DLQM and National Disability Insurance Agency (NDIS)
[2025] ARTA 578
•14 May 2025
DLQM and National Disability Insurance Agency (NDIS) [2025] ARTA 578 (14 May 2025)
Applicant:DLQM
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/5922
Tribunal:Deputy President K Dordevic
Place:Sydney
Date:14 May 2025
Decision:The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024.
......................[SGD]..................................................
Deputy President K Dordevic
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to scheme - reviewable decision of Chief Executive Officer – becoming a participant – Addison’s disease – ADHD – Major Depressive Disorder – anxiety - age and residence requirements met - permanence - substantially reduced functional capacity – weight attributable to medical evidence - disability and early intervention requirements not met - decision under review affirmed
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
National Disability Insurance Agency v Foster [2023] FCAFC 11
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Timofticiuc and National Disability Insurance Agency [2021] AATA 3015Rooney and National Disability Insurance Agency [2021] AATA 3523
Statement of Reasons
This issue requiring determination by this Tribunal is whether DLQM (the Applicant) may become a participant in the National Disability Insurance Scheme (the NDIS or the scheme). To become a participant, the Application must meet the access criteria as prescribed in section 21 of the National Disability Insurance Scheme Act 2013 (the Act).
The Applicant is currently 45 years old. He sought access to the scheme on 12 December 2022 on the basis of impairments arising from Addison’s disease, attention-deficit hyperactivity disorder (ADHD), major depressive disorder and anxiety (collectively, his mental health disorders). On 16 March 2023 a delegate of the Chief Executive Officer (the CEO) of the NDIS determined that the Applicant did not meet the access criteria.[1] The Applicant lodged a timely review to that decision, which was confirmed on 19 July 2023 by a different delegate of the CEO.
[1] T8, folios 71 to 73.
On 15 August 2023 the Applicant made an application to the NDIS Division of the Administrative Appeals Tribunal (the AAT) for an independent review of the decision. From 14 October 2024 the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.[2]
[2] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The Tribunal held a hearing by Microsoft Teams Video on 12, 13 and 20 February 2025. The Applicant was self-represented and supported by Ms Angela Collins, Spinal Cord Injuries Australia. The Respondent, the National Disability Insurance Agency (the Respondent or the Agency) was represented by counsel, Ms Melissa Fisher. The Tribunal was assisted by an interpreter in the Farsi language.
The Tribunal accepted into evidence various documents contained in the joint hearing tender bundle, summoned material and the Respondent’s tender bundle.
The Tribunal also had the benefit of oral testimony provided under affirmation from the Applicant and Ms Melissa Sale, occupational therapist.
PRELIMINARY ISSUE
On 9 October 2024 at the request of the Respondent, the Tribunal issued a summons to produce various documents to Dr Kirtan Ganda, consultant endocrinologist, Newhealth Medical Centre, the Miller Clinic and Dr Atefeh Abdolmanafi, clinical psychologist. These were returnable on 30 October 2024 with the Applicant being granted first access to the documents.
On 6 November 2024 the Tribunal issued an inspection order, allowing the Applicant inspection to the material first. On 12 November 2024, the Applicant objected to Respondent’s inspection to the summonsed material. By email dated 28 November 2024, the Applicant categorised summonsed documents into files which he consented to releasing and those documents he objected to the Respondent’s inspection.[3] He did not indicate whether he consented or objected to the release of Dr Abdolmanafi’s documents under either category. The subsequent inspection order dated 20 January 2025 did not specifically address the Respondent’s inspection of Dr Abdolmanafi’s documents.
[3] These are summarised at paragraph 8 of the Respondent’s submissions dated 12 December 2024.
Dr Atefeh Abdolmanafi, clinical psychologist, was required to provide the following documents in his possession:
All records (including all electronic, paper or archived documents) concerned [the Applicant] (DOB) including but not limited to all medical and psychological records, reports, letters of referral, specialist reports, and all reports arising from or otherwise relating to any treatment or testing whatsoever, including but not limited to investigative, comparative and secondary tests, clinical notes, correspondence, letters, statements, treatment cards and discharge summaries.
On 1 November 2024 Dr Abdolmanafi produced summonsed material.
At hearing the Applicant specifically advised that he did not object to the release of most of the material produced by Dr Abdolmanafi; largely his submissions were that any material relating to his familial relationships should be excluded as they were not relevant to the issues requiring determination.
The Respondent advocated for the release of all documents without redaction.
The Tribunal found the Applicant’s arguments persuasive and made orders pursuant to subsection 78(6) of the Administrative Review Tribunal Act 2024 (Cth) to provide copies of the documents provided by Dr Abdolmanafi to the Respondent after redacting information not relevant to the review.
The Tribunal also issued an order, pursuant to subsection 70(1) of the Administrative Review Tribunal Act 2024 (Cth) that the name and any other information tending to reveal the identity of the Applicant as well as the specific details contained within the therapeutic notes authored by Dr Abdolmanafi in summonsed materials numbered 9 to 10 were not to be published.
LEGISLATIVE FRAMEWORK
To be granted access to the NDIS and so become a participant of the scheme, the Applicant must satisfy the access criteria set down in section 21 of the Act which provides:
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
I note that the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (the amending Act) commenced on 3 October 2024. Sections 24 and 25 of the Act were amended by the amending Act. However, section 126 of the amending Act is only applicable to access requests lodged on or after 3 October 2024.
Therefore, as the Applicant’s application was made before 3 October 2024, the Tribunal had regard to the provisions of the Act that were in place prior to that date.
Section 24 of the Act states:
(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.
If the Applicant does not satisfy the disability requirements, the Tribunal must then consider whether he meets the early intervention requirements set down in section 25 of the Act:
(1) A person meets the early intervention requirementsif:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has a developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
…
Subsection 209(1) of the Act permits the Minister to make rules prescribing certain matters. Section 27 of the Act provides that NDIS rules may make provision for determining any matter for the purposes of sections 25 and 26 of the Act, including methods or criteria, or matters that may, must or must not be taken into account, or circumstances in which a matter can be taken to exist or not exist.
The rules relevant to this application are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules), which form part of the legislation.
Relevant to the issue of permanency of an impairment set down at paragraph 24(1)(b) of the Act, the Access Rules relevantly state:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
As to the issue of substantially reduced functional capacity as set down in paragraph 24(1)(c) of the Act, the Access Rules state:
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy. The case law is well established; to the extent that policies are consistent with the legislation, decision-makers should have regard to them unless there are cogent reasons not to.[4] In assessing the Applicant’s claim the relevant operational guideline is Applying to the NDIS[5] (the Access Guideline).
[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[5] Dated 14 October 2024.
The case law developed in this jurisdiction is also of assistance. In the matter of Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) Mortimer J (as she then was) stated that the legislative regime:
contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
…No qualitative judgements in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do…[6]
[6] Mulligan, at [55]-[56].
This approach was endorsed by the Full Court in National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster).[7]
[7] Foster, at [64].
MEDICAL EVIDENCE
The Tribunal had regard to the following medical evidence before it, summarised as follows.
Dr Chan Tran, endocrinology registrar, Concord Repatriation General Hospital, advised on 2 July 2018 that the Applicant suffers from adrenal insufficiency, which can be a life-threatening condition requiring rapid access to emergency medical care if he were to become unwell and be unable to take his medications (such as vomiting). Dr Tran opined that the Applicant therefore requires work that is land based.[8]
[8] JTB, T3
Dr Kirtan Ganda, endocrinologist, reported on 13 July 2018 that the Applicant was newly diagnosed with primary adrenal insufficiency.[9] Medications saw an improvement in his symptoms, including improvement in appetite, decreased dizziness and his cognitive response time has improved. He did experience numbness in the hands and feet in the last two weeks, especially when driving. On 29 August 2023 Dr Ganda reported that there was much improvement since commencing hormone replacement therapy. On 19 November 2018 Dr Ganda reported that the Applicant was much improved, but still had occasional episodes of dizziness and nausea. On 4 March 2019 Dr Ganda reported that the Applicant was well since the increase in his hormone therapy. On 7 July 2020 the Applicant reported to Dr Ganda that he feels well, though has ongoing tiredness during the day.
