DQKZ and National Disability Insurance Agency - [2024] AATA 2276

DQKZ and National Disability Insurance Agency [2024] AATA 2276 (5 July 2024)
Division:National Disability Insurance Agency Division
File Number(s): 2021/4331
Re: DQKZ
APPLICANT

Chief Executive Officer, National Disability Insurance AgencyAnd
RESPONDENT

DECISION
Tribunal:Member P French
Date:5 July 2024
Place:Sydney

The decision under review that the Applicant does not meet the disability or early intervention requirements for access to the National Disability Insurance Scheme is affirmed pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
..................................[SGD]......................................
Member P French
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Agency – reviewable decision of Chief Executive Officer – becoming a participant – access request – whether applicant meets the access criteria – whether applicant meets the disability requirements – whether applicant has a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or has one or more impairments to which a psychosocial disability is attributable – whether impairments are, or are likely to be, permanent – whether impairment or impairments result in substantially reduced functional capacity – whether applicant meets the early intervention requirements – whether impairments are, or are likely to be, permanent – whether early intervention supports would likely have a significant impact on the course of impairment – whether any beneficial supports are appropriately provided by the NDIS – disability and early intervention requirements not met – reviewable decision affirmed
Legislation
Acts Interpretation Act 1901 (Cth), s 15AB
Administrative Appeals Tribunal Act 1975 (Cth), s 25, 43
National Disability Insurance Scheme Act 2013 (Cth), s 18, 19, 20, 21, 24, 25, 209
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), Parts 2, 5, 6, 7; r 8.4
Cases
Beezley v Repatriation Commission (2015) FCAFC 165; [2015] 150 ALD 11
DQKZ and National Disability Insurance Agency (No.1) [2024] AATA 2271
HPSC and National Disability Insurance Agency [2021] AATA 727
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
Mulligan and National Disability Insurance Agency (2015) AATA 974
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster (2023) FCAFC 11; (2003) FCR 201
Newell and the National Disability Insurance Agency [2023] AATA 4140
Shi v Migration Agents Regulation Authority (2008) 248 ALR 390
Sutherland and National Disability Insurance Agency [2024] AATA 411
Timofticiuc and National Disability Insurance Agency (2021) AATA 3015
Secondary Materials
Australian Institute of Health and Welfare (2003), ICF Australian User Guide, Version 1.0, Disability Series, (AIHW Cat. No DIS33, Canberra.
Constitution of the World Health Organisation [1948] ATS 7.
National Disability Insurance Scheme – Operational Guidelines – Access
World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva.
World Health Organisation, (2013), How to use the ICF: A practical manual for using the International Classification of Functioning, Disability and Health (ICF): Exposure Draft for Comment, Geneva.
World Health Organisation, (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva (WHO/EIP/GPE/CAS/0.1.3).
REASONS FOR DECISION
Member P French
4 July 2024
Introduction

