other journeys about three to four days per week. He is able, on most occasions, to get in and out of his car without too much difficulty.
Mr Demirtas was asked a number of questions by Ms Buxton concerning the day Ms Gauvin came to his home to conduct a functional assessment.
He confirmed that he had been experiencing a pain flare up which started some three or four days earlier.
He agreed that Ms Gauvin noted in her report that he appeared to to mobilise independently on that day.[22]
[22] JTB (n 2) 238.
He said that he experiences these pain flare ups about five to six times per year. These will generally take place over three or more days, potentially lasting up to seven days. What triggers them can be quite minor, such as bending down to get a cup out of the dishwasher or walking on even ground. When they occur, he will lie on a hard floor with his feet elevated and this will generally let his back reset.
Mr Demirtas was asked about the apparent discrepancy between what Ms Gauvin stated in her report and what he told her, namely that the flare ups lasted between one to three days, and what he had written in his Statement of Lived Experience which was that he may, due to a flare up, be bedridden for between 8 to 15 days.
Mr Demirtas said that the amount of time he is incapacitated does vary depending on severity, however it never lasted only a single day. He said that these longer periods where he was incapacitated was some four to five times in the past year. About five years ago he had needed to spend 10 days in the John Fawkner Hospital when he had a flare up which would not settle. He also confirmed that the longest period of time he had to stay in bed due to a flare up was six or seven days.
He attributed this to possibly having lost some 18 kilograms in the past 18 months after Dr Ahmet prescribed him a medication for diabetes. He acknowledged that losing this weight improved his mobility and may have reduced the length of time he was incapacitated by a flare up. He also acknowledged that due to the weight loss, he is generally more agile.
He further acknowledged that, depending on the severity of a flare up, he can get dressed, go to the toilet and shower independently at times, however on other occasions he could not do such things. When he had a severe flare up, his wife would need to assist him to shower.
The Agency’s Counsel asked Mr Demirtas about Ms Gauvin’s suggestion in her report concerning the use of a shower stool.[23] He noted that the shower cubicle was quite small (90 x 90cm), and he had been unable to find a shower stool that would fit in it. He previously had a shower stool that fitted but it broke.
[23] JTB (n 2) 237.
When asked about Ms Gauvin’s comments in her report[24] about him potentially avoiding activities that could be beneficial due to fear avoidance, he did not disagree stating that was Ms Gauvin’s opinion.
[24] JTB (n 2) 224.
He gave a similar response to Ms Gauvin’s observation in her report,[25] that with appropriate education, pacing and equipment, he should be able to shower and dress himself independently. He said it was degrading having to ask for such assistance from his wife.
[25] Ibid 234.
When he has a flare up, he requires assistance with a range of simple tasks about the house.
Mr Demirtas said that back pain was not the only issue. He gets numbness in his hands and fingers which is related to his problems with his neck. It gives him a sensation he likened to being paralysed. He experiences this several times a week.
He is waiting to have surgery done on his neck which was recommended by Dr Chiu. That surgery has not gone ahead due to his diabetes and sleep apnoea, as well as being overweight. Dr Nair has told him he needs to lose 20 to 25 kilograms first.
He said that while it was possible that he could have back surgery, this was not currently recommended as his Orthopaedic Surgeon, Dr King, who advised that it would be too risky.
The issues he has with paralysis and numbness from his neck are separate to those he has with his back.
Mr Demirtas said that he had some earlier surgery on his shoulder, but he was still having issues with pain. Dr Chiu referred him to a pain management clinic, with his first appointment following the hearing. He previously attended a pain management clinic at the Dorset Hospital.
Ms Buxton then asked Mr Demirtas some questions concerning his psychosocial impairments:
Mr Demirtas confirmed that he had been diagnosed with PTSD some years ago.
Ms Buxton made reference to a letter from his treating Psychiatrist, Dr Ingram, to Dr Ahmet concerning his treatment of this condition.[26] Mr Demirtas confirmed that he last saw Dr Ingram in 2020 and that he stopped seeing him as the Transport Accident Commission (‘TAC’) stopped paying for this treatment.
[26] JTB (n 2) 662.
He has been seeing another Psychologist under a mental health plan prepared by Dr Ahmet following the death of his father. He had the five or six sessions under the plan but could not continue seeing this Psychologist as he could not afford it.
Mr Demirtas told the Tribunal that he believed he would benefit from seeing a psychiatrist as they could prescribe medications which as opposed to a psychologist who cannot. He said that the medications he believed would assist him were those that helped him with sleep and calming, such as Zoloft. He said he still has trouble sleeping more than two hours per night, and he still has symptoms such as reacting when a semi-trailer blows their horn.
When Mr Demirtas was recalled as a witness to complete his evidence, Ms Buxton made reference to Dr Ahmet’s recommendation that he return to regular consultations with a psychiatrist. Ms Buxton then referred Mr Demirtas to Ms Gauvin’s report,[27] where he had been referred to a new psychiatrist, however he did not follow through with this referral.
[27] Ibid 222.
Mr Demirtas said in response that his previous Psychiatrist, Dr Ingram, had retired as had his antecedent Psychiatrist, Dr Kochar. If he followed through with the referral that would mean he would have to start over with a new Psychiatrist. He said that currently his mental state was good, and he did not want to aggravate things by going back. He also considered that all a psychiatrist would do was to prescribe him antidepressants and he did not see how this was going to help him. He was regularly using morphine patches prescribed by his other General Practitioner (‘GP’) and manages with that and Diazepam and was able to manage his symptoms with these.
He said that previously he had been doctor shopping with a view to being prescribed opiates and he did not want to return to overusing such medications. That overuse had made him feel like a ‘zombie’ and felt he was not in control of his life.
Ms Buxton also raised with Mr Demirtas what Dr Ahmet had said about the frequency and duration of his back pain flare ups (namely every five to six months and for 3 to 4 days) and Mr Demirtas own evidence on this point. In response, Mr Demirtas said that he did not go to see Dr Ahmet every time he experienced a flare up. He said he has medication to deal with it and Dr Ahmet’s surgery is a 45 minute drive from his house and as Dr Ahmet is so busy he may have to wait hours to get to see him. He will only do so if he is out of medication. He said Dr Ahmet can also provide him with an e-scripts.