[9] JTB, T4.
On 20 July 2021 Dr Parisa Fatemeh Arianejad, dermatologist, reported that the Applicant suffers from psoriasis. On 22 October 2021 Dr Arianejad reported that the psoriasis had responded well to treatment.
A review was undertaken by Dr Ganda on 6 August 2021, noting that the last review was mid-2020. The Applicant reported that he has been well over the last few months and has no acute illness.[10] A further review took place on 17 December 2021, whereby the Applicant reported that his energy levels were good after the reduction in his hydrocortisone dose and that he feels well apart from tiredness. Dr Ganda concluded that the Applicant was clinically stable.
[10] JTB, T5.
On 20 February 2022 Dr Atefeh Abdolmanafi, clinical psychologist, advised that the Applicant was referred for the treatment of depression and anxiety and has been receiving psychological support since 2022. The Applicant’s main complaints are fatigue, lack of energy and motivation, depression and anxiety symptoms related to a sense of hopelessness and lack of concentration. He has been diagnosed with major depressive disorder, ADHD and severe anxiety. Therapy and pharmacological treatment have resulted in minimal progress. He requires long term, ongoing treatment to manage these conditions.[11]
[11] JTB, T1B.
On 2 April 2022 Dr Javed Sheriff, cardiologist, reported that the Applicant was referred for cardiac assessment in the context of commencing stimulants for the treatment of his ADHD. No cardiac contraindication for ADHD medication was noted following an echocardiogram. On 11 April 2022 Dr Sheriff reported that the Applicant had been non-compliant with his rosuvastatin; repeat blood tests were ordered for a few months to check his lipid profile. On 30 April 2022 Dr Sheriff reported that the Applicant is largely well from a cardiac perspective.
It is apparent that on 11 April 2022 Dr Adnan Younus, psychiatrist, diagnosed the Applicant with ADHD, inattentive subtype. This diagnosis was reached on the basis of a DIVA completed by the Applicant’s wife and questionnaires completed by the Applicant which identified inattentive symptoms.[12]
[12] Summoned material from the Miller Clinic
On 16 May 2022 Dr Younus confirmed the Applicant was diagnosed with ADHD, inattentive subtype and is currently on Ritalin for the management of his inattentive symptoms.[13] On the same day Dr Younus wrote to Dr Majid Golshan Moghadam, general practitioner, advising that Ritalin had helped with the Applicant’s memory, focus, ability to control and manage stressful situations, reduced distractibility and improved motivation and energy. On 31 May 2022 a telephone consultation took place between Dr Younus and the Applicant due to the effects of medication. The Applicant was advised to reduce his Ritalin dose as he was experiencing side-effects. On 7 June 2022 the Applicant emailed Dr Younus and stated that he had reduced his Ritalin to minimise side-effects (which was achieved) however, he does not believe that the current dosage assists with his ADHD symptoms. The Applicant consulted Dr Younus on 8 June 2022 and reported that he had not filled his Ritalin script. The Applicant was prescribed dexamphetamine.[14]
[13] JTB, T6.
[14] Summoned material from the Miller Clinic
On 12 September 2022 Dr Younus undertook a review. The Applicant reported that he is tolerating dexamphetamine but found Ritalin more effective. The Applicant denied depressed mood. On 5 October 2022 Dr Younus reported that he had reviewed the Applicant on the same day. He reported that he is tolerating dexamphetamine and denied depressive symptoms. The Applicant also reported improved motivation, ability to manage his parenting responsibilities and ability to manage his inattentive symptoms.[15]
[15] Summoned material from the Miller Clinic
There are in evidence handwritten notes by Dr Abdolmanafi from sessions from June to December 2022,[16] marked sessions 1 to 8. Dr Abdolmanafi noted that there was a history of anxiety, depression, ADHD with the Applicant’s first episode of depression when he was about 20 years of age.
[16] Respondent’s Supplementary documents (RSD), 5 to 14 noting that the month at 5 is not clear, however, it is apparent that it occurred before July 2022, which is when the second session occurred.
On 4 November 2022 the Applicant emailed Dr Younus and advised that the Applicant had used dexamphetamine for about one month but was not able to tolerate its side effects. Instead, he wanted to trial Ritalin again, as it provided some positive effects for him.[17] Dr Younus’s file note dated 7 November 2022 notes that the Applicant reported that he did not find dexamphetamine effective and has not taken the medication since October 2022. He was provided with a script for Ritalin.[18]
[17] RTB, 108.
[18] Summoned material from the Miller Clinic
Dr Ganda reported on 2 December 2022 that the Applicant’s Addison’s disease was diagnosed in 2018 and has been appropriately managed. However, the Applicant still feels generalised muscle weakness, which seems to deteriorate through the day and improves with rest. He finds it difficult to walk more than 15 minutes. He has no difficulties with his vision or swallowing and can perform his personal activities of daily living, however due to extreme fatigue and muscle weakness, he is unable to perform cleaning tasks and move furniture. Dr Ganda opined that the Applicant’s symptoms have adversely affected his mental health and depression. Dr Ganda went on to confirm that primary adrenal insufficiency is a permanent condition.[19]
[19] JTB, T1A.
On 8 December 2022 the Applicant was reviewed by Dr James Jabbour, ophthalmic surgeon. Dr Jabbour stated that the Applicant has exophoria and symptoms of convergence insufficiency and early presbyopia. The Applicant is to update his spectacles and undertake convergence exercised.
On 12 December 2022 Dr Ganda completed the treating professional information form attached to the Applicant’s application to become a participant of the scheme.[20] He confirmed the diagnosis of Addison’s disease, ADHD and depression. The expected results of his current treatment were to maintain his energy levels and blood pressure, noting that there were not any available treatments or interventions that would substantially relieve the Applicant’s impairment. Dr Ganda opined that there were some early intervention supports that may alleviate and improve the Applicant’s functional capacity. These were to avoid sudden physical exertion due to sudden onset of tiredness to prevent falls and further functional deterioration. The domain that substantially impacted on the Applicant’s functional capacity was self-care; he would require help with moving heavy furniture and the provision of a cleaner once a fortnight. Dr Ganda (again) reported that the Applicant is unable to walk for more than 15 minutes.
[20] JTB, T7.
On 20 February 2023 Dr Abdolmanafi wrote to the Agency in support of the Applicant’s access claim. Dr Abdolmanafi reported that the Applicant experiences insomnia, extremely low concentration, forgetfulness and disturbed appetite, anger problems, depressed mood and fear and anxiety as well as loss of motivation to engage in daily activities. His ADHD also significantly reduces his functional abilities. Minimal progress has been noted. The Applicant requires long term on-going treatment and being granted access to the scheme would improve his mental health. Dr Abdolmanafi’s handwritten notes from sessions dated 24 February 2023 state that the Applicant reported that though he was prescribed anti-depressant medication he did not take it.
On 23 March 2023 Dr James Choi, dermatologist, immunologist and allergist, undertook a review of the Applicant.[21] He reported that the Applicant felt tired during the day. He was of the opinion that the Applicant’s tiredness was not likely due to his Addison’s disease and may be due to apnoeic events at night. He recommended that the Applicant undergo a sleep study.
[21] RTB, 74 to 75.