This is an application by DQKZ (the Applicant) under s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act, the Act) for administrative review of an internal review decision made under s 100(6) of that Act by the delegate of the Chief Executive Officer of the National Disability Insurance Agency (the delegate, the CEO, the Agency) on 25 May 2021. By that decision the delegate confirmed the CEO’s original decision under s 20(1)(a) of the Act made on 29 April 2021 which was to the effect that the Applicant did not meet either the disability requirements specified in s 24 or the early intervention requirements specified in s 25, and that, accordingly, he did not meet the criteria for access to the NDIS specified in s 21(1)(c) of the Act. This Tribunal has jurisdiction under s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to review this decision because it is designated a reviewable decision by s 99(1) (Item 1) of the NDIS Act. This application was made to the AAT on 29 June 2021 (the proceeding).
Having considered all the evidence before me up to the date of the hearing, and for the reasons explained in greater detail following, I have decided to affirm the reviewable decision because I am satisfied that it is correct. While the evidence establishes that the Applicant lives with some (although not all) of the impairments he contends for, and that some (although not all) of these impairments are permanent, he has not established, as he must, that these impairments result in substantially reduced functional capacity in one or more of the life activity areas specified by s 24(1)(c) of the Act. Nor has the Applicant established that the provision of early intervention supports is likely to benefit him in the manner contemplated by s 25(1)(b) and (c) of the Act.
Procedural history
Following the filing of the application, the proceeding was referred for alternative dispute resolution in accordance with Division 3 of Part IV of the AAT Act. Alternative Dispute Resolution did not lead to a resolution of the dispute.
Consequently, on 23 February 2024, the Deputy President responsible for the AAT’s NDIS Division constituted the proceeding to me for hearing in accordance with the President’s Directions made under s 19A of the AAT Act.
Prior to the constitution of the proceeding to me, on 1 February 2024, a Conference Registrar made primary directions for the parties to file and exchange the evidence and submissions that they intended to rely on at the final review hearing. Following constitution of the proceeding to me, on 1 March 2024, I made some supplementary directions, including in relation to the filing of a Joint Tender Bundle and witness schedule.
On 26 April 2024 the Applicant made an application for me to recuse myself from this proceeding on the ground of actual bias, or in the alternative, apprehended bias. I heard that application on 8 May 2024 before the substantive review hearing. After hearing the Applicant’s submissions, and deliberating, I refused the application, indicating that I would publish reasons for my decision in due course. Those reasons are published in DQKZ and Chief Executive Officer, National Disability Insurance Scheme (No.1) (DQKZ No.1). [1] I will refer to this as my decision in relation to the recusal application.
[1] DQKZ and National Disability Insurance Agency (No.1) [2024] AATA 2271
There have been delays and controversies associated with the parties’ compliance with the procedural directions for the filing and exchange of their evidence. I have been obliged to set this out in some detail in my decision in relation to the recusal application. I rely on that summary for the purposes of this decision and will not repeat it here.
However, it is necessary to note here that when I announced my decision in relation to the recusal application, the Applicant immediately requested an adjournment of the substantive hearing and the opportunity to provide additional evidence in relation to his substantive application. After hearing from the parties, I refused both applications and gave oral reasons for doing so.[2]
[2] Transcript of Proceedings, Day 1, 8 May 2024 (Transcript, Day 1), page 2, line 36 to page 5, line 28.
I then proceeded to conduct the substantive review.
Evidence and hearing
I have considered the following material in reaching my determination:
Applicant
(i)Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 6 May 2024 (Exhibit 1),
(ii)Applicant’s bundle of evidence (various dates), (Exhibit 3),
Agency
(i)Agency’s Statement of Facts, Issues and Contentions dated 19 April 2024 (Exhibit 2),
(ii)Agency Tender Bundle filed 7 May 2024 (Exhibit 4). This included:
-    at Tab R6, the Applicant’s “Personal and Carer Impact Statement” (PCIS), undated, but submitted with his NDIS Access Request Form in April 2021,
-    at Tab R20, a report prepared at the Applicant’s request by Ms Bulmer, Occupational Therapist, dated 10 February 2021, and submitted with his NDIS Access Request Form in April 2021, and
-    at Tab R27 an Occupational Therapy Functional Capacity Assessment Report prepared by Elliott Mate, Occupational Therapist, Axiom Health Pty Ltd, dated 17 October 2023 (the Agency’s independent expert report),
(iii)“T Documents” required to be filed by the Agency by ss 37 and 38AA of the AAT Act (various dates) (Exhibit 5).
The Agency’s Tender Bundle included several documents generated at various times by the Applicant’s treating professionals which had been obtained under summonses issued on the application of the Agency in June 2022. The issue of those summonses, and the Agency’s access to the documents that were produced in response to them, became the subject of belated controversy between the parties from February 2024 up to the date of the hearing. The details of this controversy are set out in my decision in relation to the Applicant’s recusal application and need not be repeated here.
However, it is appropriate to record here that in pre-hearing communications with the Tribunal and the Agency, the Applicant indicated an intention of object to the admission into evidence of the material obtained by the Agency under summons and to the Agency’s independent expert report.[3] That intention is also recorded in the Applicant’s Statement of Facts, Issues and Contentions filed on 6 May 2024.[4]
[3] This correspondence is set out in my reasons in the recusal application (DQKZ No.1) at paragraphs 29 - 45.
[4] Applicant’s Statement of Facts, Issues and Contentions (Exhibit 1) (Applicant’s SFIC) at [50] – [52].
Notwithstanding that, as things stood at the end of the hearing, the Applicant did not press any objection to the admission into evidence of any document contained in the Agency Bundle or the T Documents.[5] He specifically withdrew any objection to the Agency’s tender of Mr Mate’s expert report, and further, submitted it ought to be before the Tribunal in unredacted form.[6] He also contended that all of the material that had been produced to the Tribunal in response to the summonses that had been issued to his treating professionals in June 2022 at the request of the Agency should be in evidence.[7] I indicated that this material would be considered to the extent that it was included in the T Documents, the Agency Bundle, or was otherwise specifically identified by the parties in submissions as being relevant to an issue to be determined.[8]
[5] Transcript of Proceedings, Day 2, 9 May 2024 (Transcript, Day 2), page 28, line 9 -14.
[6] Transcript, Day 2, page 17, lines 47 – 38; page 28, line 15.
[7] Transcript, Day 2, page 28, lines 9 – 33.
[8] Transcript, Day 2, page 28, line 40; page 29, lines 4 - 7.
However, the Applicant did press an objection to the evidence of Dr Ryan, Psychiatrist, on the ground, it was said, that Dr Ryan had misdiagnosed him with a particular psychiatric condition in or about December 2011.[9] No issue in relation to that (mis) diagnosis is before me in this review; that is, the Applicant did not seek access to the NDIS based on any impairment related to that (mis) diagnosis, and the Agency made no contention in relation to such a diagnosis.
[9] Applicant’s SFIC at [26], [89] and [103].
However, the Applicant contended that the Agency did rely on medical evidence sourced from Dr Ryan to contend that one of the impairments he claimed in his access request was not permanent because it was responsive to a particular form of treatment. The Applicant submitted that this evidence ought not to be admitted, or, in the alternative, that it ought to be given little weight, as Dr Ryan’s misdiagnosis of a psychiatric condition rendered the whole of her medical opinion about him unreliable. I indicated that if the issue arose, I would treat the Applicant’s objection to Dr Ryan’s evidence as going to the weight that ought to be given to it.[10] As will be seen following, no issue arose in relation to evidence sourced from Dr Ryan.
[10] Transcript, Day 2, page 29, line 34 to page 31, line 12.
The Applicant attended the hearing self-represented. He gave evidence in his own cause under affirmation on the afternoon of 8 May 2024 and during the morning of 9 May 2024. He did not call or offer any witness to give evidence.
The Agency was represented at the hearing by Ms H Hoffman of counsel, instructed by Sparke Helmore Lawyers. The Agency called as an independent expert witness Mr Elliott Mate, Occupational Therapist, who gave evidence under affirmation during the morning of 9 May 2024.
The parties had the opportunity to make opening statements, present their evidence, ask the witnesses questions, and make final submissions to the Tribunal.
The Access Request
The Applicant made the NDIS Access Request to the Agency that ultimately gives rise to this proceeding on 9 April 2021. In Section 1, Part E, of the NDIS Access Request Form “Overview of Disability” the Applicant reported against question 1 “what is your main disability”: “undiagnosed neurological disorder and spine”. In response to the question 2 “do you have any other disabilities that substantially affect your everyday life” the Applicant reported “sleep disorder”, “psychosocial problems”, “dyslexia”, “ADHD” and “C-PTSD”.
In section 2, Part A, “Treating Professional’s Information” Dr Wickramasinghe, General Practitioner, states in response to the question “what is the applicant’s main disability”: “unexplained neurological deficit (motor and sensory) in upper and lower limbs”. In response to question 2, “does the applicant have any other disabilities?”, Dr Wickramasinghe states: “sleep disorder”, and “generalised anxiety, depression with ADHD”. In response to question 3, Dr Wickramasinghe states that the Applicant has had these conditions for greater than 10 years. In response to question 4, he answered “no” to the question “is the impairment time limited and/or degenerative in nature”. In response to the question “is the impairment currently being treated” he answered “yes”. He described those treatments as: “(1) review with neurologist”, “(2) sleep disorder none”, and “(3) psychiatric conditions – medications, psychotherapy.” He reports the “duration/frequency of current treatments” as “psychotherapy – 8 weekly”, and the “expected results of current treatment” as “improve mood and anxiety”.
In response to the prompt to provide details about previous treatments/interventions, Dr Wickramasinghe states: “investigations (imaging, nerve conduction, blood tests), multiple specialists, CPAP”. He reports the results of those treatments as “no definitive diagnosis reached, not responded to CPAP”. In relation to the question “are there any available, evidence-based treatments/interventions that are likely to substantially relieve the Applicant’s impairment”, Dr Wickramasinghe states: “yes” and “physiotherapy, psychotherapy”. He states that those treatments will be “lifelong” and the expected results of those treatments as “prevent deterioration of function of limbs, improve sleep, mood”.[11]
[11] Agency Bundle, Tab R1, pages 14 – 16.
In Section 2, Part C of the Access Request Form “Early Intervention’, Dr Wickramasinghe opines that early intervention supports are likely to reduce the Applicant’s future support needs, opining further that they would “alleviate the impact on functional capacity”, “prevent deterioration in functional capacity”, “improve functional capacity”, and “strengthen existing supports”. In response to the prompt “provide details of your recommendations for early intervention support”, Dr Wickramasinghe states against prompt “a) Description of recommended interventions”: “find housing in Melbourne”. He makes no comment against prompt “b) Duration/frequency of recommended interventions”, and he states against prompt “c) Expected results of recommended intervention”: “to engage with specialists and other health professionals more easily”.[12]
[12] Agency Bundle, Tab R1, page 17.
In Section 2, Part E, of the Access Request Form ‘Evidence of functional capacity’ Dr Wickramasinghe gives the following responses:
MobilityThe neurological symptoms affect his balance sometimes leading to falls. Also reduced power/function of hands
Communication [No response]
SocialisingMental ill health affects social interactions
LearningDyslexia ADHD affect new learning
SelfcareCan affect [indecipherable] during depressive episodes
Self-Management Poor focus, concentration affect organise life.[13]
[13] Agency Bundle, Tab R1, pages 19 – 20.
In response to the question “what type and frequency of assistance does the applicant need to participate in …” these life activity areas, Dr Wickramasinghe provides the following responses:
Mobility
Home and/or environmental modifications                [no response]
Assistive equipment and technology  [no response]
Assistance from other persons  Physiotherapy
Communication
Home and/or environmental modifications                [no response]
Assistive equipment and technology  [no response]
Assistance from other persons  Psychotherapy
Social interaction
Home and/or environmental modifications                [no response]
Assistive equipment and technology  [no response]
Assistance from other persons  Psychotherapy
Learning
Home and/or environmental modifications                [no response]
Assistive equipment and technology  [no response]
Assistance from other persons  Social work
Self-care
Home and/or environmental modifications                [no response]
Assistive equipment and technology  [no response]
Assistance from other persons  [no response]
Self-management
Home and/or environmental modifications                [no response]
Assistive equipment and technology  [no response]
Assistance from other persons  Social worker[14]
[14] Agency Bundle, Tab R1, pages 21 – 24.
The Applicant also submitted an “Evidence of psychosocial disability form” completed by Dr S Eaton, Consultant Psychiatrist, dated 28 January 2021 as part of his Access Request. In that form, Dr Eaton records that he has been treating the Applicant since 8 November 2012. He confirms that the Applicant has a mental health condition and records his diagnosis and year of diagnosis as follows: “recurrent depression pre-2012, ADHD 1995 + 2017, CPTSD pre 2012, Dyslexia 2012 and Hypersomnia”. He reports that the Applicant has never been hospitalised in relation to any of these conditions.[15] In the Table at question 2 of the Form Dr Eaton describes the Applicant’s impairment in each domain as follows:
Social Interaction                   Minimal social interaction. Actively avoids contact with others, isolated.
Self-management                   Procrastination, delay ability to complete tasks
Self-careNo
Communication  Yes, subtle – feels misunderstood, Dyslexia impedes
LearningCan vary. Ability to concentrate and attend varies
MobilityNo.[16]
[15] Agency Bundle, Tab R18, page 155.
[16] Agency Bundle, Tab R18, page 157.
In the Table at question 3 of the Form, Dr Eaton provides the following treatment summary[17]:
[17] Agency Bundle, Tab R18, page 158.

Medication/treatment/ intervention

Date Started

Date ceased

Effect on impairments

Multiple psychological

unsure

Duloxetine

2019

2020

unsure

Sertraline

not tolerated

Dexamphetamine

2018

2019

unsure

Lis dexamphetamine

2019

2021

Effective

Alprazolam

2018

2021

Partially effective

Desvenlafaxine

Not effective

Valproate

Not tolerated.