Ms Buxton subsequently acknowledged that Dr Ahmet had said the flare up frequency was once every three to four months.
Mr Demirtas also indicated that the discrepancy between the two accounts of the duration of his attacks was the same in that he did not advise Dr Ahmet every time one took place.
Mr Demirtas was asked as to whether he had applied for the Home and Community Care program (HACC). He said that he had but had been advised there was a waiting list of 18 months to 2 years. He also said that he may not be eligible as he owns his own home and does not have a mortgage.
Mr Demirtas was also asked about his attempts to obtain his medical records from the Victorian Rehabilitation Centre where he had attended its pain management clinic. He was told by the Centre he would need to contact the TAC as it managed the Centre at the time. When he contacted TAC, it advised that they only kept these records for seven years, after which they were destroyed.
Ms Buxton also asked Mr Demirtas what supports he wanted if he were to be approved for the NDIS.
He said that he needed help with simple things, such as use the shower himself, helping him shave, installation of some rails in the shower, and help with attending outside appointments or shopping with someone who can drive him, particularly when he should not drive when on medications.
He was asked about the taxi voucher scheme and said that even with the discount he could not afford it.
He said that while his daughter-in-law has been very helpful, but she is now five months pregnant and he does not want to place that burden on her. He is also trying to take care of his 78-year-old mother at the same time who he sees three to four times a week. His sister also lives nearby but she has Multiple Sclerosis and he tries to help her too. They will usually come to visit him in his home.
Finally, Ms Buxton asked Mr Demirtas whether he used a TENS machine. He said that he had, but he considered it useless.
With regard to Mr Demirtas’ shoulder tear, Dr Ahmet confirmed he has had surgery on both shoulders.
Evidence of Mrs Meliha Demirtas
Mrs Demirtas gave her evidence on Thursday 4 July 2024. She gave her evidence with the assistance of a Turkish-speaking Interpreter. She confirmed that her Carer Impact Statement was true and correct.
Mrs Demirtas told the Tribunal that she has been married to her husband for 40 years. They have an adult son, daughter and two grandchildren.
She said that she would take her husband to visit family members because being at home all the time makes him depressed.
She said that her husband’s mother and sister mainly come and visit them in their home. She babysits her grandchildren between one and three times a week.
She was asked if she had discussed with her husband what he had said in his evidence the day before. She told us that she had not because it would make him upset.
When asked to describe her husband’s pain flares, she said that he weighs about 100 kilograms and when his pain comes on, he sways to one side, and when he is in bed, he can’t get out of bed and she could not lift him. His pain is in his lower back and into his leg and both his arms and leg become numb. She clarified that when he had pain on his left side then he would sway to the right.
When asked as to how often he has experienced such flares in the past year, Mrs Demirtas said about four or five times and before that he had to stay about nine days at the John Fawkner Hospital. She said that he had such an episode a few days ago but with some medication and laying down he started feeling better. In the last year, the longest period of time he needed to stay in bed was about two or three weeks. She said that the average time was about four to five days.
When asked to confirm this, Mrs Demirtas said it was difficult to remember everything but again said it would have been two weeks or so. The longest period a pain flare persisted was anywhere between six to ten days. Tom has been experiencing such pain for 25 years.
She said that when he has such an episode, he takes some strong tablets and stays in bed for about 24 hours. She said that the pain flares could last over four or five days and his doctors say he needs to lay down on a hard surface. If he has to then move, she needs her son or daughter in law’s help to lift him up. He finds it very difficult to move himself, so generally needs their help.
Ms Buxton referred Mrs Demirtas to Ms Gauvin’s report.[28] Ms Gauvin wrote that when his back was not aggravated, he does not experience pain. Mrs Demirtas said in response that Mr Demirtas gets pain in his neck and shoulder and numbness in his hands and has to take many tablets.
[28] JTB (n 2) 224.
She said he has poor sleep at night waking every two hours or so which disturbs both their sleep.
She said that he does not walk to the end of their street, rather he will walk in front of their house which is about 10 metres. She was unsure if by doing so he would walk 200 metres. Mrs Demirtas agreed that at times when he is not experiencing pain flares, Mr Demirtas could move independently around their home.
He drives the family’s car three to four days a week but will not do so when he is on medication as Mrs Demirtas will hide the car keys from him. They would go on car trips to see the doctor or for shopping trips.
When he is experiencing pain flares, Mrs Demirtas will assist him with getting out of bed and going to the toilet. She also helps him get dressed and helps him with most things.
She was also asked if she needed to assist her husband during the times he was not experiencing the flare ups. In response, Mrs Demirtas said that even when he is not having a flare up, he has problems with his shoulders and arms which go numb, so she has to assist him all the time. For example, she will help him to have a shower and will stand close by when he goes to the toilet. She also does all the household cleaning and cooking.
She agreed with Ms Buxton, that her husband had lost a significant amount of weight in the last twelve to eighteen months.
When asked about whether this had affected the severity and duration of his flare ups, she said that instead of lasting ten days they may last only five days. She was also careful in what she gives him to eat, including more greens. In terms of any improvement in his mobility and the severity of pain, Mrs Demirtas said that she did not think there had been any changes and that he is suffering in the same way.
Mrs Demirtas described the assistance she provides when Mr Demirtas has a shower. She said she sits him on a plastic chair in the shower, and then soaps him all over which is difficult because the shower cubicle is so small. She will assist him getting in and out of the shower by holding his arm. She also helps him to dry off.
She said that when he has a flare up he needs assistance to get out of bed, and has to help him with toileting. Getting out of bed, he leans on a walking stick, and she supports him on the other side.
Mrs Demirtas was also asked about her husband’s PTSD symptoms. She said he screams out in the middle of the night, he will continue to yell even if she tries to calm him. He does not catch up with their close friends, and consequently she has stopped getting together with them too. She cannot leave him to visit her friends, or her friends are too scared to come to visit her.