On 10 May 2023 Dr Mahasty Taheri, general practitioner, referred the Applicant to ResSleep for opinion and management, querying obstructive sleep apnoea, reporting symptoms of snoring, lethargy and day time somnolence.[22]
[22] RTB, 76 to 77.
On 12 May 2023 Dr Ganda reported that since the introduction of fludrocortisone the Applicant’s muscle weakness had improved.[23] Nil fatiguability or muscle weakness was reported at the assessment.
[23] RTB, 78 to 79.
On 9 June 2023 the Applicant reported to Dr Taheri that he is responding to therapy slowly and would like to continue with psychological counselling.[24]
[24] RTB, 43.
On 12 November 2022,[25] 9 and 30 January 2023,[26] 9 June 2023[27] and 23 October 2023[28] Dr Abdolmanafi completed progress reviews, reporting that the Applicant showed progress after six sessions. However, Dr Abdolmanafi was of the view that the Applicant will require further sessions to improve his anxiety and depression symptoms.[29]
[25] Respondent’s Supplementary documents (RSTB), 3.
[26] RSTB, 1.
[27] RTB, 81.
[28] RSTB, 2.
[29] Summons material.
On 20 June 2023 Dr Ganda provided a further report in support of the Applicant’s access claim. He reported that Addison’s disease results in significant functional limitations that necessitate continuous and substantial support and so the Applicant requires disability-specific support to carry out daily tasks and manage his life. The physical and psychological manifestations of the disease affects his communication, socialisation and learning abilities. The Applicant cannot walk for more than 15 minutes without rest. This significantly impacts on his day to day life. Though the Applicant can perform personal care tasks, tasks such as cleaning and moving furniture are impossible for him to complete. His depression and anxiety symptoms also compromise his ability to manage daily tasks. As his energy levels are unpredictable, it disrupts his capacity to maintain regular work, study and engage in routine activities. He may also experience Addisonian crises. Dr Ganda stressed that the chronic and potentially life-threatening nature of Addison’s disease must be considered when assessing the impact of the Applicant’s functional capacity. [30]
[30] JTB, T1C.
On 1 July 2023 Dr Abdolmanafi reported that significant progress had been observed.[31] The Applicant had shown improvements in mood regulation, symptom reduction and increased coping skills. It was recommended that therapy continue. Dr Abdolmanafi’s handwritten notes from sessions 16 and 17, dated 20 March 2023 and 17 April 2023,[32] indicate that the Applicant reports feeling better since taking his anti-depressant medications; he is able to control his emotions and stay calm. He also reported with social anxiety. Handwritten notes from sessions dated 9, 23 and 30 July 2023 (sessions 7, 11 and 13)[33] refer to the Applicant’s interpersonal relationships causing him anxiety and his depressive symptoms.
[31] RTB, folio 82.
[32] RSTB, 20 to 23.
[33] RSTB, 15 to 17
On 7 August 2023 Dr Younus wrote to Dr Moghadam advising that he had reviewed the Applicant on the same day. The Applicant had reported that he had trialled an anti-depressant about three months ago, took it for two months and then stopped it as though it was helping with emotional regulation he was not feeling happier. He reported better concentration with Ritalin but has not taken it due to a dry mouth. The Applicant also reported that he has been selected as employee of the year. A file note authored by Dr Abdolmanafi dated 28 August 2023 states that the Applicant ceased Ritalin and changed anti-depressant medications.[34]
[34] Summoned material from the Miller Clinic
In response to the summons Dr Abdolmanafi also provided nine undated file notes described as “Clinical Notes Part 3”. These indicate that the Applicant reported that he was very depressed and cannot focus, attend to activities and or retain any learning. He was also having difficulties waking in the morning and reported that he is not taking his anti-depressant medication until late in the day. He also reported ceasing Endep medication whilst he was in Iran but commenced again upon his return. Another file note reflects that the Applicant was reviewed by Dr Aghdaee where a change to his medications was recommended. The Applicant reported that he did not start the recommended anti-depressant because of fear of side effects. He reported low mood, energy and motivation. In later sessions he reported that he dis not find anti-depressants helpful and is anxious about the impact his divorce will have on his child. He also reported social isolation which has exacerbated his depression and anxiety symptoms.
On 8 August 2023 the Applicant sent an email to Dr Younus which read:
Dear Sir/Madam,
I am writing to provide medical input on the severe implications of Attention Deficit Hyperactivity Disorder (ADHD) on my patient, [the Applicant], as this condition critically affects his day-to-day functioning.
[The Applicant] has been under my care for his ADHD condition, and throughout our sessions, it has become unequivocally evident how ADHD, combined with his other diagnosed conditions such as Major Depressive Disorder, Severe Anxiety, and Addison’s disease, has compounded the debilitating effects on his daily life.
ADHD is a neurodevelopmental disorder that primarily affects attention, impulse control, and activity levels. In [the Applicant]'s case, this translates to:
Communication: ADHD impairs his ability to focus on conversations, leading to misunderstandings and challenges in both personal and professional relationships.
Socializing: His impulsivity, combined with the often coexisting symptoms of anxiety and depression, makes social interactions arduous. These factors can culminate in feelings of isolation, exacerbating his depressive symptoms.
Learning: ADHD inherently affects attention span, making the assimilation of new information particularly challenging. Coupled with his severe anxiety, the process of learning can become an overwhelming experience for him.Self-Care & Management: ADHD can manifest in forgetfulness, which affects basic tasks such as adhering to medication schedules, appointments, and routine chores. This aspect is further complicated by his Addison's disease and the associated symptoms of fatigue and muscle weakness.
Furthermore, [the Applicant]’s history indicates a consistent struggle with treatments. Stimulant medications like Ritalin and Dextroamphetamine were trialed for his ADHD but had to be discontinued due to significant side effects without notable positive outcomes.
In light of the comprehensive insights provided by Dr. Atefeh, his psychologist, it is also crucial to underscore that ADHD often coexists with other mental health conditions, further straining the individual's capacity to cope. In [the Applicant]'s situation, his ADHD seems to exacerbate, and in turn, be intensified by his depression and anxiety, creating a vicious cycle that impedes functional improvement.
It is my strong medical opinion that [the Applicant]'s combination of ADHD, Major Depressive Disorder, Severe Anxiety, and Addison’s disease forms a complex web of challenges. These combined impairments drastically reduce his functional capacity, affecting every facet of his life. It is imperative to consider the holistic impact these conditions have on [the Applicant]'s overall wellbeing.
I urge the NDIS to take into account the cumulative effect of these disorders on [the Applicant]'s life, and the genuine need for support, which would be most effectively delivered through the services of the NDIS.
Thank you for your kind consideration.
Yours sincerely,
Dr Adnan Younus
In a letter dated 11 August 2023 Dr Younus confirmed the Applicant’s diagnosis of major depressive disorder, ADHD and anxiety disorder.[35] A trial of stimulant to help manage his ADHD symptoms had limited to no benefits in respect of his inattentive symptoms. His ongoing inattentive symptoms and depressed mood continue. Dr Younus opined that the Applicant’s psychiatric condition is chronic, permanent and ongoing and the Applicant will continue to experience flareups of depressive and anxiety symptoms and ongoing inattentive symptoms will continue to impact his functioning. Adjustments to his medications are unlikely to have further benefits. Engagement with his psychologist and ongoing psychological sessions will help with his recovery.[36]
[35] JTB, A1.
[36] T1E.
On 6 September 2023 Dr Younus wrote to Dr Taheri stating that he had reviewed the Applicant on that day.[37] He reported less depression, improved ability to regulate his emotions, an ability to enjoy pleasurable activities, that his work is going well and that he denied depressive cognitions. Dr Younus also reported that the Applicant had advised that he received an award and praise at work.
[37] RTB, 83 to 84.