In response to the question “are there any known, available and appropriate evidence-based clinical, medical or other treatments likely to remedy the impairments”, Dr Eaton opines that there are none, explaining as follows: “patient has tried multiple treatments and psychological therapies”. He also expresses the opinion that the Applicant’s impairments, caused by his mental health conditions, are likely to be permanent.[18]
[18] Agency Bundle, Tab R18, page 159.
On 14 April 2021 the Agency sent the Applicant a letter in response to his Access Request advising that further information was required and allowing 28 days for this to be furnished.[19] The Applicant contends that he was advised orally by a NDIS officer that he would have 90 days to do so.[20]
[19] s 26 of the NDIS Act; T Documents, Tab T1A, page 7.
[20] Applicant’s SFIC at [9].
By letter dated 29 April 2021 a delegate of the CEO notified the Applicant of her NDIS Access Decision.[21] Due to an administrative error that decision was made before the elapse of the period the Applicant was permitted to supply further information requested by the Agency in support of his Access Request. That error was the subject of a complaint to the Minister by the Applicant and an apology to the Applicant by the Agency.[22] The Applicant continues to be aggrieved by that error because, as he apprehends it, it deprived him of a “fair review” the effect of which continues up to the present.[23]
[21] Agency Bundle, Tab R2, pages 30 – 33.
[22] T Documents, Tab T1A, pages 7 – 8.
[23] AAT Application for Review of Decision, Agency Bundle, Tab R4, pages 50 – 51; Applicant’s SFIC at [9] – [21]; Transcript, Day 1, page 9, lines 8 – 30; Transcript, Day 2, page 37, lines 27 – 44.
The Applicant contends that he provided further information in response to the Agency’s request on 19, 20 and 22 April 2021 and 4 May 2021, but this was not considered by the delegate. The further information the Applicant supplied in April 2021 is set out in email exchanges between the Applicant and an agency representative which are at Tab R7 of the Agency Bundle.[24] This information is not referred to in the NDIS Access Decision as “information considered”.[25] I cannot find, and was not taken to, any further information provided by the Applicant to the Agency in May 2021.
[24] Pages 114 -123.
[25] Agency Bundle, Tab R2, pages 30 – 31.
In her NDIS Access Decision, the delegate determined that she was satisfied that the Applicant met the age and residence requirements for the NDIS. However, she determined she could not be satisfied that the Applicant met the disability requirements or early intervention requirements for access to the NDIS. Specifically, that was because she was not satisfied that the ‘permanency’ criterion had been met:
Disability Requirements
Based on the information provided, you do not meet the disability requirements as set out in section 24 of the NDIS Act, specifically:
Permanency, Section 24(1)(b)
The NDIS Act considers whether a disability is permanent, or likely to be permanent.
The information provided confirms you have undiagnosed neurological disorder and depression.
However, this information does not indicate that all available and appropriate treatment options that are likely to improve the impacts of your disabilities have been explored. These treatment options must be explored before this requirement can be met.
…
Early intervention Requirements
Based on the information provided, you do not meet the early intervention requirements as set out in section 25 of the NDIS Act, specifically:
Permanency or Developmental Delay, section 25(1)(a)
The NDIS Act considers whether a person has a permanent disability or is a child under 6 years of age with developmental delay.
As previously explained, this information does not indicate that all available and appropriate treatment options that are likely to improve the impacts of your disability have been explored. These treatment options must be explored before this requirement is met.[26]
[26] Ibid.
The delegate also considered the “other reported disabilities” referred to in the Applicant’s Access Request Form and determined that “the information does not indicate that these meet the disability or early intervention requirements”.[27]
[27] Agency Bundle, Tab R2, page 32.
On 5 May 2021 the Applicant requested an internal review of the NDIS Access Decision under s 100 of the NDIS Act. This internal review was completed, and the Applicant notified of the outcome, by letter dated 25 June 2021. The delegate determined to confirm the decision, but with respect to the disability and early intervention requirements, cited additional grounds for doing so. The delegate sets out the materials she considered in the internal review in her internal review report. It appears from this list of materials that she considered all the information the Applicant had provided to the Agency up to that point.[28]
[28] Agency Bundle, Tab R3, pages 38 – 39.
The relevant contents of the internal review decision are extracted following:
Access criteria: section 24 Disability
To meet the disability requirements the NDIA must be satisfied that all of the five criteria in paragraph 24(1) have been met.
Criteria (a) on impairments - ….
I am satisfied that this criteria has been met regarding the undiagnosed neurological condition, Attention Deficit Hyperactivity Disorder (ADHD), Complex Post-Traumatic Stress Disorder (CPTSD), depression, cervical radiculopathy, bilateral carpel tunnel and dyslexia.
I am not satisfied that this criteria has been met regarding the obstructive sleep apnoea, sleep disorder and circadian rhythm disorder based on the evidence provided.
In making this decision I have considered Section 8.1 of the National Disability Insurance Scheme Operating Guidelines – Access, the term ‘disability’ refers to “the reduction or loss of an ability to perform an activity”.
The information tendered does not demonstrate that these impairments result in a disability in accordance with NDIS Guidelines as outlined above. As such, dyslexia, obstructive sleep apnoea, sleep disorder and circadian rhythm disorder will not be considered further in this report.
Criteria (b) on permanence …
The NDIA does not assess the permanency of a diagnosis, but rather the associated and resulting impairments (for example, impaired mobility, impaired capacity for social interaction and so on). A person may have a lifelong diagnosis or condition which may require ongoing medical review. However, the impairment resulting from a diagnosed condition cannot be considered permanent until all treatment options have been explored.
In making this decision, I have had consideration towards the following rules and Operational Guidelines.
§Section 5.4 of the [NDIS] (Becoming a Participant) Rules 2016 …
§Section 5.6 of the [NDIS] (Becoming a Participant) Rules 2016 …
§Access to the NDIS Operational Guidelines – 8.2 …
I am satisfied this criteria has been met regarding ADHD, CPTSD, depression and dyslexia.
I am not satisfied that this criteria has been met regarding undiagnosed neurological condition, cervical radiculopathy and bilateral carpel tunnel based on the evidence provided.
Justifications regarding the assessment of your impairments have been broken down below to ensure clarity in how this decision has been made.
Undiagnosed neurological condition
Evidence provided by Dr Scott (item 18) reports, “Given the ongoing uncertainty, I’ve requested a second opinion from Professor Archer …”
As a further review is pending I cannot determine the permanency of your impairment. As outlined in Section 5.6 of the [NDIS] (Becoming a Participant) Rules 2016 “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”. As such, this criteria has not been met. The undiagnosed neurological condition will not be further assessed in this report.
Cervical radiculopathy
Evidence provided by Quan (Item 10) reports, “His symptoms have been so debilitating that he is considering major spinal depression and fusion surgery to try to remedy this”.
As the evidence indicates the possibility of surgical intervention I cannot conclude that the impairment is likely to be permanent. As outlined in s 5.4 of the [NDIS] (Becoming a Participant) Rules 2016 “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 would (sic) be likely to remedy or substantially relieve the impairment”. As such, this criteria has not been met. The cervical radiculopathy will not be assessed further in this report.
Bilateral carpel tunnel
Evidence provided by Dr Scott (Item 18) reports, “On the positive side, he isn’t experiencing major problems with his carpel tunnel condition despite not wearing splints or receiving hand therapy”.
Based on the evidence it cannot be concluded that you have accessed all available and appropriate treatments which may be likely to remedy or substantially relieve your impairment. As outlined above, 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 or substantially relieve the impairment. As such, it cannot be concluded that your impairment is permanent at this time. The bilateral carpel tunnel will not be considered further in this report.
Future applications would benefit from a thorough treatment history for your impairments indicating the outcomes of all medical treatment, surgical intervention (if applicable), and specialist reviews/prognosis. The evidence would need to demonstrate that all readily available and evidence based treatments that would be likely to remedy or substantially relieve your impairments has been completed, become unavailable, or no longer deemed medically viable by the relevant treating professionals/specialists.
Criteria (c) on functional impact …
To meet this criterion, evidence must demonstrate, as a result of your disability, that you require the support and intervention of another person, assistive technology, equipment or home modifications to successfully complete daily activities.
In addition, completing tasks in a modified or different manner, more slowly or with the aid of ‘commonly used items’ such as a walking stick, is not considered to reflect a substantial reduction. Assessment must also conclude, between acute episodes, an individual has reduced functioning for most or all of the tasks within a major life activity.