Ms Buxton then asked Mrs Demirtas what assistance she would want for her husband if he were to be approved for the NDIS. She said she would want him to have a bed that could help him to get up. Also, some rails in the shower would be helpful as well as someone who could take him out so she could have some time for herself and have a rest. In this regard, in addressing the Tribunal directly, she said that she has been supporting her husband for 25 years and was really worn out as a result.

Evidence of Dr Ahmet

Dr Ahmet told the Tribunal that he had been treating Mr Demirtas for 25 years. He sees him monthly. Ms Buxton read to Dr Ahmet the list of Mr Demirtas’ medical conditions as previously recorded in this decision.
In referencing Mr Demirtas’ coronary artery disease, Dr Ahmet said that there has been no change in its management for some years in terms of the prescribed medications.
Dr Ahmet prescribed Ozempic approximately 18 months ago for Mr Demirtas’ morbid obesity and potentially help him lose weight. This has resulted in a moderate weight loss – however he remains morbidly obese with a Body Mass Index (BMI) score of 35.5 which is in the morbidly obese range. He still has an increased risk of a heart attack.
Dr Ahmet was also asked about the treatment of Mr Demirtas’ diabetes. Dr Ahmet said that this condition was stable at present and his treatment is optimum however the related morbid obesity causes him some difficulty in his daily life.
Ms Buxton then addressed Mr Demirtas’ shoulder tears. She referred Dr Ahmet to a post- surgery letter dated 17 January 2023 from Dr Chiu,[29] as well as a letter dated 24 March 2022.[30]
[29] JTB (n 2) 494.
[30] Ibid 510.
Dr Ahmet agreed that the two operations were successful in that Mr Demirtas had greater movement and reduced pain. He noted that since the operations, Mr Demirtas continued to experience low level pain emanating from his neck and shoulder region, but primarily from the neck. He is being prescribed Valium for the combined neck, shoulder girdle and lumbar pain.
Dr Ahmet prescribed Nurofen Plus to Mr Demirtas but ceased this in 2021. He understood that another doctor may be prescribing Mr Demirtas with stronger pain relief medication.
Mr Demirtas had also been referred to see a Physiotherapist however this has not been ongoing since 2022. In summary, in relation to this condition Dr Ahmet indicated that the condition was largely settled but for occasional shoulder girdle flare ups.
Ms Buxton then addressed a number of questions to Dr Ahmet concerning Mr Demirtas’ Cervical spine and lumbar spine conditions.
Dr Ahmet said that Mr Demirtas had severe lumbar disc prolapse and chronic lower back pain for at least 15 years. Dr Ahmet treated this with spinal injections, but this did not remedy the issue. He has reasonably frequent flare ups of his lumbar pain, possibly every three to four months, and when these take place he requires Valium and stronger painkillers. Dr Ahmet said that to the best of his recollection these flare ups usually last three to four days.
When these take place Dr Ahmet’s impression was that Mr Demirtas was unable to move around his house however, he also noted that he has only seen him once or twice at the clinic, with an acute episode in recent years.
The last time he attended presenting with these symptoms was on 28 June 2024 where the doctor prescribed Valium, noting that it is the only thing proven to release the pain. Mr Demirtas will take it over a two to three-day period.
Valium does have side effects, such as making Mr Demirtas drowsy, and so he will stay at home and not drive when taking it.
Dr Ahmet was asked about the possibility and prospects of surgery to address this condition. This had been suggested by Dr Nair and was outlined in his letter of 11 September 2015 to Dr Ahmet.[31]
[31] JTB (n 2) 484.
Dr Ahmet indicated that his understanding was the suggested surgery did not take place. He indicated that while he was not aware of the reasons why Mr Demirtas did not undergo the surgery, he assumed that it may have been fear on his part of the potential risks involved. In this regard, the potential risks of paralysis or death are fairly low. The neck pain symptoms Mr Demirtas now experiences are due to, and emanating from, his cervical spine and shoulder girdle.
He was not aware of any more recent recommendation for surgery. Mr Demirtas, interjecting in response to the doctor’s responses to the suggested surgery, advised that Dr Nair was not prepared to operate due to his weight, sleep apnoea and diabetes, and had told him he needed to lose 25 kilograms.
Dr Ahmet told the tribunal that in the past 18 months, Mr Demirtas has lost about 12 kilograms. He anticipated that this treatment would continue with the possibility of bariatric surgery to address his diabetes. He noted that even people who have a massive decrease in weight will still experience residual pain and be prone to flare ups.
Dr Ahmet later clarified that his observations concerning the prospect of future surgery applied to both the severe lumbar disc prolapse and the cervical spine injury. He noted that in his present condition, Mr Demirtas had a higher risk profile than someone aged 80 potentially having the same surgery.
In terms of what condition was causing the most pain during flare ups, Dr Ahmet identified that as being the lumbar spine and less so the cervical spine condition.
In terms of non-surgical interventions, Dr Ahmet indicated that a TENS machine may be potentially beneficial for both conditions. He said that Mr Demirtas could continue to take Valium and then potentially a new generation antidepressant, and the possibility of ketamine infusions, although that would be up to the specialists at the pain management clinic.
Dr Ahmet was asked about whether he would recommend Mr Demirtas to attend a pain management clinic. He indicated that some patients respond after such a referral, while other do not, however it would not hurt to do so.
Mr Demirtas at this point noted that he had been given a new referral to the pain management clinic by Dr Chiu. He last went to the clinic run by the Dorset private Hospital.
Dr Ahmet said in response that the approach taken these days to pain management was quite different to twenty years ago. In the past the approach was a combination of heavy drugs and physiotherapy and the prescribing of an antidepressant on the assumption that people with chronic pain would have depression. These days there are new drugs available such as Catapres and others being neuromodulators and ketamine infusions.
He added that in his experience, people who are unable to lose 20 to 30 kilos get little benefit from attending a pain management clinic. He added that if Mr Demirtas had his fatty liver condition addressed, lost the weight the surgeon recommended, and was still experiencing back pain flare ups then the possibility of surgery could again be considered. He estimated that in this regard, Mr Demirtas would need to lose a further 25 to 30 kilograms.
Ms Buxton asked Dr Ahmet about Mr Demirtas’ PTSD and whether he should need further management of this condition. In reply, Dr Ahmet indicated that he would need to discuss this with Mr Demirtas to see if he believed he needed further therapy sessions. At present he has no active mental health management plan in place.
He added that PTSD symptoms can be quite variable over time and patients have different experiences in this regard. The only way to manage this is by a combination of antidepressants and cognitive behaviour therapy.
In responding to Dr Ingham’s observation that Mr Demirtas’ condition was stable, Dr Ahmet noted that symptoms never truly disappear, and in some cases patients get to a point where they are accustomed to the symptoms, however it can impact their daily interactions with others. This could manifest in hesitance to meet people, where they do not feel comfortable talking to people or participating in activities outside of the family home. It may also affect family relationships due to the underlying mood disorder that goes with PTSD.
Dr Ahmet recommended that Mr Demirtas see a psychiatrist from time to time for the assessment of his ongoing mental state.
At the conclusion of Ms Buxton’s questions, the Tribunal asked Dr Ahmet for his overall prognosis of Mr Demirtas’ physical impairments. In response, Dr Ahmet noted that Mr Demirtas’ weight had not changed and therefore his pain had not shifted. He has been dealing with these conditions for two decades, and Dr Ahmet did not think the overall prognosis was good and thus likely an ongoing picture for him.
Evidence of Ms Ira Gauvin
Ms Ira Gauvin gave oral evidence to the Tribunal. After confirming her name, academic qualifications and professional experience, she was asked a number of questions by Ms Buxton, Mr Demirtas and the Tribunal. I also note that Ms Gauvin indicated that she has both professional experience and personal interest in the area of chronic pain.
It was noted that Ms Gauvin had prepared a report dated 6 October 2023,[32] as well as a brief list of corrections, amendments or clarifications dated 2 July 2024. These were formally tendered into evidence as annexed to these reasons. She confirmed that the contents of the two reports were true and correct, and that there are no other changes she wished to make to her report.
[32] JTB (n 2) 220.
She said that she had spent 2 hours and 18 minutes with Mr Demirtas when conducting her assessment. She indicated that she would usually allocate up to four hours to conduct an assessment. She may need the longer period where the assessment takes additional time, or she is conducting it with the assistance of an interpreter.
She provided a summary of the processes she generally uses, those she did with Mr Demirtas, and how she conducted her assessment of Mr Demirtas.
Ms Gauvin conducted the following assessments:
·Montreal Cognitive Assessment
·World Health Organisation Disability Assessment Schedule (‘WHODAS’) 2.0;
·Lower Extremity Functional Scale (‘LEFS’).
She indicated that Mr Demirtas was reluctant to perform kneeling, squatting and car transfers due to his pain levels arising out of a flare up which began a couple of days before.
She said that Mr Demirtas reported having such flare ups five times per year.[33]
[33] JTB (n 2) 221, 223.
She was able to observe Mr Demirtas move independently about his home without the need for a stick and was able to do all the transfers around the home.
Ms Gauvin in her report indicated that although Mr Demirtas has a number of impairments he manages quite well especially when he is not experiencing a pain flare. He lacks motivation to participate in social activities.[34] Overall in Ms Gauvin’s opinion she noted the following:
·Mr Demirtas exhibited fear avoidance as he was being assessed and this could lead to further deconditioning and could be harmful for him as it may discourage important activities.[35]
·In terms of his overall WHODAS score (101/160) this indicates a moderate level of disability and demonstrated moderate/severe levels of disability across the domains of participation in society, life activities, communication, mobility and communication.[36]
·His level of impairment varies. He reported that he had moderate difficulty with walking between rooms putting on shoes and socks, lifting an object off the floor, performing light activities around the home and some difficulty getting in and out of a car. He expressed having a greater level of difficulty with usual housework, hobbies, squatting, heavy activities walking up and down 10 stairs sitting or standing for an hour, running on uneven ground, making sharp turns when running fast, hopping, and rolling out of bed.[37]
·While Mr Demirtas does have difficulty with housework, Ms Gauvin also noted that these tasks were almost exclusively done by his wife.
·His level of function is generally better when he is not experiencing a pain flare.
·Ms Gauvin said he would benefit from having a suitably sized shower stool in his bathroom and should over time be able to manage this on his own.
[34] JTB (n 2) 236.
[35] Ibid 236.
[36] JTB (n 2) 229–230.
[37] JTB (n 2) 230.
Ms Gauvin assessed Mr Demirtas’ cognitive function as being within normal limits, including his attention and concentration levels, and speed of processing information. His ability to communicate was appropriate, although she noted that he experiences frustration and a degree of irritability. Overall she considers that he has a mild cognitive deficit and Mr Demirtas could address this with his GP, seek a referral to a specialist or participate in a memory clinic.
Ms Gauvin noted, in terms of his social contact, Mr Demirtas has minimal contact with others outside his immediate family, an avoidance he ascribed to his mental health condition and low motivation.
Ms Gauvin noted that Mr Demirtas experiences difficulty out in the community where he suffers from poor memory, which he puts down to the side effects of his medication and poor sleep. For example, he sometimes forgets where he has parked his car and will need to take a photo to remind him of where it is.[38]
CONSIDERATION
Having now outlined the evidence provided at the hearing, the Tribunal will need to address the various matters in dispute as were outlined in paragraph 40 above and my findings in each case.
[38] JTB (n 2) 231.
Section 24: The Disability Requirements
Does Mr Demirtas have a disability that is attributable to impairments resulting from diabetes and/or coronary heart disease pursuant to s 24(1)(a)?
Mr Demirtas has asserted that he has such impairments arising out of his diabetes and coronary heart disease. The Agency disputes this is the case.
Both conditions are managed by Mr Demirtas’ GP, Dr Ahmet, and by medical specialists.
In relation to the Diabetes diagnosis, Mr Demirtas has seen Dr David Packham, a Consultant Nephrologist. Dr Peckham, in his letter to the Tribunal dated 31 March 2023, stated that he has seen Mr Demirtas for some eight years for early diabetic nephropathy, that his renal function remains normal, and is on the optimum therapy for that condition.
[39] JTB (n 2) 594.
Dr Packham stated that he did not consider that the condition had any impact on his disability claim.[39]
Dr Ahmet was asked about Mr Demirtas’ diabetes and treatment during his testimony. After referring to his notes, Dr Ahmet advised that his haemoglobin levels are acceptable, that his kidney is stable and that his current treatment is optimum.
Turning to his diagnosis of coronary heart disease this condition is treated by Dr Ahmet and the Cardiologist, Dr Al-Fidah. Dr Al-Fidah in his letter of 17 November 2018 stated that he was:
‘happy to keep him on the same medication…and will review Mr Tom in six months’ time as there is no further cardiac investigations required at this stage.’
In his testimony, Dr Ahmet stated that Mr Demirtas’ heart condition was well managed and that he saw no change likely, other than continuing with his weight reduction program using Ozempic.
There is no evidence before me which indicates that Mr Demirtas’ diabetes and coronary heart disease amounts to an impairment under section 24(1)(a) of the Act or that they are permanent under section 24(1)(b).
Section 24(1)(a): Does Mr Demirtas have a disability that is attributable to his other physical impairments or to an impairment attributable to a psychosocial disability?
The Respondent accepts that Mr Demirtas has:
·a physical impairment due to his; severe lumbar disc prolapse, chronic lower back pain, cervical spine injury, and cervical foraminal stenosis and shoulder tear; and
·a psychosocial impairment due to Post-Traumatic Stress Disorder.
At the hearing, it was clearly apparent that Mr Demirtas experiences significant and severe pain. Dr Ahmet in his evidence confirmed his ongoing treatment of Mr Demirtas for his chronic back pain and the impact that has on Mr Demirtas’ daily life.
Based on the evidence and my own observations, I am satisfied that the Agency’s concession is reasonable and proper.
Section 24(1)(a) of the NDIS Act is satisfied in relation to the conditions referred to in paragraph 178 above.
Section 24(1)(b) Are Mr Demirtas’ impairments permanent or likely to be permanent?
In order to be granted access to the NDIS, an applicant needs to establish that the impairments are permanent or are likely to be permanent. This requires an analysis both of the impairment itself and whether there are available treatments, medications or therapies which could remedy those impairments.
It is clear to me that Mr Demirtas strongly believes that his conditions are permanent, particularly those related to his lumbar spine, neck and shoulder pain. He asserts this because he has many years of lived experience with these conditions without much apparent reduction in his symptoms. He was found to be incapacitated by the Transport Accident Commission and has been found eligible for the Disability Support Pension, and does not understand why this has not been the case with his application for NDIS support.
Under the NDIS Act and Rules, as interpreted by the courts, there are certain aspects of an applicant’s conditions and their treatment that must be established in order for a decision maker to reach this conclusion.
The following section will address my findings on whether any of his conditions can be considered as being permanent and why.
Rule 5.4 of the Rules states that an impairment is, or is likely to be, permanent only if there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment.
In National Disability Insurance Agency v Davis [2022] FCA 1002 (‘Davis’), the Federal Court held that a "remedy" should be ‘understood to mean something approaching a removal or cure of the impairment’. 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 word “available” should be understood as directed at what treatments an individual can, in reality, access.
In Davis it was stated that when considering whether a treatment is ‘available’, consideration should also be given to the individual applicant’s financial circumstances and their ability to meet the cost of such treatment.
I therefore consider that the appropriate test as to whether Mr Demirtas’ impairments are permanent or likely to be permanent for the purposes of section 24(1)(b) of the NDIS Act, is whether all known, appropriate and reasonably available evidence-based clinical, medical or other treatments, that would be likely to approach a removal or cure of his impairment or substantially relieve the effects of his impairment, have been pursued.
I note that Dr Ahmet in his evidence noted that Mr Demirtas’ weight has not changed and therefore his pain has not shifted. He has been dealing with these conditions for two decades now, and so he did not think overall his prognosis was good and thus likely to be the ongoing picture for him.
That would seem to indicate that Dr Ahmet’s views Mr Demirtas’ spinal conditions as permanent, however I must weigh that opinion against the treatments that may be available to Mr Demirtas and their prospects of improving or relieving the effects of his impairments.
Based upon the evidence provided I do not consider this to be the case.
I consider that Mr Demirtas needs to access further medical treatment and review before a determination can be made about whether his impairments are permanent or likely to be permanent.
These potential treatments include the surgery recommended by Dr Nair (subject to Mr Demirtas achieving the recommended weight loss), participating in another pain management program which could include the prescribing of newer medications such as Catapres and others being neuromodulators and ketamine infusions, and again seeing a psychiatrist to address his PTSD and related mood symptoms.