On 10 October 2023 the Applicant’s advocate, Ms Angela Collins, Spinal Cord Injuries Australia, wrote to Dr Younus and requested that his letter dated 11 August 2023 be amended at the last line to read: “He is engaged with psychologist and ongoing psychological sessions to support stabilisation of his conditions”.
On 11 October 2023 Dr Younus largely repeated his 11 August 2023 letter.[38] He noted that the Applicant is stable on a dose of Nortriptyline, that a trial of stimulant to help manage his ADHD symptoms had limited to no benefits in respect of his inattentive symptoms and that his ongoing inattentive symptoms and depressed mood are chronic. The final sentence of the letter read: “He is engaging with psychologist and ongoing psychological sessions will support to stabilise his conditions”.
[38] JTB, A1.
Ms Melissa Sale, occupational therapist, conducted an independent medical assessment on 7 November 2023 and provided her report on 5 December 2023.[39] In summary, Ms Sale found that the Applicant would have difficulty with tasks that involve mobilising for more than 15 minutes without rest, lifting and carrying moderate to heavy items, performing anything other than light activity due to fatigue, engaging in tasks that require sustained periods of concentration, high level executive functioning with severely fatigues, confidently forming and maintaining friendships, driving for more than one hour and performing tasks that require a moderate to high level of physical endurance or strenuous activities requiring exertion. Ms Sale concluded that the Applicant was independent in the domains of communication, learning and mobility. He requires ongoing psychological support in the domain of social interaction and to maintain his independence and safety in self-care he should keep a selection of pre-prepared frozen meals for days he cannot prepare a meal, engage with an occupational therapist to be education in energy conservation, commercial assistance with heavy household cleaning (currently self-funded or performed by a family member) and provision of aids and equipment to boost self-care and self-management independence.
[39] JTB, R1.
Ms Sales reported that during the assessment the Applicant stated that on his average days he can perform his work duties and meet his job requirements in full, as well as his personal care and light domestic tasks. He has about 20 average days per month. He does little physical activity on these days to conserve his energy. On his bad days he experiences fatigue and muscle weakness as well as episodes of dizziness. He cannot attend to simple tasks and has trouble working. His fatigue and muscle weakness impacts on his mood and he becomes irritable.
The Applicant consulted Dr Taheri on 19 April 2024 where he reported an exacerbation of his depression and anxiety symptoms. On the same day Dr Taheri referred the Applicant to Dr Maryan Aghdaee, psychiatrist, for management following an exacerbation of his chronic depression and anxiety. On 17 May 2024 Dr Taheri referred the Applicant to Mr Nenad Vlaisavljevic, exercise physiologist, for an exercise strengthening treatment.[40]
[40] Summons material
On 6 May 2024 Dr Abdolmanafi reported that Dr Taheri referred the Applicant for treatment of his anxiety and depression and he has been her patient since September 2022.[41] The 10 annual sessions allocated under Medicare are insufficient to adequately address his requirements for effective treatment and support. He requires a more intensive and sustained therapeutic approach, requiring additional sessions. His mental health challenges demand ongoing support to manage his symptoms, enhance his coping and improve his overall quality of life and prevent decline. On 17 June 2024 Dr Abdolmanafi completed a progress review reporting that the Applicant was experience stressful circumstances as he was in the process of divorce and would benefit from additional sessions.[42]
[41] JTB, A2.
[42] RTB, 95.
On 21 May 2024 Dr Sheriff reported that the Applicant had inappropriate stenting whilst in Iran following chest pain. Dr Sheriff was of the view that the chest pain experienced by the Applicant was not related to his cardiac status.[43]
[43] Summons material
On 31 May 2024 the Applicant had his biannual consultation with Dr Ganda, who reiterated that since the introduction of fludrocortisone the Applicant’s muscle weakness had improved.[44]
[44] Summons material
Dr Taheri stated on 25 June 2024 that the Applicant has been his patient since 21 March 2018.[45] The Applicant primarily suffers from Addison’s disease and depression, in addition to other complications, which have an adverse impact on his functional capacity and are lifelong and significant. Over the years the Applicant has been referred to a psychologist and exercise physiologist under management and mental health plans; however, these are not sufficient. The Applicant experiences debilitating chronic fatigue and muscle weakness and is at constant risk of unpredictable and potentially life-threatening Addisonian crises. Therefore, he requires a much higher level of support than is available under the Medicare system. He also requires assistance in the domains of mobility and self-care, due to his chronic fatigue, muscle weakness and unpredictable mood. He cannot walk or stand for long periods and has a reduced capacity to cook, clean and shop. He also requires medication prompting; non-adherence with his medication could be life threatening. The Applicant’s daily life, independence and functional capacity is impacted to a significant degree.
[45] JTB, A4.
On 25 June 2024 Dr Ganda reported that the depression and anxiety caused by Addison’s disease significantly impacts the Applicant’s communication, socialisation and learning abilities. The Applicant finds it difficult to engage in social activities, communicate effectively with others and concentrate on learning new tasks of information. Dr Ganda opined that the Applicant required assistance with shopping as it increases his physical and mental strain, extreme fatigue prevents him from performing cleaning tasks, he cannot stand for long periods and so without assistance cooking is difficult and the effort to iron is beyond his capacity. A robotic vacuum, assistance with personal care and household tasks and access to a transport service to undertake shopping and other activities would be beneficial for the Applicant.[46]
[46] JTB, A3 (noting that it is incorrectly tabbed as A33).
On 18 July 2024 Dr Maryam Aghdaee, psychiatrist, reported that she had undertaken a review of the Applicant.[47] She reported that the Applicant presented with symptoms of major depressive disorder and significant social anxiety. She noted that his depression is chronic, but partially treated. Dr Aghdaee stated that he provided a history of symptoms consistent with ADHD and has been diagnosed with the condition by another psychiatrist. She was of the view that ADHD is relevant and needs to be treated, noting that Addison’s disease has psychiatric symptoms consistent with depression and so he requires optimal management of this condition. She went on to state that though his depression is chronic, it is partially treated and so she suggests switching from Nortriptyline to Zyban, which is a medication that can be used for ADHD. As part of his treatment Dr Aghdaee reported that she will continue to assess him for ADHD, will change to his medications a review to take place in eight weeks.
[47] RTB, 96 to 98.
On 23 October 2024 Dr Abdolmanafi against wrote in support of the Applicant’s accessing the scheme.[48] The Applicant has reported that he has been experiencing severe depression and anxiety since his early 20’s. Despite medication and therapy his symptoms remain persistent and debilitating. He reports chronic low mood, pervasive feelings of depression, significant challenges in social interactions and limited personal relationships. His condition has shown minimal improvement and he continues to struggle with daily tasks. He also reports memory issues, such that he forgets important information, including details from recent therapy sessions. His severe anxiety and depression makes it extremely difficult for him to communicate effectively, understand social cues and form or maintain relationships. He avoids social interactions and potential work as he finds such interactions distressing and overwhelming. This severely impacts on his emotional wellbeing, and mental health and significantly reduces his overall quality of life and participation in daily activities. Despite therapy, no functional gains are expected; his condition is unlikely to improve and he will require ongoing support to manage his mental health. The episodic nature of the condition means that though there may be periods of relative stability, his overall functioning remains impaired.
[48] JTB, A5.