In making this determination I have referred to the following:
Access to the NDIS Operation Guidelines – 8.3 …
Section 5.8 of the [NDIS] (Becoming a Participant) Rules 2016 …
Based on the evidence provided, I am not satisfied that this criteria has been met in regards ADHD, CPTSD, depression and dyslexia.
Whilst the functional impact of the neurological condition, cervical radiculopathy and bilateral carpel tunnel is acknowledged, the only functional impact that can be considered to meet this criterion is that due to a permanent impairment. As you have not met the requirements in Section 24(1)(b) the impacts it results in cannot be used as part of the determination for Section 24(1)(c).
In reference to ADHD, CPTSD, depression and dyslexia: The evidence provided indicates that you do not usually require the assistance of another person, specialist disability aids or equipment that is formally prescribed or specifically designed for a person with disability. As such, I am not satisfied that a substantial reduction in functional capacity has been demonstrated as er the Rules outlined above.
Future applications would benefit from detailed information about the impacts of your disability from your treating health professional. The type of information required to assess functional capacity is outlined below:
·Descriptive information on what activity you are unable to independently participate effectively or completely in.
·Descriptive information of the activities/tasks you require the support of another person, equipment or assistive technology.
·Descriptive information of the type of support required (e.g. one-one-support, specifically prescribed equipment) as well as the frequency of this support (e.g. daily, weekly etc)
Criteria (d) on participation …
I am satisfied that this criteria has been met.
Criteria (e) on lifetime NDIS support …
I am not satisfied that this criteria has been met in regards to ADHD, CPTSD, depression and dyslexia based on the evidence provided.
Without meeting all of the preceding criteria, I have been unable to conclude that you will require the support of the NDIS for your lifetime. Accordingly, I find that you do not fulfil the disability requirements to enable you to become a participant in the NDIS.
…
Access criteria: Section 25 Early Intervention
Decision: Not satisfied
To meet the early intervention requirements, the NDIA must be satisfied that all of the three criteria in paragraph 25(1) have been met, and that the support is not more appropriately provided through other schemes or services.
Criteria (a) on impairments …
I am satisfied that this criteria has been met in regards to ADHD, CPTSD, depression and dyslexia,
Criteria (b) on reducing future need for support …
Due to the longstanding nature of your impairments, providing support now would not be considered early intervention. As outlined in Section 9.3 of the [NDIS] Operational Guidelines – Access, “when considering if a person is likely to benefit from early intervention supports, the NDIA may consider factors such as the time elapsed since the onset of the diagnosis”. As such, this criterion has not been satisfied.
Criteria (c) on improving capacity …
I am satisfied that this criteria has been met in regards to ADHD, CPTSD, depression and dyslexia based on the evidence provided.
Criteria 23(3) that the NDIS is the most appropriate support system …
I am not satisfied that this criteria has been met in regards to ADHD, CPTSD, depression and dyslexia based on the evidence provided.
The evidence submitted does not demonstrate that NDIS is the most appropriate support system. Accordingly, I find that you do not fulfill the early intervention requirements to enable you to become a participant in the NDIS.
…
The Tribunal’s role
The Tribunal’s role in undertaking this administrative review is to reach its own conclusion as to what is the correct decision by conducting its own independent assessment of the factual matters necessary to be addressed in determining if the Applicant meets the criteria for access to the NDIS. This is, in essence, to do again what the original decision-maker did. In this respect, the Tribunal stands in the shoes of the original decision-maker for the review process.[29] The Tribunal’s role is to make the correct decision on the material before it as it stands on the date of the hearing. This may include consideration of material not considered by the delegate who made the decision subject to administrative review.[30]
[29] Shi v Migration Agents Regulation Authority (2008) 248 ALR 390 at 422 - 423 [141]; 420 - 421 [134] per Keifel J; 423 [142]; 412 - 413 [100] per Hayne and Heydon JJ
[30] Ibid, 423 - 424 [142] - [147] per Keifel; 413 [101] per Hayne and Haydon JJ.
In reviewing the delegate’s decision, the Tribunal may exercise all the powers and discretions that are conferred on the CEO by the NDIS Act. It may affirm, vary, or set aside the decision under review. If it sets aside the decision, it may substitute a different decision for the internal review decision or remit the access request to the CEO for reconsideration with any directions or recommendations the Tribunal considers appropriate.[31]
[31] s 43(1) of the AAT Act.
The Applicant’s evidentiary onus of proof
In administrative review proceedings neither party bears a formal onus of proof. However, this is a case in which the Applicant seeks access to a public benefit which is only available if specified statutory criteria are met. He therefore bears a practical onus of placing before the Tribunal, or otherwise drawing attention to, relevant and probative evidence that can establish that he meets these access criteria.[32]
[32] Beezely v Repatriation Commission [2015] FCAFC 165 at [68]; applied in HPSC v National Disability Insurance Agency [2021] AATA 727 at [85] and Sutherland v National Disability Insurance Agency [2024] AATA 411 at [53].
I note that the Applicant made repeated statements in pre-hearing communications with the Agency and the Tribunal and in his SFIC to the effect that the Agency bore an onus of “requesting” additional information from him that would enable him to meet the access criteria, that he stood ready to provide this information on request, and that the Agency’s failure to do so somehow “denied” him “the ability to provide the evidence [he] needed”.[33]
[33] Applicant’s SFIC at [17], [21] - [23], [31] - [33], [76], [83], [167], [183], and [186].
The Applicant also made repeated statements to the effect that it is unreasonable to expect him to provide information in support of his Access Request beyond what he provided at the time of his Access Request, particularly because of the extent of his medical information the Agency obtained in response to various summonses it issued to his treating professionals.[34] Submissions to this effect were also made at the hearing.[35]
[34] Applicant’s SFIC at [34] and [187].
[35] Transcript Day 1, page 9, lines 14 – 26 and 39 – 41; page 10, lines 7 – 11; Transcript Day 2, page 37, lines 34 - 45.
These beliefs are misconceived. It is the Applicant who bears the practical onus of putting before the Agency (and now Tribunal) the evidence that will establish his eligibility for the NDIS. The Agency has an obligation to ensure that the access criteria are clear to an Applicant, but it does not have any positive obligation beyond that to assist the Applicant to meet the access criteria.
The Agency may, in the proper exercise of its statutory functions, seek to interrogate the Applicant’s claims for eligibility and in doing so may, among other things, issue summonses to treating professionals and engage an independent expert to assess an Applicant (both of which have occurred in this case). Indirectly, that may assist an Applicant to establish that they meet the access criteria, or it may not. But the purpose of such efforts is neither to assist or impede the Applicant. Such efforts involve the essentially neutral exercise of evaluating the Applicant’s claims against the statutory access criteria to ensure the proper administration of the NDIS.[36]
[36] National Disability Insurance Agency v Davis [2022] FCA 1002 at [44].
The Applicant also made various statements to the effect that the Tribunal’s procedural directions deprived him of a procedurally fair opportunity to present additional evidence in support of his access request. I have dealt with that complaint at some length in my reasons in relation to the recusal application, and rely on what I said there, without repeating it here.[37]
[37] DQKZ (No.1) at [73] – [82], [89] – [90] and [109] – [110].
Background facts
The Applicant is a man, now 35 years of age. On the date his NDIS Access Request was made he was 32 years and 3 months old.[38] He is an Australian Citizen and was so on the date his NDIS Access Request was made.[39]
[38] T Documents, Tab T18, page 80. In his Access Request, the Applicant provided consent to the Agency to verify his birthdate with Centrelink (T Documents, T18, page 83) which it did (T Documents, T20, page 108).
[39] T Documents, T18, page 80. In his Access Request, the Applicant provided consent to the Agency to verify his residency status with Centrelink (T Documents, T18, page 83), which it did (T Documents, T20, page 108).
Since April 2022, the Applicant has lived alone in a two-bedroom, two-level, townhouse that he rents on a subsidised basis from a social housing provider (the Applicant’s home).[40] The Applicant’s home is in a rural town in Victoria that is approximately 90kms from Melbourne.[41] He has a driver’s license[42] and owns a motor vehicle.[43] He maintains regular contact with his mother.[44] He is estranged from his father from whom he suffered abuse as a child.[45] He has an adult brother and sister from whom he is also estranged.[46]
[40] Elliott Mate, Occupational Therapy Functional Capacity Assessment report, 17 October 2013, Tab R27 of Agency Bundle (the Mate report) at pages 197 and 199.
[41] Transcript, Day 2, page 13, line 3.
[42] Transcript, Day 2, page 11, line 31.
[43] Agency Bundle, Tab R6, page 109.
[44] Transcript, Day 1, page 22 and lines 24 – 38.
[45] Agency Bundle, Tab R31, page 255.
[46] Agency Bundle, Tab R6.