My considerations in this regard are as follows:
I consider that further evidence-based medical and allied health treatment exists, using a multidisciplinary approach (‘recommended treatments’) which are available to Mr Demirtas in respect of the management of his chronic pain;
That the recommended treatment is ‘available’ to Mr Demirtas in the context of his current financial circumstances;
In this regard, I note that Dr Keng and Dr Ahmed have recommended that Mr Demirtas have additional surgery such as a disc replacement procedure. He is still required to lose further weight before this can take place, however, given the weight he has already lost, this goal should be possible.
Mr Demirtas has already lost a significant amount of weight since being prescribed Ozempic and gave evidence that this weight loss has assisted in improving his mobility and reduced the length of time he was incapacitated by a flare up.
In this regard, Dr Ahmet has suggested that Mr Demirtas be referred to a dietician who could provide additional assistance in achieving his weight loss goals.
Dr Ahmet also recommended that Mr Demirtas again see a psychiatrist on a regular basis to monitor his mental state and prescribe appropriate medication if required.
I also note that it remains open for Mr Demirtas to participate in a pain management program which he indicated he was about to begin attending.
In summary I am not positively satisfied that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy Mr Demirtas’ impairments.[40] I am positively satisfied that Mr Demirtas requires further treatment and review before a determination can be made about whether his physical or psychosocial impairments are permanent or likely to be permanent.
[40] The Access Rules r 5.4.
As noted earlier the separate elements of the disability requirements are cumulative; in other words an applicant must establish that they meet each and every one to satisfy the disability requirements.
As Mr Demirtas has not established that his conditions are permanent, it is open to me to not proceed any further with my assessment of the remaining disability requirements, however, in fairness to him, I will address these below.
Subsection 24(1)(c) Do Mr Demirtas’s impairments result in him having a substantially reduced functional capacity?
Mr Demirtas submitted that he had substantially reduced functional capacity in the areas of mobility, self-care and social interaction.
The Tribunal accepts that Mr Demirtas experiences fluctuating levels of pain and that he will have “good days” and “bad days” resulting in varying levels of functional capacity when it comes to activities of daily living. The Tribunal will consider the overall impact of the pain on Mr Demirtas’ functional capacity after taking into account how he has both good and bad days.
Rule 5.8 provides that:
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.
General approach
The Access Guidelines provide the following guidance in relation to the question of whether the criterion under s 24(1)(c) of the NDIS Act has been met by a person:
Does your impairment substantially reduce your functional capacity?
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
•Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
•Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
•Learning – how you learn, understand and remember new things, and practise and use new skills.
•Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
•Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
•Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.
These disability-specific supports include:
•a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
•assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
To help us decide if you’re eligible, we need to know your capacity and where you need more help. We get this information from your NDIS application.
If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.
We consider how you’re involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day-to-day life.
Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.
(footnotes omitted)
The Tribunal is not bound by those descriptions provided in the guidance as to the six Prescribed Activities in s 24(1)(c) of the NDIS Act when assessing the criteria relating to “substantially reduced functional capacity”. However, in general terms, and subject to the matters referred to in [206] to [215] below, the Tribunal considers that those definitions in the Access Guidelines operate as a good starting point in making that assessment.
As observed by her Honour Justice Mortimer (now, Chief Justice) in Mulligan v National Disability Insurance Agency (‘Mulligan’),[41] this assessment calls for an examination of evidence given by the person seeking access to the NDIS, as well as medical and clinical evidence. The focus is a practical examination of what the person can and cannot do. Her Honour in Mulligan described the assessment as “avowedly functional, and multi-faceted” and that:
…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.
[41] (2015) 233 FCR 201 [55]–[56]. Her Honour Justice Mortimer is now the Honourable Chief Justice of the Federal Court of Australia.
The Full Court of the Federal Court of Australia in National Disability Insurance Agency v Foster (‘Foster’),[42] decided that it was an error to apply the NDIA’s guidelines in a way as to equate a person’s inability to undertake one task forming part of “self-care” (that is, in that case, toileting) and to deem this to be the relevant activity for which functional capacity was required to be assessed.[43] The Full Court in Foster observed at [64] that:
[64]In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
[65] Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of “self-care”, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.
(emphasis added)
[42] [2023] FCAFC 11.
[43] Ibid [65].
The judicial authority as outlined in Foster calls for the Tribunal to make an assessment of the person’s capacity to undertake the various tasks and actions comprising each of the Prescribed Activities, as a whole. My own view is that the interpretation by the Full Court of the Federal Court of Australia in Foster stands for the proposition that a person does not necessarily have a substantially reduced functional capacity in relation to an activity because they have difficulty with one task related to that activity.
Rule 5.8 provides that:
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 Full Court of the Federal Court of Australia in Foster addressed the question of what is meant by “effectively and completely” as appearing in r 5.8(a) of the Access Rules. Of note, Justice Derrington observed as follows:
[83] In the overall legislative scheme, the adverb “completely” appears to be redundant, and in any event, unachievable. If “completely” is to be given its ordinary meaning, what is being asked of the rule is an assessment of whether a person’s impairment results in substantially reduced functional capacity to participate “wholly” or “perfectly” in the activities of communication, social interaction, learning, mobility, self-care and self-management – an impossible bar for almost everyone.
…
[88] Within this statutory context and having regard to the purpose of s 24 as described in the revised Explanatory Memorandum, a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.
(emphasis in original)
As cautioned by the judicial observations in Mulligan, the Tribunal should not confine its consideration of whether a person has met the disability requirement under para 24(1)(c) of the NDIS Act, by considering their circumstances only through the prism of r 5.8 of the Access Rules.[44] Instead, her Honour Justice Mortimer made clear that the statutory task required the decision-maker to consider whether a person’s functional capacity is substantially reduced in any of the six Prescribed Activities.
[44] Mulligan (n 73) [77].
The Respondent asserted in its Statement of Facts Issues and Contentions (SoFIC) that Mr Demirtas’ impairments do not result in substantially reduced functional capacity for the purposes of s 24(1)(c) of the Act.[45] The Respondent maintained that assertion in its post hearing written submission.[46]
[45] JTB (n 2) 5.
[46] ‘Respondent’s Statement of Facts, Issues and Contentions’ 13.
I will address the evidence on Mr Demirtas’ functional capacities under the headings of the six prescribed activities. I note that Mr Demirtas did not assert in either his Statement of Position or his Statement of Lived Experience that he had a substantial reduction in functional capacity. However, as all six prescribed activities were addressed in Ms Gauvin’s report and in the oral evidence given at the hearing, I will address them below.
Communication and learning
Mr Demirtas stated in his evidence that he mostly had functional capacity with communication however that depended on what medication he was taking. When he was on heavy medication his speech became slurred and that this could last an entire day.
During the times he experienced difficulties in communicating verbally, he was able to express his needs to his wife by getting up and starting to do what he wanted, and she would intervene and take over that task.
Ms Gauvin noted in her report that Mr Demirtas’ attention, concentration and speed of information processing appeared to be within normal limits.[47] When Mr Demirtas gave his evidence, he agreed with Ms Gauvin’s assertion, however he also noted that when she saw him he was having a good day although also noting he was in the midst of a flare up.
[47] JTB (n 2) 230.
However, overall Mr Demirtas did not press that he lacked functional capacity in the areas of communication and learning.
I therefore cannot find that Mr Demirtas has a substantial reduction in functional capacity for these two prescribed activities.
Social interaction
In his Statement of Lived Experience, Mr Demirtas stated as follows:
I don’t use public transport. I do not leave my home unless I have to. I don’t socialise anymore. I am sick of people asking me ‘what’s wrong with you?’ [48]
[48] JTB (n 2) 136.
When questioned about his ability to socialise, Mr Demirtas said that while he was physically able to socialise the issue for him was more psychological. He is able to socialise well with his family but is less motivated to do so in the community.
In her report, Ms Gauvin observed the following about Mr Demirtas’ capacity for social interaction:
‘He’s able to interact with others independently, however, lacks motivation or desire to attend or to participate in social gatherings, groups or external activity as a result of his mental illness.’[49]
[49] JTB (n 2) 229.
When asked whether he considered Ms Gauvin’s statement to be accurate, Mr Demirtas agreed that it was.
In his oral evidence, Mr Demirtas described having regular social interactions with his family including his adult children, his mother and his sister, and that he had no difficulty in this regard.
Mr Demirtas indicated in his evidence that he did not dispute the Agency’s position that he did not have a substantial reduction in his functional capacity in the area of social interaction.
I therefore consider that the evidence does not establish this. As such I cannot be satisfied that the Applicant has a substantially reduced functional capacity in this domain.
Mobility
Mr Demirtas’ capacities, in relation to this prescribed activity, was the subject of a significant amount of documentary and oral evidence.
It was clear from this evidence that Mr Demirtas’ level of function will vary depending on whether he is experiencing a pain flare. It was also clear from the totality of the evidence that Mr Demirtas would experience those pain flares four to five times per year and that his time to recover would also vary between two to three days and sometimes longer.
Mr Demirtas also conceded that now that he has lost a significant amount of weight (approximately 18 kilograms) his recovery time from a pain flare has improved.
In terms of his capacities when he is not experiencing a pain flare he can:
·Walk to the end of his court (approximately 200 metres);
·Drive his car approximately three-four times per week;
·Attending shopping centre (approximately 5km away); and
·Getting in and out of the car by himself (mostly).
In her report, Ms Gauvin indicated that when she observed him moving about his home, he certainly moved slowly but managed transfers independently. He did decline to perform movements such as squatting, kneeling and attempting to get in and out of his car, however he told her that when not having a pain flare he could make those transfers.
The overall impression gained from the evidence is that, while Mr Demirtas has some restrictions on his mobility when experiencing flare ups, his level of mobility is otherwise reasonable.
Therefore, his overall level of mobility could not reasonably be said to demonstrate a substantial reduction in functional capacity in this prescribed activity.
Self-care
Mr Demirtas stated that he required assistance with some self-care tasks particularly when he was experiencing a severe pain flare.
These include getting out of bed, getting dressed, showering and toileting. This assistance was primarily provided by his wife, but his daughter-in-law also assists from time to time.
He also said that his wife exclusively looks after domestic tasks such as cooking and cleaning and that had been the case throughout their marriage, predating his current level of incapacity.
In her report and oral evidence, Ms Gauvin said she observed Mr Demirtas independently manage getting into and out of bed, showering and toileting however noting that he experienced more difficulty with such tasks when having pain flares.
She further indicated that Mr Demirtas, with appropriate equipment such as an appropriately sized folding shower chair, should be able to manage showering independently.
As noted above, I am required to assess Mr Demirtas’ level of function by assessing his capacity across a bundle of self-care tasks, rather than focussing on a single task. Also, in accordance with Rule 5.8, I need to assess the frequency with which a person may require assistance to perform such tasks.
Reviewing the evidence through these two aspects, I consider that it is established that Mr Demirtas’ self-care capacities are variable depending upon the negative effects of having flare ups. As noted earlier, the consensus of the evidence is that these take place possibly up to six times per year and his need for assistance does increase at these times.
However, I do not consider that is not sufficient to establish that he usually requires assistance as foreshadowed by Rule 5.8.
Therefore, his overall level of self-care could not reasonably be said to demonstrate a substantial reduction in functional capacity in this prescribed activity.
Self-Management
As noted earlier, self-management relates to how an applicant manages their daily life, including managing their appointments and their daily tasks including their finances.
In this regard, Mr Demirtas stated that his son was assisting him with financial management, and this was partly arising out of his memory issues as well as a matter of convenience. He agreed that he was able to independently arrange and attend his medical appointments and could use a calendar most of the time. This was dependent upon whether he was taking heavy medications, which he said affected his memory.