In his Statement of Lived Experience the Applicant declared that he was unable to continue his employment as a marine officer after his diagnosis of Addison’s disease and currently works as a software tester, working solely from home.[49] His Addison’s disease diagnosis means that he experiences fatigue which severely hinders his ability to maintain consistent work or engage in social activities. It also impairs his cognitive functions. His mobility is significantly affected by muscle weakness and fatigue and cleaning is a significant challenge for him. However, he can manage his personal care tasks. He requires assistance with personal care and household tasks such as cooking and cleaning and transport to the shops and other activities. A robotic vacuum would also assist. His ADHD leads to procrastination and missing many deadlines. His depression and anxiety impacts on his social life as he self-isolates. He requires more than the standard Medicare sessions. His ADHD makes it hard for him to engage in prolonged conversations or effectively express himself, learn new tasks. He experiences severe social anxiety, making it hard to initiate and maintain conversations. He reports that his friends provide him with sporadic assistance. Without such support he is at risk of further physical and mental decline.
CONSIDERATION
[49] JTB, A6.
Age and residency requirements
I find that the Applicant was under 65 years of age when he requested access to the scheme. I am also satisfied that the Applicant resides in Australia and is an Australian citizen.
Paragraphs 21(1)(a) and (b) of the Act are satisfied.
Therefore, I must determine whether the Applicant meets the access criteria as set down in section 24 (the disability requirements) or section 25 (the early intervention requirements).
Disability requirements
Does the Applicant have a disability attributable to an impairment?
The medical evidence before me indicates that the Applicant has a disability that is attributable to physical impairments arising from Addison’s disease, neurological impairments arising from ADHD and psychosocial impairments arising from his diagnosis of depression and anxiety.
Therefore, paragraph 24(1)(a) of the Act is satisfied.
Are the Applicant’s impairments permanent or likely to be permanent?
As Mortimer J in Davis explained, it is the impairment, and not the medical condition, that must be permanent:
The critical point is that “permanent” is used as an adjective in s 24(1) to the noun “impairment” (or in the plural, “impairments”). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.[50]
[50] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), [86].
Therefore, the Tribunal must be satisfied that there are no treatments that may remedy the impairment. Mortimer J went on to explain that ‘remedy’ means something approaching a removal or cure of the impairment.[51]
[51] Davis, [136]-[137].
I have already set down the relevant Access Rules at paragraph 22.
The Respondent accepts that impairments flowing from the Applicant’s physical impairments arising from Addison’s disease are permanent or likely to be permanent but does not accept this criterion is met for his other impairments.
The Applicant has been a long-standing patient of Dr Ganda, who reports the Applicant is compliant with his hormone replacement therapy. It is also apparent that the Applicant undergoes regular reviews with Dr Ganda. There is no evidence before me to suggest that there are any other medications or treatments that are likely to result in improvement in the Applicant’s muscle weakness or fatigue. The Applicant confirmed in his oral evidence that he has not undergone an Addisonian crisis since diagnosis. I am satisfied that the impairment arising from the Applicant’s Addison’s disease is permanent for the purposes of paragraph 24(1)(b) of the Act.
In reaching that conclusion I note that one of the symptoms of Addison’s disease is fatigue; however, this is a suggestion that part of the Applicant’s fatigue may be caused by sleep apnoea. There is evidence that Dr Taheri referred the Applicant to ResSleep on 10 May 2023 for opinion and management as the Applicant reported symptoms of snoring, lethargy and day time somnolence. There is no evidence before the me to suggest that the Applicant underwent a review by a sleep physician and therefore I cannot conclusively find that the fatigue symptoms experienced by the Applicant arise only from his Addison’s disease. In any case, as outlined below, I am not persuaded that the degree of lethargy the Applicant experiences overall is sufficient to give rise to a finding that this impairment gives rise to a substantially reduced functional capacity in any of the five domains listed in paragraph 24(1)(c) of the Act.
Furthermore, whilst I accept the Applicant’s oral testimony that he did not comply with the exercise regime specifically tailored by an exercise physiologist I am not satisfied that adherence to this (or any other) exercise program would result in significant improvement in his functioning. It is apparent that the Applicant’s symptoms of fatigue and muscle weakness have remained stable (though fluctuating on a daily or day to day basis) since diagnosis and so I conclude that there is no medical evidence to indicate that these impairments would improve should the Applicant comply with the exercise program.
I next considered the neurological condition of ADHD.
Whilst Dr Abdolmanafi refers to the diagnosis in his letter dated 20 February 2022 and soon after the Applicant was referred for cardiac testing performed by Dr Sheriff on 2 April 2022 prior, it is apparent that on 11 April 2022 Dr Younus diagnosed the Applicant with ADHD. The medical evidence suggests that the Applicant commenced pharmacotherapy and initially advised Dr Younus that it helped with his memory, focus, ability to control and manage stressful situations, reduced distractibility and improved motivation and energy. However, some 15 days later the Applicant reported side-effects. A week later the Applicant had reported that following reducing his Ritalin dosage there had been a reduction in side-effects, but he did not believe that it has assisted with his ADHD symptoms. The next day, being 8 June 2022, the Applicant advised Dr Younus that he had not filled his Ritalin script and so he was prescribed dexamphetamine. On 12 September 2022 the Applicant advised that he was tolerating the dexamphetamine but found Ritalin more effective; on 5 October 2022 Dr Younus reported, following review on that day, that the Applicant was tolerating the dexamphetamine and reported improved motivation, ability to manage his parenting responsibilities and ability to manage his inattentive symptoms. On 4 November 2022 the Applicant emailed Dr Younus and advised, in contradiction to Dr Younus’s record of their consultations, that he had only used dexamphetamine for about one month but was not able to tolerate its side effects. On 7 November 2022 Dr Younus provided the Applicant with a script for Ritalin.
On 20 February 2023 Dr Abdolmanafi reported that the Applicant experiences extremely low concentration, forgetfulness as well as loss of motivation to engage in daily activities. His ADHD also significantly reduces his functional abilities, without further elaboration. Dr Abdolmanafi reported that the Applicant had advised on 7 August 2023 the Applicant had ceased taking Ritalin due to a dry mouth.
In July 2024 the Applicant underwent another psychiatric assessment. Dr Aghdaee determined that she would continue to assess the Applicant for ADHD, noting that in his case his ADHD is relevant and needs to be treated. She prescribed tapering his Nortriptyline and commencing Zyban for treatment of his depression and ADHD.
At hearing the Applicant stressed that his ADHD is a lifelong neurological condition and so is permanent. The Agency should provide evidence of available treatments that indicate that this condition does not require lifelong treatment. I understand his evidence to mean that this condition cannot be cured. He declared difficult in focusing, impaired attention, executive function, planning and organisational skills which impedes his capacity to complete daily tasks. He confirmed that when taking stimulant medication he would only take it a few times per week and did report to Dr Younus some improvement in his concentration. He stated that he did take Zyban for some months (possibly August 2024 to February 2025) but ceased it as he did not have any benefits and he suffered side-effects. He did not return to see Dr Aghdaee as he could not locate the forms he completed for Dr Younus that led to the diagnosis of ADHD. He explained that without those forms it would be useless to consult with her again.
The Applicant testified that he drafted the letter for Dr Ganda to sign.[52] He explained that he wrote the parts of the letter that refer to his symptoms and feelings and Dr Ganda prepared the final letter. He also included in the draft the sub-headings addressing mobility, self-care and self-management and the descriptions following each sub-heading. However, he stressed that the letter should be relied upon as Dr Ganda endorsed the information contained within as evidenced by adopting it.
[52] JTB, T1C.
I accept that ADHD is a lifelong neurological condition. It is not apparent that the Agency disputes this. However, the use of the term ‘permanent’ in the context of access claims should not be conflated with the ordinary meaning of the term.
I accept that the Applicant has been diagnosed with ADHD. I so do despite the evidence indicating that the ADHD diagnosis was not based on a comprehensive testing, but rather on the Applicant’s self-report and his wife completing a DIVA assessment. Further, it is not apparent that Dr Younus or any of the Applicant’s other treating doctors investigated whether the Applicant’s Addison’s disease was contributing to the Applicant’s inattentive symptoms or there were other medical conditions that may explain these symptoms.