This proceeding arises from the Applicant’s second Access Request to the NDIS.[47] His first application appears to have been made on 3 July 2018.[48]
[47] This appears from the Applicant’s Personal and Carer Impact Statement (Applicant’s PCIS) at page 69, and from communications with the Agency in relation to his present application, which are in the Agency Bundle at Tab 7, p 117.
[48] That is the date stated by the Applicant in his Application for Review: Agency Bundle, Tab R4, page 51; although a Supporting Evidence Form completed by Dr Waheed Ahmed which is in the T Documents, T5, at pages 43 – 49 is dated 21 July 2018.
When he made this Access Request for the NDIS, the Applicant lived with his mother, brother, and sister in another Victorian rural town (residence at the time of application).[49] His sister moved out shortly after his application was made. His mother and brother still live at that location, which is approximately 70km by car from the Applicant’s current home.
[49] T Documents, Tab T18, page 80; Agency Bundle, Applicant’s PCIS, pages 67 – 113.
It would appear from the material the Applicant submitted to the Agency in support of his Access Request that a significant driver of that request were domestic stressors he was experiencing in relation to what I will refer to obliquely as his brother’s and sister’s antisocial and risk-making behaviour.[50] Those specific stressors no longer pertain in the Applicant’s current living environment, although he does complain that his current home is configured over two levels, which negatively impacts on his mobility.[51]
[50] Agency Bundle, Tab R6, Applicant’s PCIS pages 68 – 69, 75, and 77 – 113.
[51] Agency Bundle, Recusal Application, Tab R9, page 15.
The Applicant completed Year 12, apparently over 3 years.[52] He then enrolled in a university degree program in graphic design which he did not complete, he reports, because of declining health and hand function.[53] In 2017, he enrolled in a Master of Laws at another university which he has not yet completed, he reports, because of difficulty tolerating travel. He hopes to complete this degree in the future once NDIS supports are in place.[54]
[52] Agency Bundle, Tab R31, page 257; Transcript, Day 1, page 16, line 23.
[53] Applicant’s PCIS, page 72.
[54] Applicant’s PCIS, page 72; Applicant’s SFIC at [151].
After leaving school, the Applicant worked as a driller’s off-sider (full-time),[55] as a groundman on a golf course,[56] and as a security guard (1 day per week).[57] However, he has been in receipt of a Disability Support Pension since 2016.[58] In or about December 2019 AusSuper paid out the Applicant’s claim for his superannuation accumulation on the basis was unable to work due to disability as it presented at that time.[59]
[55] Agency Bundle, Tab R31, page 257.
[56] Agency Bundle, Tab R31, page 257.
[57] T Documents, Tab T11, page 57.
[58] Agency Bundle, Tab 29, at page 239; Agency Bundle, Tab R20, G Bulmer Occupational Therapist, NDIS Access Report, (Bulmer Report) at page162.
[59] T Documents, Tab T11, pages 56 – 64.
With NDIS supports in place, the Applicant would now like to work towards employment as a disability advocate.[60]
[60] Applicant’s PCIS, page 72.
Apart from helping him complete his law degree studies and obtaining work as a disability advocate, at the time his NDIS Access Request was made, the Applicant stated as his objectives for obtaining access to the NDIS as being able to “live independently”, in a “clean and safe environment”, “closer to where I receive medical treatment”, to avoid the physical and mental demands of long-distance travel which are incapacitating for him.[61] He also stated that he sought “assistance with dietary and cooking needs”, with “cleaning”,[62] and help to obtain equipment that will “enable [him] to sit and sleep comfortably”.[63] Additionally, the Applicant stated that he wanted to obtain support to achieve “increased physical mobility” which would enable him to have “more of a social life, and over time, ‘help [him] to a point where [he] can have a somewhat normal life”.[64] Specifically, the Applicant stated a goal of finding an outdoor hobby that he enjoys and which will not make his symptoms worse.[65] The Applicant expressed the fear that without NDIS intervention “overtime [his] life will get worse along with [his] disability”.[66]
[61] Applicant’s PCIS, page 71; see also Bulmer Report, page 165.
[62] Applicant’s PCIS, page 71.
[63] Bulmer Report, page 165.
[64] Applicant’s PCIS, page 71.
[65] Bulmer Report, page 166.
[66] Applicants PCIS, page 71.
I note that all the above statements of objectives were made on or about the time the Applicant made his NDIS Access Request in April 2021 while he still lived with his mother, brother, and sister.
At the hearing, the Applicant had some difficulty in identifying what his objectives were in obtaining access to the NDIS. He told me that “it is difficult to say”, but added, “from [his] understanding, being approved for the NDIA, [he is] not using the resources, it’s not costing them anything, right?” [67]
[67] Transcript, Day 1, page 18, lines 32 – 34.
Counsel for the Agency returned to this issue in her questions of the Applicant which led to the following exchange:
Am I understanding correctly that, if you were to be granted access right now, you wouldn’t use any supports? --- I don’t know. But – because I still – I still don’t know what can and cannot be – like, claimed under the NDIS – it’s never been made clear to me. And I know that this is a universal problem for a lot of people. So I can’t answer that question, honestly. Because I don’t know.
… It’s in the same way that I don’t know when my next cycle’s going to occur. But it’s coming. It’s getting worse. I can already feel it. So.[68]
[68] Transcript, Day 1, page 31, line 39 to page 32, line 3.
In relation to that last quoted statement, and with respect to his undiagnosed neurological condition, the Applicant informed me that his “health [had] improved a little bit”, but this was “part of a cycle” that would likely lead to relapse in the future. He stated that he wanted to obtain access to the NDIS in advance of any future relapse so that support will be available to him at that time.[69]
[69] Transcript, Day 1, page 18, lines 16 – 24.
Otherwise, the Applicant identified transport assistance to attend medical appointments in Melbourne as a support he would likely seek to obtain from the NDIS because he is sometimes too tired from lack of sleep to drive to these appointments.[70]
[70] Transcript, Day 1, page 18, lines 26 – 20.
When questioned by Counsel for the Agency what supports he would seek to obtain from the NDIS in relation to Dyslexia if access was given, the Applicant replied:
‘I am not sure. Because once again. Going to yesterday, it’s still not been made clear to me what the NDIA cover and what they do not and how they help. All I know is that several years ago, whenever I needed help from a service because of how sick I was at the time, I would reach out to services and every single one of them would say ‘you should be on the NDIS.’[71]
[71] Transcript, Day 1, page 4, lines 1 - 7.
The Applicant refers to his mother as his informal (unpaid) “carer”.[72]
[72] Applicant’s PCIS, page 71; Transcript, Day 1, page 22, line 30.
In an ‘Access Request, Supporting Evidence Form’ which was completed on 21 July 2018, apparently in relation to the Applicant’s first NDIS Access Request, Dr Ahmed, General Practitioner, states in relation to mobility that “mum helps him to take him shopping and to the doctors”[73] and in relation to self-management “mum helps to drive him to shopping [and] she also helps him to handle day to day problems due to anxiety and depression”.[74]
[73] Agency Bundle, Tab R11, page 141.
[74] Agency Bundle, Tab R11, page 143.
In his Personal and Carer Impact Statement the Applicant states that his mother “has to do all my shopping, cooking, laundry etc”.[75] He describes his mother as an older woman with physical disability who struggles to look after herself, let alone provide him with the care he needs.[76] He states with respect to the care his mother provides that “she can’t do it anymore”. He states that if he were to obtain access to the NDIS it would improve the quality of his life, and his mother’s.[77]
[75] Applicant’s PCIS, page 68.
[76] Applicant’s PCIS, page 71.
[77] Ibid.
The Applicant was interviewed by Agency engaged independent expert, Mr Mate, Occupational Therapist, for the purpose of preparing his report. Mr Mate records in his report that the Applicant told him that his mother “provides informal support” and would “occasionally visit him approximately once a month, and he will visit her approximately twice a week”. Mr Mate also reports being informed by the Applicant that he and his mother “speak on the phone each day” and that his mother provides the Applicant with “emotional support’, and ‘occasionally assist[s] him with grocery shopping or cooking”.[78]
[78] Mate Report, page 197.
In his oral evidence, during questioning by the Agency’s representative, the Applicant stated that he continued to receive support from his mother, and that he would typically see her twice a week, either based on him visiting her, or her visiting him.[79] He stated that she continues to assist him with shopping, laundry, and various other tasks that he finds it difficult to deal with because of social anxiety.[80] In response to specific questions, the Applicant accepted that his mother provided him with “occasional’ support”, which is “getting harder” for her to provide because of her own age and health issues.[81] He also accepted that he no longer relies on his mother’s support for cooking and cleaning.[82]
[79] Transcript Day 1, page 22, line 27 – 38.
[80] Transcript, Day 1, page 22, line 42 – 45.
[81] Transcript, Day 1, page 23, lines 16 - 17.
[82] Transcript, Day 1, page 23, lines 23 - 28.