He agreed that he could drive his car most of the time except when on medication, and that would drive to attend medical appointments, see his children, and go to the shops.
Mr Demirtas also stated that he did not do any household tasks such as cooking and cleaning as this was his wife’s domain, and she was now assisted by their daughter in law.
It is worth noting that when Ms Gauvin conducted her WHODAS assessment, Mr Demirtas scored very poorly in the Life Activities – Household section. She clarified that the result was in part down to the fact that Mr Demirtas had never done such tasks, and would therefore struggle with doing them. She did however believe he could and should be attending to light tasks including those in the garden.
Based upon this evidence, I am not satisfied that there is evidence which establishes that Mr Demirtas has a substantial reduction in functional capacity in this prescribed activity.
Impact on Social and Economic Participation (Subsection 24(1)(d) of the NDIS Act)
The question here is whether Mr Demirtas’ impairment or impairments affect his capacity for social or economic participation.
I consider that the evidence clearly establishes this is the case, at least having regard to his capacity for economic participation. Firstly, Mr Demirtas, as a man in his fifties, remains of working age. He has been unable to work for some years and was found to be permanently incapacitated by the TAC. He has also been approved for the Disability Support Pension.
His impairments do affect his capacity for economic participation.
Need for NDIS Lifetime support (Subsection 24(1)(e) of the NDIS Act)
The final element of the disability requirements is whether Mr Demirtas is likely to require support under the National Disability Insurance Scheme for his lifetime.
For me to find this is the case, I would firstly need to find that his impairments are permanent, and secondly that there is a substantial reduction in his functional capacity.
As above the evidence does not enable me to make such findings.
I therefore consider the evidence does not establish that he either requires or is likely to require NDIS support for his lifetime.
SECTION 25: THE EARLY INTERVENTION REQUIREMENTS
The early intervention requirements are contained in section 25 of the NDIS Act and provide as follows:
2.A person meets the early intervention requirementsif:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent;
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; social interaction;
(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.
As noted previously, as with the elements of section 24, the requirements of section 25 of the NDIS Act are cumulative and all criteria must be met.
I have already found that there is not sufficient evidence to enable me to find that Mr Demirtas’ impairments are permanent.
Because of this, Mr Demirtas cannot meet the eligibility criteria for the early intervention requirements.
PROCEDURAL MATTERS
Before concluding this decision, I will address several issues raised by Mr Demirtas in his submission provided after the conclusion of the hearing.
Firstly, Mr Demirtas stated that he was severely disadvantaged in that he lacked legal representation to properly outline his case, whereas the Agency “had the full force of Australian taxpayers’ money to defend their cause.”
Secondly, he stated that he was “severely disadvantaged due to the fact that my doctors were not available (due to financial constraints) to give evidence on my behalf.”
Mr Demirtas also raised a number of matters concerning both the validity and evidentiary value of the report provided by Ms Gauvin who is an Occupational Therapist, and not a qualified medical practitioner.
The Tribunal will address the first two issues first.
The Tribunal acknowledges that Mr Demirtas was unable to secure the services of either a legal representative or a disability advocate. I am not aware of what steps Mr Demirtas took to engage an advocate.
However, the fact that one party was represented and another not, does not then lead to a conclusion that the conduct of the hearing was unfair. This Tribunal hears thousands of cases each year where this is the case. Members are required to take this potential imbalance of power into account in the conduct of their hearings, and make necessary allowances in the conduct of their hearings. Similarly, the legal representatives for the Agency are required to comply by what is termed ‘Model Litigant Rules.’ In general terms these rules require such legal representatives to behave with absolute fairness in the way they interact with an unrepresented Applicant both in the conduct of the case and at the hearing. Throughout the two days of the hearing, I did not witness any interaction between Mr Demirtas and counsel on behalf of the Agency that caused my concern that these rules were not being followed.
In this regard, Mr Demirtas was provided with a clear outline of the matters the Tribunal was required to address in the hearing and regularly given the opportunity to clarify this and ask any questions he wished to ask of his witnesses.
In addition, a Member’s decision will necessarily have to take into account both the documentary evidence provided by the parties as well as the oral evidence provided by the various witnesses. The Tribunal notes that a significant amount of material was provided on Mr Demirtas’ behalf by his various treating doctors and this evidence was closely considered in reaching a decision on each aspect of the access criteria.
In relation to the inability to have Mr Demirtas’ doctors provide evidence at the hearing, I make the following observations.
Firstly, the Tribunal issued summons to provide medical records to the following doctors:
·Dr Mustafa Ahmet (GP)
·Dr Girish Nair (Neurosurgeon)
·Dr James Chiu (Orthopaedic Surgeon)
·Dr David Peckham (Nephrologist)
·Dr Davinder Kochar (Psychiatrist)
·Dr Nicholas Ingram (Psychiatrist)
As noted above, all these doctors provided their medical records to the Tribunal, and these were available for the Tribunal to consider in assessing whether Mr Demirtas’ met the eligibility criteria for the scheme. After reviewing this material, the Tribunal considered they would assist me in making the preferable and correct decision if the matter proceeded to hearing.
Prior to the hearing, a Directions Hearing was held, and at that hearing Mr Demirtas was asked to indicate which doctors he wished to give evidence. He told me that he wished to call the following medical practitioners:
·Dr James Chiu
·Dr Ginish Nair
·Dr Mustafa Ahmet
At that Directions Hearing, Mr Demirtas was advised that the general practice in issuing a summons to give evidence, was that this would be at the expense of the party making that request. This usually entails meeting the reasonable cost of the witness in attending to provide the evidence.
It is open to a Member to direct that a summons be issued at the Tribunal’s expense if there are reasonable grounds to do so.
Mr Demirtas indicated that he was a pensioner and would not have the financial capacity to meet this cost. I therefore directed that the summons be issued to the three doctors at the Tribunal’s expense.
Summons were then sent to these three doctors in June 2024, and Doctors Chiu and Nair subsequently advised the Tribunal of the fee they proposed to charge for providing their evidence. In the Tribunal’s view these requested fees were unreasonable and Mr Demirtas was advised of the Tribunal’s view.
As I have already noted, both Dr Chiu and Dr Nair provided their medical records for Mr Demirtas, and these were considered by me in detail.
Dr Ahmet, Mr Demirtas’ General Practitioner for over two decades, was available to give oral evidence on the afternoon of the first day of the hearing. Dr Ahmet as Mr Demirtas’ GP was provided with regular updates on his treatment and recommended therapies by his treating specialists, including Dr Chiu and Dr Nair. In the course of giving his evidence, Dr Ahmet was referred to the medical records provided by these two doctors and provided his response based upon both that material and his own professional opinion.
The Tribunal considers that because I had access both to these doctors’ physical medical records and also had the benefit of Dr Ahmet’s evidence and responses to questions concerning the material provided by these two doctors, Mr Demirtas was not disadvantaged in the conduct of his hearing.