There is conflicting evidence about the Applicant’s compliance with the pharmacological regime and the impact on his symptoms. Soon after the Applicant drafted a letter for Dr Younus in support of his access Applicant, Dr Younus adopted the Applicant’s statement that the stimulant medication had limited to no benefits in respect of his inattentive symptoms.[53] This is in direct contrast to the statements made by Dr Younus in correspondence to the Applicant’s general practitioner on 16 May 2022, 5 October 2022, 4 November 2022 and 7 August 2023 where the Applicant had reported benefits in taking the stimulant medication.
[53] JTB, T1E.
The Applicant did not call Dr Younus as a witness so clarification regarding the treatment regime and the contradiction between his contemporaneous correspondence to the Applicant’s general practitioner and the letters apparently authored to support the Applicant’s access application. I prefer Dr Younus’s contemporaneous record over the letters dated 11 August and October 2023 which appear to have simply adopted parts of the Applicant’s draft letter dated 7 August 2023.
It is not clear on the medical evidence and the Applicant’s own testimony, that a discussion took place with any of his treating medical doctors as to how to address his only declared symptom of a dry mouth so that he could continue to take his medication. I am not persuaded that the reported symptom of a dry mouth and nothing more means that this treatment is not appropriate or suitable for the Applicant.
I am not persuaded that all medical treatments and review to address the impairments arising from the Applicant’s ADHD condition are exhausted such that I can be satisfied that the permanency of the impairment is demonstrated. The Applicant’s treating psychiatrist did report that there were a reduction in the functional impairments arising from this condition when the Applicant was compliant with pharmacological treatment. I am satisfied that there are available and appropriate evidence-based treatment that may remedy the impairment, being pharmacological treatment: National Disability Insurance Agency v Davis [2022] FCA 1002 at [136].
I conclude that that the Applicant’s condition of ADHD is not permanent for the purposes of the Act. Paragraph 24(1)(b) of the Act is not satisfied in respect of the impairments arising from the Applicant’s neurological condition.
I next considered the Applicant’s mental health conditions.
At hearing the Applicant stressed that his psychological conditions are chronic and persistent despite treatment and are unlikely to improve without a significant treatment program. He referred to a medical journal that states that even when there are improvements in depressive symptoms, relapse may occur. He explained that he ceased taking Nortriptyline in December 2023 as the side-effects outweighed the benefits. He went on to state that the medication did not help much at all. He conceded that he had reported to Dr Younus improvements upon commencing anti-depressants but stated that this reduced over time; he stated that it was the nature of anti-depressants that they lose their effectiveness. He also reported strong side-effects from the medication. He simply stopped the medication rather than reducing over time, without medical supervision.
The Applicant cautioned the Tribunal against placing too much weight on Dr Aghdaee’s report, stressing that it is in contradiction to the evidence provided by his treating psychiatrist and clinical psychologist of long-standing.
Given the medical history suggests non-compliance with medications to address his symptoms arising from his mental health conditions, I am not satisfied that the applicant has received optimal treatment and review of his mental health disorders. The medical evidence indicates that he has responded well to pharmacological treatment but soon after reporting such shifts, he discontinues treatment without titration of his medication on the basis of side-effects and then reports a marked deterioration in his symptoms.
I am not satisfied that, without the benefit of further treatment and review, the Applicant’s impairments arising from his mental health conditions of major depressive disorder and anxiety would not improve. The evidence again suggests that there is a disconnect between the Applicant’s self-report of symptoms as recorded by Drs Abdolmanafi and Younus and their letters of support regarding access to the scheme.
Further, I note that Dr Abdolmanafi’s undated typed consultation notes indicate that the sessions were undertaken in late 2023 and early 2024. These suggest that there was an exacerbation of the Applicant’s psychological symptoms due to his marriage breakdown and death of his father. These notes suggest that he was having self-loathing intrusive thoughts and marked social isolation. The evidence indicates that during the relevant period the Applicant was under considerable psychosocial stressors resulting from the breakdown of his marriage and the loss of his father. This, together with his decisions to discontinue medications soon after he reports to his treating practitioners improvements to his symptoms, reinforces my view that further treatment and review may significantly remedy the impairments. Certainly, this accords with Dr Aghdaee’s assessment.
In reaching this conclusion I have considered the Applicant’s submissions regarding the weight to be given to the statements made by his long-standing mental health practitioners. I accept that they have insights into his impairments and conditions that Dr Aghdaee would not have. However, it is apparent that Dr Younus and Dr Abdolmanafi were prepared to make statements in support of the Applicant’s access to the scheme that were in direct contradiction to their contemporaneous notes and assessments. Therefore, I prefer Drs Younus and Abdolmanafi’s contemporaneous notes and assessments and Dr Aghdaee’s assessment over the letters provided by Drs Younus and Abdolmanafi that advocate for the Applicant’s access to the scheme and appear to adopt written statements provided to them by the Applicant.
I conclude that the Applicant’s mental health disorders are not permanent for the purposes of paragraph 24(1)(b) of the Act.
Proceeding with an abundance of caution, if my findings in respect of the permanency of the Applicant’s neurological and mental health disorders are incorrect, I will consider the functional impairments arising from these conditions in respect of paragraph 24(1)(c) of the Act below.
Do the Applicant’s impairments result in substantially reduced functional capacity?
The Tribunal must next determine whether the Applicant’s impairments arising from Addison’s disease result in substantially reduced functional capacity in at least one of the six domains of communication, learning, self-care, self-management, social interaction and mobility.
As the Tribunal understands it, the Applicant submits that he has substantially reduced functional capacity in the domains of communication, learning, self-care, self-management, social interaction and mobility in respect to Addison’s disease. He also submits that his neurological and mental health disorders cause substantial impairments in the same domains.
The Respondent accepts that the Applicant has some reduced functional capacities in one or more of the domains listed in subsection 24(1)(c). However, the Respondent contends that the Applicant does not have substantially reduced functional capacity in those domains.
Access Rule 5.8 (already been set down at paragraph 23 above) provides guidance as to when an impairment results in substantially reduced functional capacity. The Operational Guideline in respect to whether an impairment substantially reduces a person’s functional capacity relevantly states:
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.
The test in subsection 24(1)(c) is one of objective functional capacity and requires the Tribunal to consider both what the person can and cannot do.[54] A person will not necessarily be found to have a substantially reduced functional capacity simply because one task cannot be completed without assistive technology. Instead, the degree to which the person can participate in the activity must be assessed.[55] The test is one of objectivity and not a subjective comparison.[56] The Tribunal must also distinguish between what the person does not do, as opposed to what they cannot do.[57]
[54] Mulligan at [55].
[55] Davis, at [88].
[56] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine) at [109].
[57] Timofticiuc and National Disability Insurance Agency [2021] AATA 3015 at [96].
In Mulligan[58] Mortimer J explained that Access Rule 5.8 defines when a person must be found to have a substantially reduced functional capacity and is a ‘deeming provision’[59] of this Rule; that is, that Rule 5.8 operates by reference to each of the activities set down in each of the six subparagraphs 24(1)(c)(i) to (vi). The decision-maker must make a factual assessment of each of the outcomes or effects of the person’s impairments in each of the six activities. However, her Honour made clear that this is the first part of the statutory task required by paragraph 24(1)(c) of the Act. The decision maker must then proceed to consider whether, regardless of Rule 5.8, a person’s functional capacity is substantially reduced in any of the six domains of activity.[60]
[58] Mulligan at [66]-[67].
[59] Mulligan at [77].
[60] Ibid.
Communication
The Respondent contends that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake communication activities.