The Applicant reported to Mr Mate during his Occupational Therapy Assessment that he consults a neurologist for review approximately every 6 months, a Psychiatrist, Dr Eaton, in relation to his Complex Post Traumatic Stress Disorder (C-PTSD) approximately every 3 months, another Psychiatrist, Dr Wood, in relation to his Attention Deficit Hyperactivity Disorder (ADHD) every 6 months, and a General Practitioner from weekly to monthly depending on his presentation at the time. He also reported consulting a psychologist in the past, but not currently, an Optometrist in relation to his Dyslexia, and a Podiatrist, both in the past. [83]
[83] Mate Report, page 194.
The Applicant does not currently receive any formal disability related supports.[84] He reports being turned away from all community-based formal supports he has approached because he was deemed ineligible.[85]
[84] Mate Report, page 197.
[85] Applicant’s SFIC at [177] to [179]; Transcript, Day 2, page 4, lines 5 -7.
Evidence in relation to health conditions and impairments
The medical evidence before the Tribunal in relation to the Applicant’s health conditions and impairments comprises the material submitted by the Applicant in support of his NDIS Access Request, some (limited) further material that was generated by specific treating professionals in response to targeted questions put to them by the Agency or the Applicant’s former legal representatives after the institution of this proceeding, and material obtained from the Applicant’s treating professionals in response to summonses issued to them by the Agency in June 2022 (and specifically placed into evidence in the Agency Bundle). As at the date of the hearing this material ranges in age between 10 years and 5 months and just under 2 years old.
This material falls into four broad categories which have some overlap, being:
i.Evidence related to neurological and orthopaedic investigation and management,
ii.Evidence related to the Applicant’s mental health conditions and their management,
iii.Evidence related to sleep investigations and management, and
iv.Evidence related to dyslexia investigation and its management.
The medical opinion submitted as a component of the Access Request itself has already been set out above. The further material is summarised following.
Evidence related to neurological and orthopaedic investigation and management
On 13 January 2014 the Applicant attended on Dr Wong, Neurosurgeon, at The Melbourne Neuroscience Centre, Department of Neurology, at The Royal Melbourne Hospital, for review on referral from a General Practitioner, Dr Buttar. Dr Wong reported the following observations to Dr Buttar following that consultation:
I reviewed [the Applicant] today in my Neurosurgery Clinic. [The Applicant] has returned to see me after his cervical MRI.
This patient last saw me in August 2012 complaining of chronic neck pain and some intermittent left arm pain. His chronic intermittent neck pain has been stable and he does not complain of any significant arm pain anymore.
This patient’s MRI scan done in October 2013 demonstrated minor cervical spondylosis but there is no significant canal stenosis, foraminal stenosis or neural compression.
Given the scan finding, I recommend to [The Applicant] to undergo conservative treatment for his cervical pain including restriction of physical activities, analgesic medication and physiotherapy/hydrotherapy.
From my point of view, no further neurosurgery follow up or intervention is required.
…[86]
[86] Agency Bundle, Tab R10, page 136.
On 1 May 2019 the Applicant attended Dr Quan, Spinal and Orthopaedic Surgeon, for review on referral from Dr Wickramasinghe, General Practitioner. Following review, Dr Quan reported the following observations to Dr Wickramasinghe, relevantly:
… As you are aware, he is a 33 year old man who has been on a disability pension for chronic low back issues for several years. These issues have remain in status quo and so I did not go into any great detail with regards to them.
As you are aware, since February this year he has been suffering some new, atypical symptoms. They developed quite insidiously without any major recollectable injury or triggering event and were associated with quite intractable pain in both the neck and the middle of his thoracic spine.
His main issue presently is that his pain continues to refer down his left arm into his middle, ring and little fingers. It is associated with numbness. It is also associated with some subjective weakness but he tells me that this weakness was more profound back in February and he has regained a lot of strength. His pain is worse at night keeping him from sleep, quite typical of neuropathic pain.
He has been reliant on regular Palexia for some respire [sic, respite?). He is getting a bit depressed and miserable with life. He is spending all his days either sitting or lying in bed, in the hope with that his pain will resolve. He is also describing some atypical body and leg twitching but he is actually not describing typical myelopathic features as such. He can still safely walk around significant distances comfortably.
On examination today he did walk slowly but with a smooth, symmetric gait, no ataxic component. Pertaining to his cervical spine he had satisfactory functional range of movement in all directions and extremes of range of movement did not really trigger any of his left arm brachialgia. He did not have any focal motor neurological deficit. He did however have some slightly reduced subjective sensation over the medial aspect of his hand and forearm.
He had a very sensitive MRI of his cervical and thoracic spines performed recently and I went through those images very carefully with him. He does have multiple areas of degenerative disc disease (spondylosis), a lot more than I like and would expect to see in a thirty year old, especially considering his lower back issues.
Pertaining to his referred upper limb pain which appears his [main] trouble, he does have moderate left sided paracentral degenerate disc protrusions at C6/7 and C7/T1 which are likely irritating the exiting left C7 and C8 nerve roots which would be in keeping with the dermatomal distribution of his pain and paraesthesia. I think these are best managed by way of injection therapy, targeting the most pathologic left C7/T1 neuroforamin first and hopefully this will be enough to get him over the line as major cervicothoracic discectomy and instrumented fusion surgery would not have a very favourable risk/benefit ratio in his case.
The separate issue of his T8/9 disc protrusion indenting on the anterior spinal cord and possibly causing a bit of myelomalacia I think at this stage is a red herring as the spinal canal is still capacious around the spinal cord thus there is no major neural compression or stenosis and he really is not describing symptoms or clinical features of thoracic myelopathy so we will keep an eye on this at this stage.
If the two injections do not settle things down for him and get him over the line I would be happy to review him again for reassessment.[87]
[87] Agency Bundle, Tab R29, page 239.
On 26 July 2019 the Applicant attended Dr Scott, Neurologist and Neurophysiologist, for consultation on referral from Dr Wickramasinghe, General Practitioner. Dr Scott reported the following observations to Dr Wickramasinghe following that consultation:
…
I saw [the Applicant] today for the first time.
[The Applicant] is a pleasant but somewhat complicated 20 year old … man
He presents for reassessment of his condition and is attending Dr Quan’s rooms. Going further back, he’s been worked up for narcolepsy +/- obstructive sleep apnoea and was recently diagnosed with a moderately severe disorder of the latter.
[The Applicant] presents with multiple neurological issues and is mainly concerned about unexplained atrophy of L FDI. He plays lots of video games and worries about his ability to use the L hand effectively. At times, he can drop objects and on other occasions, develops unexplained twitches and/or cramps. These occur in random parts of the body and become more prominent when recumbent. He has a history of back discomfort although denies pain radiating into either lower extremity.
Twitches mostly occur while falling asleep although a few have happened in clear consciousness. There are no reliable triggers and [the Applicant] has never had a convulsion.
Apart from ADHD, an elevated BMI and mild asthma, he is otherwise well.
[The Applicant] was prescribed Lyrica but stopped because of side effects. He uses a Ventolin inhaler prn and apparently reacts to tetracyclines and bee stings.
Socially, [the Applicant] takes minimal alcohol and is a non-smoker. He lives locally and isn’t using mobility aids.
On examination [the Applicant] was alert and appropriate. Speech and higher functions were within normal limits. Tone in both lower extremities appeared normal and there was no focal weakness on either side. Sciatic stretch tests negative. Knee reflexes brisk but symmetrical. Ankle jerks mildly reduced and plantars down going. Light touch and temperature perception preserved over both sets of toes. In the upper limbs, there was no focal weakness including FDI and APB on both sides. No finger-nose ataxia was detected and reflexes were reduced but symmetrical. Cranial nerves intact.
It will be difficult to reach a unifying diagnosis for his condition. He probably has mild cervical radiculopathy and could also have propriospinal or idiopathic myoclonus. If we don’t obtain clear answers within 2-3 months, I’ll consider referring him to Dr [redacted] Hughes who’s our movement disorders subspecialist. I’ve also encouraged [the Applicant] to forward a video clip of his movements.
Time constraints prevented us performing EMG and nerve conductions and I’ve scheduled these for next week. He’ll also have MRI scans of the entire spine with emphasis on the thoracic and lumbar regions. Scans will principally check for cord pathology including demyelination or mechanical compression and results will be forwarded. He’ll also undergo sensory and motor limb evoked potentials to exclude central conduction delay. Lastly, he’ll have a sleep-deprived EEG to screen for subclinical epileptiform activity, ceruloplasmin level, ANA/ENA and iron studies.
…[88]
[88] Agency Bundle, Tab R31, pages 262 - 263.