As noted above, Mr Demirtas indicates in his submission that as Ms Gauvin is not a “qualified medical practitioner” and appears to suggest that she was the Agency’s witness as it paid for the preparation of her report. He stated that he did not understand why he had not been referred to a medical practitioner and did not consider a report from an Occupational Therapist to be sufficient to come to an opinion that will significantly impact his life. In this regard he referred to Ray v National Disability Insurance Agency which he said stood for the proposition that evidence solely from an Occupational Therapist was not sufficient evidence.
Although Mr Demirtas did not provide a citation to this case, I consider the matter he refers to is Ray v National Disability Insurance Agency [2020] AATA 3452, (‘Ray’) a decision of Senior Member Parker. I will address this decision and its relevance to Mr Demirtas case, in a moment.
Before doing so, I will make the following general observations.
As indicated in paragraph 24 of this decision, I am required to determine whether Mr Demirtas impairments:
· are permanent or likely to be permanent within the meaning of section 24(1)(b) of the NDIS Act;
· result in a substantially reduced functional capacity for him to undertake one or more of the activities within the meaning of section 24(1)(c) of the NDIS Act;
· affect his capacity for social and economic participation within the meaning of section 24(1)(d) of the NDIS Act; and
· are likely to require support under the scheme for his lifetime, within the meaning of section 24(1)(e) of the NDIS Act.
In many but not all cases, the question of whether an individual applicant’s condition is permanent, and will generally require the professional opinion of a medical practitioner. This could include a GP or a suitably qualified medical specialist providing treatment for a particular condition that an applicant is diagnosed with. In addition, medical professionals will need to address whether there are any treatments or therapies which could potentially cure or reduce the severity of those conditions. Much of the evidence on these criteria was provided by Mr Demirtas’ treating doctors.
However, in reaching a decision as to whether an applicant has a substantially reduced functional capacity, it is common practice to have that applicant assessed by an Occupational Therapist (‘OT’). This can either be an OT engaged by the Applicant, or, in this case one engaged by the Agency to act as an Independent Medical Examiner.
I note that while some of Mr Demirtas’ treating doctors did provide some indication of his level of function, they did not sufficiently detail or address each and every one of the six activities referred to in section 24(1)(c) of the Act.
The reason why Occupational Therapists are generally engaged to make such assessments is because they have the necessary training, qualifications, and experience to conduct an assessment of an applicant’s level of function. They are, if you like, the specialist allied medical practitioner of choice in making such as assessment and providing an opinion as to whether an applicant has a substantially reduced functional capacity.
That is not to say they do not have limitations in the value of the evidence they can provide. As a general proposition, an Occupational Therapist‘s assessment of an individual’s functional capacity should carry some weight in a decision maker’s determination. If, however an OT makes observations outside of this area of expertise, that evidence may either be dismissed or assessed as having little weight.
This was the case in Mr Demirtas’ cited case of Ray. In that case, the OT (identified in the decisions as Occupational Therapist X) made several factual statements concerning Ms Ray, which the Tribunal ultimately decided were either incorrect or should not be accepted when weighed against other evidence before it.
That aspect of the Tribunal’s decision is best summarised from this extract of Senior Member Parker’s decision:
This exchange between Ms Anderson (the Applicant’s Advocate) and Occupational Therapist X caused the Tribunal to lose confidence that Occupational Therapist X’s opinions were based on an accurate understanding of Mrs Ray’s background, past achievements and her current state of mental health. This is a further reason why the Tribunal does not accept Occupational Therapist X’s evidence, except where indicated in these Reasons for Decision, in relation to the extent of Mrs Ray’s functional incapacity.[50]
[50] Ray v National Disability Insurance Agency [2020] AATA 3452 [148].
Therefore, on my reading of Ray, it does not stand for the proposition that the Tribunal should not rely on the evidence of an Occupational Therapist. Rather, it merely reflects the Tribunal’s decision to not accept certain parts of that witness’ testimony when conflicting evidence was before it.
Mr Demirtas also submitted that the evidence from Ms Gauvin could not be relied upon as she only spent a limited time with him when he had had his conditions for over 25 years. In this regard, he also referred to Ray.
Ms Gauvin provided the Tribunal with significant detail as to her methodology of conducting her assessment of Mr Demirtas. While she acknowledged that she completed other assessments which took more time than she spent with Mr Demirtas, she provided responses to why that was the case. I am satisfied that her methodology was both thorough and fair to Mr Demirtas.
Again, in reference to Ray, the question of the relatively limited time an OT spent in conducting Mrs Ray’s assessment was relevant in the context where that OT’s evidence was in conflict with another practitioner who had been treating Mrs Ray for a significant period of time. The Senior Member also considered that the other medical witness’ qualifications better equipped them to assess the particular s 24(1)(c) activity in question, namely learning capacity:
As indicated above, the Tribunal considers Ms Barry’s evidence about her observations in respect of Mrs Ray to be more reliable than those of Occupational Therapist X, given that Ms Barry has seen Mrs Ray approximately 50 to 60 times in total and Occupational Therapist X has seen Mrs Ray on only one occasion. The Tribunal also considers that Ms Barry’s qualifications as a psychologist would better enable her to assess Mrs Ray ’s learning capacity, than the qualifications of an occupational therapist which are held by Occupational Therapist X.[51]
[51] Ibid [107].
Again, the issue of the limited time spent by the OT with Mrs Ray was only relevant to the question of the weight the Senior Member gave that evidence when faced with conflicting evidence from another clinician who had both significantly longer history with Ms Ray and whose qualifications were more suited to making that assessment.
In Mr Demirtas’ case there is no such conflicting evidence as to his level of functional capacity.
I therefore do not accept his contention that Ms Gauvin’s evidence should be dismissed or discounted.
In his written submission, Mr Demirtas also contended that as Ms Gauvin’s fees were paid by the Agency, and therefore she could not be considered an independent witness.
I do not accept this contention. Independent Medical Examiners engaged by the Agency are required to undertake a fair and impartial assessment and report of an applicant. They are required to affirm this both in their report and any subsequent testimony which Ms Gauvin did. Mr Demirtas has provided no basis for this assertion other than that Ms Gauvin was paid by the Agency. Nothing contained in her report or her evidence to the Tribunal led me to consider that her evidence should not be considered to be a professional opinion based upon the evidence she had before her.
For the reasons outlined above, The Tribunal considers that Mr Demirtas’ assertions as to the overall unfairness of the conduct of the hearing and the disadvantage that caused him are not founded.
CONCLUSION
Mr Demirtas does not meet either the disability requirements or the early intervention requirements to become a participant in the Scheme.
Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth) the decision under review is affirmed.
DECISION
The Tribunal affirms the Decision Under Review not to grant the Applicant access to the National Disability Insurance Scheme, because the Applicant does not meet the access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth). The Tribunal is not satisfied that he meets either the “disability requirements” under s 24 or the “early intervention requirements” under s 25 of the NDIS Act.