Dr Ganda has reported that the Applicant finds it difficult to communicate effectively with others as a result of his Addison’s disease.[61] He did not elaborate further. I do not accept this statement from Dr Ganda. This statement was made in the correspondence that the Applicant acknowledges he drafted and was largely adopted by Dr Ganda. The Applicant did not call Dr Ganda as a witness his statement on this point could not be tested. Further, this statement does not correspond with any of the contemporaneous correspondence in evidence sent by Dr Ganda to the Applicant’s general practitioner.
[61] JTB, folio 179.
Similarly, Dr Abdolmanafi reports that the Applicant finds it extremely difficult to communicate effectively and understand social cues. As is the case with Dr Ganda, Dr Abdolmanafi was not called as a witness. Further, the contemporaneous file notes in evidence and reports authored by Dr Abdolmanafi and sent to the Applicant’s general practitioner do not refer to such any communication difficulties. I was left with the distinct impression that these observations were drafted by the Applicant, provided by the Applicant to Dr Abdolmanafi and then simply adopted by Dr Abdolmanafi. Even if I am wrong on this point, the statement of deficits in this domain without more is not simply not persuasive.
In his Statement of Lived Experience the Applicant declared that his ADHD makes it hard for him to engage in prolonged conversations or effectively express himself.[62] He also declared that he has extreme anxiety in social situations making it difficult to maintain conversations, including difficulty in finding words and avoidance.
[62] JTB, A6.
The Tribunal also had the benefit of the Applicant’s oral testimony and his submissions over three days of hearing. There was no occasion during the hearing days whereby it was apparent that the Applicant was not able to independently communicate through speech during the assessment. The Tribunal also had regard to his written communications and reached the same conclusion in respect to his ability to communicate by written word, notwithstanding the fact that I accept his evidence that he used AI to assist him. My findings on this point accord with the assessment of Ms Sale’s assessment that the Applicant is independent in the domain of communication.[63]
[63] JTB, 202.
There is no persuasive evidence before me to indicate that the Applicant’s impairments result in a substantially reduced functional capacity to communicate. The Applicant had no apparent difficulties in communicating at hearing. He reports that he has held down his current employment for some years and has received an award based on his peers feedback of the support he provides during the work day. Even taking into account the documentation regarding the impact that the Applicant’s ADHD and mental health disorders have upon him, there is no evidence to suggest, apart from the Applicant’s self-report and his statements adopted by his treating practitioners, that the Applicant’s capacity to communicate is impacted by the impairments arising from these conditions such that he has a reduced functional capacity to undertake communication activities.
I conclude that the Applicant is able to participate effectively and completely in communication activities without assistance from a person, equipment or home modifications.
The Applicant’s impairments arising from his medical conditions do not result in substantial reduced functional capacity in activities involving communication and so subparagraph 24(1)(c)(i) of the Act is not satisfied.
Social interaction
The Respondent contends that the Applicant impairments do not result in a substantially reduced functional capacity to undertake social interaction activities.
The Applicant advised in his Statement of Lived Experience[64] that his social life is deeply affected. He described feeling extreme anxiety in social situations making it difficult for him to initiate and maintain conversations. He also becomes nervous and can avoid social interactions as a result. The Applicant reported at hearing that his anxiety prevents him from establishing and maintaining relationships, that he has no friends and does not visit others. He has no one that he can call on or rely on.
[64] JTB, A6.
At hearing the Applicant confirmed that he was in Iran from December 2023 to March 2024 and spent time with his long-term friends whilst there. Under cross-examination he clarified his earlier statements that he has no friends in Australia when it was put to him that he had advised Ms Sale that he met with a friend for coffee. He stated that it was a matter of definition; he does not consider this a deep friendship as they simply arrange to see each other occasionally. Sometimes he catches up with a colleague’s sister or the manager from his work. There is another person who he knew in Iran that he sees rarely. When asked what he meant when reported that a friend provides sporadic support he stated that he referring to his former sister-in-law whom he considered a friend. The Applicant also testified that he is able to engage in appropriate and productive work relationships; he received an award after being nominated by his peers because of his “behaviour”.
I accept unequivocally the evidence in Dr Abdolmanafi’s consultation notes that indicate that following social interactions the Applicant is overwhelmed by pervasive thoughts of inadequacy, self-loathing and anxiety.[65] In the reported dated 23 October 2024 Dr Abdolmanafi reported that the Applicant has significant challenges in social interactions and limited personal relationships and finds it extremely difficult to form or maintain personal relationships and so he avoids social settings, therefore exacerbating his mental health difficulties.
[65] RSTB, 25 to 26, 31, 34.
I also accept Ms Sale’s findings and recommendations regarding the Applicant’s functioning in the social domain. Nevertheless, I am not persuaded in light of the Applicant’s own declarations about his interactions with his work colleagues and people in his community that he has a substantially reduced functional capacity in this domain. Certainly, there is no evidence that he requires assistance from others, assistive technology, equipment or assistance to participate in social activities.
I have reached this conclusion taking into account the impact that the Applicant’s neurological and mental health conditions have upon his capacity to engage in social interactions. Nevertheless, I am not persuaded that the impairments as outlined by Dr Abdolmanafi justify a finding that the Applicant has a substantially reduced functional capacity in this domain. The Applicant reports that he has maintained friendships in his country of origin as well as a network of people that he meets occasionally in a social setting, including a current work colleague. There is insufficient evidence before me to be persuaded that the Applicant is unable to participate effectively and completely in social activities without support from others, assistive technology as a result of these activities.
The evidence before me does not support a finding that the Applicant has a substantially reduced functional impairment with respect to social interaction activities. Subparagraph 24(1)(c)(ii) of the Act is not satisfied.
Learning
The Respondent contends that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake learning activities.
Dr Ganda states that the Applicant’s Addison’s disease impacts on his learning abilities and in particular his ability to concentrate on learning new tasks or information.[66] He did not elaborate further. Dr Abdolmanafi reports that the Applicant has advised that he experiences memory issues such that he often forgets important information, including from recent therapy sessions.[67] Dr Younus reported on 11 October 2023 that the Applicant experiences inattentive symptoms that impact on his functioning. It is apparent that the statements made from these treating doctors are based on the Applicant’s self-report.
[66] JTB, 179.
[67] JTB, 182.
The Applicant’s evidence at hearing was that he has been able to hold down a full-time role as a software tester for over two years. He testified that he cares for his infant child each weekday afternoon and each Saturday and attends to the child’s needs by following a care plan authored by the child’s mother. It was also apparent that he was able to engage in the hearing with adequate breaks, including asking for the meaning of certain words and phrases that indicated that he was able to undertake tasks requiring learning.
Even if I were to accept the Applicant’s self-report about his capacity to undertake learning activities I am not persuaded that the declared impairments require the provision of assistance on a daily basis or give rise to a finding that these impairments result in substantial reduced functional capacity in activities involving learning. Ms Sale’s assessment of the Applicant’s capacity in this domain supports such a conclusion.[68]
[68] JTB, folios 191 and 202.
I therefore conclude that the Applicant’s impairments arising from his diagnosis of Addison’s disease in addition to his neurological and mental health disorders do not result in substantial reduced functional capacity in activities involving learning and so subparagraph 24(1)(c)(iii) of the Act is not satisfied.
Mobility
The Respondent contends that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake mobility activities.
In his Statement of Lived Experience[69] the Applicant reports that his mobility is significantly impaired by muscle weakness and fatigue, which is not alleviated by rest.
[69] JTB, A6.
At hearing the Applicant confirmed that he recently purchased a car, cannot walk for long periods and cannot undertake heavy cleaning tasks and cooking. He also confirmed that he collects his child each weekday afternoon from day care and provides care for the child each Saturday without the assistance of another person or mobility aids.