On 1 August 2019 the Applicant attended Dr Scott, Neurologist, on referral from Dr Wickramasinghe, General Practitioner. Dr Scott performed Sensory and Motor Nerve Conduction Studies and an Electromyography test. Dr Scott interpreted the results of those tests as follows:
Electrophysiological studies of the L upper and lower extremities revealed no evidence of neuropathy, myopathy, ulnar neuropathy across the elbow, cramp fasciculation syndrome or myotonia.
Central pathology cannot be excluded from the above data and a follow-up appointment will be arranged following the upcoming sensory and motor evoked potentials.[89]
[89] Agency Bundle, Tab R12, pages 144 - 145
On 1 August 2019 the Applicant was also reviewed again by Dr Quan on referral from Dr Wickramasinghe. In his report to Dr Wickramasinghe following that review, Dr Quan stated, relevantly:
…
He underwent a left C7 – T1 foraminal cortisone injection and this has profoundly helped with his referred arm brachialgia and neuropathic pain. In place, however, he has felt increasing weakness of his left upper limb and especially his hand and grip strength. He is dropping things and has trouble turning door knobs. He has noticed wasting of the posterior interosseous muscles and this is very obvious when comparing with the right side.
You have quite appropriately referred him to a neurologist, [Dr] Scott who he has only just seen and he is due to have some EMG/Nerve Conduction studies tomorrow which is a fantastic idea.
The new MRI of his cervical spine confirms the known degenerate hard disk disc osteophyte protrusion at C6/7 and C7/T1 and so if he feels this is all in keeping with C7 and C8 cervical radiculopathy then I have the option of considering decompressive cervical spine surgery but his neck is definitely not the best neck to operate on because of its shape and the fact that these stenotic levels are at the absolute base of the neck. This may well require both front and back surgery to try to reach it which would be a massive undertaking and he is very keen to avoid this if at all possible.
Thus, I would be very interested on hearing [Dr] Scott’s assessment and advise so that hopefully surgery can be avoided.[90]
[90] Agency Bundle, Tab R29, page 240.
On 5 August 2019 the Applicant attended on Dr Gonzales, Neurologist, on referral from Dr Scott. Dr Gonzales performed an Electroencephalogram with respect to query myoclonic epilepsy. Dr Gonzales reported the outcome of his tests as follows:
…
Factual Report
Posterior reactive 11 Hz alpha rhythm was present. Normal drowsing changes were present. No stage II sleep transients were seen. Normal ECG artefact was visible posteriorly.
No focal, periodic or epileptiform abnormality was seen in this study.
Hyperventilation and photic stimulation did not induce any abnormality.
No clinical events were reported during this EEG.
Conclusion
Normal EEG. No typical events were reported during the recording.[91]
[91] Agency Bundle, Tab R13, page 146.
On 1 October 2019 the Applicant was reviewed again by Dr Quan on referral from Dr Wickramasinghe. In his report to Dr Wickramasinghe following that review, Dr Quan states the following:
… I spoke to his neurologist [Dr] Scott [a couple of months ago] and we both agreed to adopt a wait and see approach. Apparently, his EMG/nerve conduction studies did not show anything majorly untoward, acknowledging his thenay [sic, thenar?] musculature wasting.
Over the past couple of months he has been suffering increasing pain as well as weakness and atrophy of not just his thenay [sic, thenar?] musculature but also his forearm extensors. His back pain has also increased and he is getting increasingly debilitated, depressed and frustrated by all of this. He is actually coming to the end of his tether with one year suffering like this and he is actually desperate for some help. Even though we all wanted to avoid surgery, he would now like to consider this as a last resort. He is due to see [Dr] Scott later this month for a further opinion.
I have already mentioned to him that if surgery were to be considered in my hands it would involve C6/7/T1 anterior cervicothoracic discectomies and fusion. This would not be technically straight forward due to his habitus and he understands this. There is a real risk of exacerbating his pre existing quite severe voice issues and swallowing difficulties. There is a chance that this will not make any difference to his pain or radiculopathy whatsoever. …[92]
[92] Agency Bundle, Tab R29, page 241.
By letter addressed ‘to whom it may concern’ also dated 1 October 2019, Dr Quan, Spinal and Orthopaedic Surgeon states:
This letter is to confirm that [the Applicant] has come in to see me on three separate occasions during the course of this year, with progressively debilitating neck pain and referred left – right arm pain consistent with cervical radiculopathy.
His objective MRI scan confirms degenerative C6/7/T1 hard disk osteophyte protrusions causing significant left sided neuroforaminal stenosis and likely compression and irritation of the exiting left C7 and C8 nerve roots in keeping with all of this.
He is also seeing a neurologist for further specialist opinion.
His symptoms have been so debilitating that he is considering major spinal decompression and fusion surgery to try to remedy this.
…[93]
[93] Agency Bundle, Tab R16, page 149.
On 14 January 2020 the Applicant attended Dr Evans, Neurologist, and his Advanced Trainee in General Medicine, Dr Hensey, for review at the Movement Disorders Clinic at The Royal Melbourne Hospital on referral from Dr Wickramasinge, General Practitioner. Following that review Dr Hensey reported the following to Dr Wickramasinghe:
…
On examination today, [the Applicant] was obese. He had normal gait pattern. Cranial nerves II, III, IV and VI were intact. There was subjective reduced sensation on the left side of the face with normal power. Cranial nerves IX, X, XI, and XII were intact. On examination of [the Applicant’s] upper limbs, there was no pronator drift. There was some hand asymmetry with some loss of muscle bulk in the left hand compared to the right. There was normal tone and power throughout all muscle groups of the upper limbs and reflexes were symmetrical. In the upper limbs was some sensory loss to temperature sensation, which was not in a dermatomal or peripheral nerve distribution. There was intact vibration sense throughout. On examination of the lower limbs, Romberg’s test was negative and there was a normal gait pattern. There was normal tone, power and reflexes and plantars were downgoing. There was some temperature sensation loss in the left lower limb, which was patchy and not in a dermatomal nor peripheral nerve distribution. There was normal vibration sense.
I saw [the Applicant] with Dr Evans who reviewed the history and the investigations that have been done to date. He was reassured by the negative investigations and felt it was likely that there was no organic cause for the symptoms. It is likely that [the Applicant’s] symptoms are as a result of a combination of anxiety, chronic pain and deconditioning. We attempted to enter into a discussion with [the Applicant] about the nature of this and what could be done; however [the Applicant] had very fixed ideas that there was an undiagnosed organic cause to these symptoms and could not accept that there was no organic cause found on investigations to date. He was not willing to discuss strategies on how to improve his symptoms.
If he were willing to engage in strategies in future, we would suggest input of physiotherapy, dietetics and psychology …[94]
[94] Agency Bundle, Tab R31, page 261.
On 22 April 2021 the Applicant again attended Dr Scott, Neurologist and Neurophysiologist on referral from his General Practitioner, Dr Wickramasighe. Dr Scott reported the results of this review to Dr Wickramasinghe as follows:
…
Since our last contact [the Applicant] remained relatively stable.
As before, he reports a number of seemingly unrelated symptoms including L facial numbness, fluctuating fatigue and intermittent numbness of both hands. In addition he has L sided neck/lower back pain and recent MRI scans revealed low-grade C-7 root irritation. On the positive side, he isn’t experiencing major problems with his carpal tunnel condition despite not wearing splints or receiving hand therapy. [The Applicant] denies radicular symptoms in either lower limb and general health appears fairly stable.
Limb examination revealed no focal weakness and reduced by symmetrical reflexes. Tinel’s tests negative over the carpel tunnels and Phalen’s tests negative after a minute. No objective sensory deficits or muscle tenderness apparent. Finally, there was no facial weakness or ptosis and eye movements were full.
[The Applicant] has bilateral carpel tunnel syndrome as well as possible cervical radiculopathy which appears inactive. The question is whether he has fibromyalgia or chronic fatigue syndrome and an opinion from a Rheumatologist might be helpful. Given the ongoing uncertainty, I’ve requested a second opinion from Professor John Archer … Hopefully John can see [the Applicant] within 3-4 months and I’ve forwarded relevant clinical letters to him.
…[95]
[95] Agency Bundle, Tab R21, page 167.
On 16 June 2021 the Applicant attended A/Professor Archer, Neurologist, for review and second opinion on referral from Dr Scott. His findings were reported to Dr Scott as follows:
…
[The Applicant] currently presents with a range of symptoms which took some time to explore. He reports intermittent brief periods of neck pain which come and go. He feels he is generally low in energy and has had a couple of episodes of foggy vision. At one point, he reported wasting of the small muscles of the left hand, in particular the thenar eminence but feels this has now resolved. He describes occasionally stumbling and falling to the ground “in slow motion”. This has happened once in the shower and he wondered whether the heat was responsible. He did not injure himself. He describes intermittent pain in his hands that come and go, lasting minutes at a time. The pain seems to be over all the fingers. He also reports reduced sensation in his hands and says he accidentally injures them from time to time. He had some Band-Aids on a couple of fingers. [The Applicant] describes intermittent cramping of the hands. This tends to come on late in the afternoon with the hands developing a cramping posture for around a minute, resolve for a minute and then recurring camping once more off and on for around 20 minutes. The symptoms spontaneously abate if he lies down and relaxes. [The Applicant] reports periods of sleep paralysis where he wakes and is unable to move briefly. At other times he has periods of sleepwalking.
…
On examination [the Applicant] was not acutely unwell. He was moderately overweight and softy spoken. He was polite and cooperative. Neurologically, gait was normal including tandem gait and Romberg’s testing. He was able to rise from a chair without the use of arms. Examination in the bunk confirmed mild action tremor of the left greater than right upper limb. He was quite muscular and there was no evidence of wasting of the small muscles of the hands or forearms. Power was normal of shoulder abduction, elbow flexion and extension, wrist extension, finger abduction, extension and grip as well as thumb abduction. Reflexes were present at the biceps, triceps, supinator and finger jerks and in the lower limbs were present at the knee and ankle with flexor plantar responses. External ocular movements were smooth and full. There was a full range of facial movements and speech was no evidence of dysarthria or dysphasia. Blood pressure was elevated on two occasions at 150/100 in the seated position.