I certify that the preceding 299 (two hundred and ninety -nine) paragraphs are a true copy of the reasons for the decision herein of Member A. C. Williams

.............................[sgn]...........................................
Associate
Dated: 13 September 2024

Date(s) of hearing: 3 and 4 July 2024

Date final submissions received:

Applicant:

22 July 2024

Self-represented

Counsel for the Respondent: Ms Julie Buxton

Solicitors for the Respondent: HWL Ebsworth Lawyers
ANNEXURE
Joint Tender Bundle
Respondent’s SFIC  S1
Cardiorespiratory Report  A1
Letter from Dr Ali Al-Fiadh (Interventional Cardiologist)   A2
dated 28 June 2017
Letter from Dr Ali Al-Fiadh (Interventional Cardiologist)   A3
dated 4 May 2018
Letter from Dr Ali Al-Fiadh (Interventional Cardiologist)   A4
dated 7 November 2018
Applicant’s Bank Statement, Commonwealth Bank   A5
Applicant’s Statement of Lived Experience (‘SoLE)  A6
Cardiology Medical Records dated 10 July 2023  A7
Cardiology Medical Records dated 14 July 2023  A8
Email from Applicant attaching letter from Kevin King   A9
Email from Applicant attaching Carers Impact Statement   A10
Email from Applicant attaching response from Healthscope  A11
Respondent’s section 37 ‘T-Documents’ (‘TD’) R1
Medical Records from Moonee Ponds Specialist Centre   R2
Brief to Ira Gauvin (Occupational Therapist)   R3
Functional Capacity Assessment Report of Ira Gauvin   R4
Summons documents produced by Dr Mustafa Ahmet (GP)  SM1
Summons documents produced by Neuroaxis/Dr Girish Nair
(Neurosurgeon)  SM2
Summons documents produced by Mr James Chiu (Orthopaedic
Surgeon)  SM3
Summons material produced by Dr David Packham (Consultant
Nephologist & Physician)  SM4

Summons material produced by Dr Davinder Kochar (Psychiatrist) SM5
Summons material produced by Dr Nicholas Ingram (Psychiatrist) SM6

Date(s) of hearing:	3 and 4 July 2024
Date final submissions received: Applicant:	22 July 2024 Self-represented
Counsel for the Respondent:	Ms Julie Buxton
Solicitors for the Respondent:	HWL Ebsworth Lawyers