As outlined above, on 12 May 2023 and 31 May 2024 Dr Ganda reported that since the introduction of fludrocortisone the Applicant’s muscle weakness had improved.[70] However, on 25 June 2024 both he[71] and Dr Taheri[72] reported that the Applicant experiences debilitating chronic fatigue and muscle weakness and so cannot stand for long periods. Dr Ganda opined that the Applicant cannot walk for more than 15 minutes at a time.[73]
[70] RTB, 78 to 79.
[71] JTB, A3 (noting that it is incorrectly tabbed as A33).
[72] JTB, A4.
[73] JTB, T1A, T7.
I do accept that the Applicant suffers from muscle weakness and fatigue despite receiving optimal treatment for his Addison’s disease. However, I reject the characterisation by his general practitioner and endocrinologist on 25 June 2024 that the condition causes debilitating fatigue. It is apparent that the Applicant can undertake most daily tasks, including working on a full time basis and caring for his infant child, with adequate breaks and rest periods. I also accept that the nature of the disease means that the Applicant has good days and bad days. However, he can mobilise within and outside his home independently.
My findings accord with the assessment undertaken by Ms Sale. She observed that the Applicant was able to undertake household tasks and mobilise effectively around his home without supervision and prompting. No functional tolerances were noted in any mobility activities, including sitting, standing, walking and transfers.[74] I am not persuaded that the evidence before me gives rise to a finding that the Applicant is unable to perform mobility tasks and actions without assistive technology, equipment or home modifications.
[74] JTB, 204 to 206.
I conclude that the Applicant’s impairments arising from his diagnosis of Addison’s disease in addition to his neurological and mental health disorders do not result in substantial reduced functional capacity in activities involving mobility. Subparagraph 24(1)(c)(iv) of the Act is not established.
Self-care
The Respondent contends that the Applicant does not have a substantially reduced functional capacity to undertake activities of self-care.
In his Statement of Lived Experience the Applicant reports that he can complete all personal care tasks but encounters significant challenges with physically demanding tasks in his home.[75]
[75] JTB, A6.
On 25 June 2024 both Drs Ganda[76] and Taheri[77] reported that the Applicant has difficulties undertaking shopping tasks, cleaning, cooking and ironing. They recommended assistance with personal care and household tasks.
[76] JTB, A3 (noting that it is incorrectly tabbed as A33).
[77] JTB, A4.
Ms Sales reported that the Applicant uses modified techniques to undertake shopping and domestic activities. However, she did observe that completing physically demanding cleaning tasks including vacuuming, mopping and bathroom cleaning cause him some trouble.[78] Ms Sale stated that to maximise the Applicant’s safety and independence in the domain of self-care he should keep a selection of pre-prepared frozen meals for days he cannot manage the demands of preparing a meal, would benefit from commercial assistance for heavy household cleaning, and engagement with an occupational therapist for education in energy conservation as well as provision of aids and equipment to boost his independence.
[78] JTB, R1, folios 207 to 208.
I have already referred to the decision of Foster whereby it was determined that an inability to undertake only one task in a domain is not sufficient to give rise to a finding that an impairment results in substantially reduced functional capacity to undertake the relevant activity. Instead, an assessment must be made about what a person can and cannot do[79] and whether the person is unable to participate effectively or completely in the activity.[80]
[79] Foster at [64].
[80] Foster at [66].
I accept that the Applicant experiences difficulties in undertaking heavy household chores as consequence of Addison’s disease. However, the Applicant is able to undertake most self-care tasks effectively or completely with modified techniques and some assistive technology and equipment. I am not persuaded that this gives rise to a finding that the Applicant has substantial reduced functional capacity in this domain. Such a conclusion is consistent with decisions made by this Tribunal (differently constituted) in the matters of MRLK and National Disability Insurance Agency [2021] AATA 3896 and Grant and National Disability Insurance Agency [2023] AATA 1206.
I conclude that the Applicant’s impairments arising from his diagnosis of Addison’s disease in addition to his neurological and mental health disorders do not result in substantial reduced functional capacity in activities involving self-care as required by subparagraph 24(1)(c)(v) of the Act.
Self-management
The Respondent contends that the Applicant does not have a substantially reduced functional capacity to undertake activities of self-care.
Dr Taheri stated on 25 June 2024 that the Applicant requires medication prompting. On 20 June 2023 Dr Ganda stated that the Applicant required continuous and substantial support to manage his life.
The Applicant advised Ms Sale that he often procrastinates and ruminates over decisions. He has adopted various strategies to manage his finances and appointments including lists and colour coding tasks. Ms Sale determined that the Applicant was independent in this domain, using modified techniques.[81] She recommended planning and communication aids as well as self-management technologies.
[81] JTB, R1, folios 208 to 209
Whilst I accept that the Applicant causes modified techniques the evidence suggests that he is able to participate independently in self-management activities. I conclude that the Applicant is independent in the domain of self-management.
The Applicant’s impairments arising from his diagnosis of Addison’s disease in addition to his neurological and mental health disorders do not result in substantial reduced functional capacity in activities involving self-management as required by subparagraph 24(1)(c)(vi) of the Act.
Conclusion
Having concluded that the Applicant does not satisfy paragraph 24(1)(c) of the Act, I am not required to consider whether the Applicant’s impairments affect his capacity for social or economic participation and whether he is likely to require NDIS supports for his lifetime as set out in paragraphs 24(1)(d) and (e) of the Act.
I conclude that the Applicant does not meet the disability requirements in accordance with section 24 of the Act.
EARLY INTERVENTION REQUIREMENTS
I next considered whether the Applicant satisfies the criteria for early intervention set down in section 25 of the Act.
Are the Applicant’s impairments permanent?
As already set out at paragraph 18 above, a person meets the early intervention requirements if the person has impairments that are, or are likely to be, permanent or the person is a child who has developmental delay. Access Rules 6.4 to 6.7 with respect to section 25 of the Act mirror Rules 5.4 to 5.7 relating to section 24.
Self-evidently, the Applicant is not a child who has developmental delay. Therefore, subparagraph 25(1)(a)(iii) of the Act is not made out.
I have already concluded that the impairments arising from the Applicant’s Addison disease are permanent. Therefore, paragraph 25(1)(a) of the Act is satisfied in respect of this condition. I am not satisfied that the Applicant meets the early intervention requirements in respect of his neurological or mental health disorders as, for the reasons outlined above, I am not satisfied that these conditions are, or likely to be, permanent for the purposes of the Act.
Will the provision of early intervention supports reduce the Applicant’s future needs for support?
The Respondent accepts that the Applicant’s Addison’s disease meets the criteria for subparagraph 25(1)(a)(ii) but contends that early intervention is not appropriate because the provision of supports would not reduce the Applicant’s future needs for supports. The Respondent also contends that this is the case in respect of the Applicant’s neurological and mental health disorders.
I am satisfied that the Applicant’s adrenal disorder has been optimally treated and stabilised. There is no evidence before me to suggest that the provision of early intervention supports would result in a reduction in the Applicant’s future need for support. Certainly, none of his treating practitioners have submitted that there are any interventions that would reduce the Applicant’s future needs.
I conclude that no early intervention supports would achieve the requirements of paragraph 25(1)(b) of the Act.
Having concluded that the Applicant does not meet the requirements of paragraph 25(1)(b) of the Act, I am therefore not required to consider paragraphs 25(1)(c) and (d) of the Act.
As section 25 of the Act is not met, the Applicant does not meet the early intervention requirements that would enable him to become a NDIS participant under this provision.
CONCLUSION
The Applicant does not meet the disability requirements set down in section 24 of the Act, nor does he meet the early intervention requirements in section 25 of the Act. Therefore, the decision under review is correct and so is affirmed.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024.
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