I note that Dr Scott has performed a number of investigations previously including nerve conduction studies which did reveal mild delay in the median nerve conduction velocities across the wrist. He has been reviewed by a surgeon who felt that the hand symptoms were not consistent with carpal tunnel and has had conservative management recommended. [The Applicant] appears happy with this assessment. A range of blood tests have also been performed although I did not have access to these results. I am not aware of any major concerns. I am aware that the CK level was at the upper limit of normal but this clearly would not account for the various sensory symptoms. There has been some discussion of referral to a rheumatologist given some joint symptoms which is not unreasonable. The MRI of the cervical spine showed some “low grade C7 nerve root irritation.” This (sic) are all of uncertain significance.
In summary, [the Applicant] reports a wide range of symptoms but has a paucity of hard neurological signs. Investigations thus far revealed only minor abnormalities which do not appear to account for his range of neurologic symptoms.
I am somewhat concerned that [the Applicant] is hypertensive, tremulous and anxious, all of which could be a consequence of the high dose of stimulant medication he is taking. I had a frank discussion that the doses of these stimulants may need to be adjusted and he will have this discussion with his psychiatrist. I also raised the concept that many people get a range of unusual bodily sensations, some of these can be not serious but if they are focused on, seem to take on greater importance than they warrant. Obviously, it is important to distinguish between these sensations and any serious medical issues but the absence of hard neurological signs is reassuring.
…[96]
[96] Agency Bundle, Tab R31, page 258.
On 1 April 2022 the Applicant attended Dr Scott, Neurologist and Neurophysiologist for further review on referral from Dr Wickramasighe, General Practitioner. Dr Scott reported the following outcomes of that review:
I caught up with [the Applicant] to perform follow-up nerve conduction studies.
[The Applicant] reported a number of ongoing issues including reduced energy, mood swings, a tendency to become hyper-focused on individual subjects and variable tingling and or numbness in both distal lower limbs while sitting for long periods. Lastly, he tends to drop objects from either hand, R -L and reports variable issues with short-term memory and concentration.
Given the time available, we focussed mainly on his hands. Examination revealed no objective weakness in any major group and there was no shoulder-finger ataxia.
Nerve conduction studies revealed median neuropathy at both wrists. Findings are consistent with mild L/moderate R carpel tunnel syndrome and in view of his failure to improve with conservative measures, I’ve referred him to Professor Gavin Davis. Hopefully, Gavin can see and/or talk to [the Applicant] within 2-3 months and in the interim, it might be worthwhile organising ultrasound scans of the R wrist.
With regard to his brain MRI findings, I’ve reassured [the Applicant] that the subcortical T2 hyper-intense lesions in the frontal lobes appear non-specific. Nevertheless, I’ve organised follow-up scans to exclude new or active demyelinating plaques and we’ll recheck his cervical spine at the same time. The report will be forwarded to you and you could organise scans of the lumbosacral spine given the tingling and/or numbness that he’s experiencing in the lower limbs.
I haven’t made immediate changes to treatment. If sensory symptoms become unmanageable, you could consider low-dose Cymbalta or Tegrotol. Gabapentin is another options although isn’t on the PBS schedule. Finally, there is the option of referring him to Rheumatology for an opinion regarding fibromyalgia or chronic fatigue syndrome.
I’ll reassess [the Applicant] in 4 months and as a final aside, his recent urine collection revealed no evidence of abnormal adrenaline or noradrenaline excretion. The latter findings argue against a diagnosis of pheochromocytoma.
…[97]
[97] Agency Bundle, Tab R31, page 251.
Evidence related to the Applicant’s mental health conditions and their management
The evidence in relation to the Applicant’s mental health conditions can be summarised as follows:
i.In the NDIS Access Request – Supporting Evidence Form dated 21 July 2018, Dr Ahmed, General Practitioner, completed in relation to the Applicant’s first NDIS Access Request, he records the Applicant has having a primary impairment, among several stated, of Adult ADHD and Anxiety and depression, which he states “can be lifelong”. He records the treatment of this impairment as Dexamphetamine. He recommends referral to a psychologist for early intervention support. In relation to the functional impact of these impairments, in the domain of “social interaction”, Dr Ahmed states the Applicant requires assistance from other persons because “sometimes he has panic attacks with social anxiety and can not leave home”.[98]
[98] Agency Bundle, Tab R11, pages 137 - 143.
ii.A letter to Dr Eaton, Consultant Psychiatrist, from Dr Wood, Consultant Psychiatrist, dated 19 October 2017 in response to Dr Eaton’s referral of the Applicant for review. That letter contains the following clinical observations:
…
He is very likely to have adult persistent ADHD.
His pathway to this diagnosis has been somewhat entangled with combined obesity, disordered sleep, and musculoskeletal problems (lower back), on the background of complex Post Traumatic Stress Disorder (childhood physical and sexual abuse)
I note the diagnosis of ADHD as a child, but rejection of the trial of a psychostimulant by his mother.
There is no evidence of personality disorder nor of affective or anxiety disorder.
His substance use history is though informative:
1.    Duromine to facilitate weight loss (he tells me he dropped 10kgs) but also enhanced his capacity to sustain his focus in academic processes.
2.    He has used a lot of caffeine each day to remain more alert.
3.    Marijuana use to help with pain control; has still been infrequent at once each two to three weeks (he reports no off-putting psychological reaction).
[The Applicant] is very keen to become a game designer; he can easily focus in [sic] video games for 12 hours plus.
Taking all the above into account, I have a strong sense he has adult ADHD.
I have arranged a series of appointments to review [the Applicant] over the next three months, involving a Behavioural Analysis, psychoeducational material, and will probably discuss a trial of psychostimulant in November 2017.[99]
[99] Agency Bundle, Tab R30, pages 242 - 243.
iii.A letter from Dr Eaton, Consultant Psychiatrist, to Dr Wickramasinghe, General Practitioner dated 12 February 2018 following a review of the Applicant conducted on that date. Dr Eaton observes:
…
He has been treated with dexamphetamine for ADHD. He has found this medication beneficial. He has been more focused and has been functioning better at home. He is now involved in market trading and has found that he is learning and progressing well with this. He is exercising. He is feeling confident and his anxiety has reduced.
On mental state he was calm and settled. He was soft spoken. His mood was good, His affect was reactive. Had some positive thoughts. His insight was good.
I have not made any changes. I will see him again in 3 months.[100]
[100] Agency Bundle, Tab30, page 244.
iv.A letter to Dr Ahmed, General Practitioner, from Dr Wood, Consultant Psychiatrist, dated 13 December 2018 following a specialist review. Dr Wood advises:
I continue to review [the Applicant] for ADHD …
I can now confirm his psychotropic medication as:
·Lis dexamphetamine 70mg mane,
·Dexamphetamine 5mg mane, 20mg five hours later and 15mg four hours beyond that.
·Alprazolam 1mg nocte is enabling reasonable sleep initiation.
…
In view of his persistent self-doubt (not depression, but more a free flooding anxiety, commonly co-morbid with ADHD but also with asthma, I have asked him to trial Duloxetine 30mg over the Christmas/New Year period
He derived significant benefit from Desvenlafaxine in the past, but ceased this due to hair loss. SSRI’s in the past were ceased due to [redacted – a particular side effect].
…[101]
[101] Agency Bundle, Tab R30, page 245.
v.A letter from Dr Eaton, Consultant Psychiatrist, to Dr Wickramasinghe dated 26 May 2020 following a clinical review conducted on that date. Dr Eaton observes:
I reviewed [the Applicant] today. He is taking duloxetine 30mg od.
He is feeling good in himself. He has had some issues with disturbed sleep pattern recently. His mood has remained good and he is managing life through the lockdown. He is near the completion of a number of long term tasks and feels content about this. He does have some issues with weakness in both hands/arms but is having specialist follow up with this.
On mental state he was calm and settled. He was soft spoken. His mood was fair. His affect was reactive. He had some positive thoughts. There were no morbid thoughts. His insight was good.
I have not made any changes…[102]
[102] Agency Bundle, Tab R30, page 246.
vi.A letter from Dr Eaton, Consultant Psychiatrist, to Dr Wickramasinghe, General Practitioner, reporting the outcomes of a clinical review of the Applicant conducted on 11 May 2021. Dr Eaton reports:
I reviewed [the Applicant] today.
[The Applicant] has been busy at home. He can feel apathetic but more recently has been busy repainting his car. He has not suffered issues with procrastination during [this] project. He can still feel frustrated and betrayed by a number of happenings in his life. Anxiety is no longer an issue and he feels confident.
He continues to see Dr Wood for his ADHD management.
On mental state he was calm and settled. He was soft spoken. His mood was fair. His affect was reactive. He had some positive thoughts but also expressed his frustration. There were no morbid thoughts. His insight was good.
I have not made any changes today. …[103]
[103] Agency Bundle, Tab R30, page 247.
vii.A letter to the Applicant dated 14 February 2022 from Dr Eaton, Consultant Psychiatrist, which is apparently in response to targeted questions put to him by the Agency or the Applicant’s then legal representative. In that letter Dr Eaton states, relevantly, that the Applicant has experienced “recurrent Major Depressive Disorder” and “Unspecified Trauma Disorder” noting that “this is a designated classification for trauma disorder that does not fit the criteria of other more well known disorders such as Post-traumatic Stress Disorder”. Dr Eaton states that it is difficult for him to give a precise date of onset of these conditions because they were present when he first assessed the Applicant in 2012, but that the Applicant has reported to him difficulties with his mental health going back to age 14 in 2003. Dr Eaton also notes a diagnosis of Attention Deficit Disorder but states that the Applicant is treated by another psychiatrist (Dr Wood) for that condition. Dr Eaton goes on to state the following in relation to the treatment of these conditions and the impact of this treatment:
…
2.[The Applicant] has trialled many therapeutic interventions over the years for these disorders. He has trialled multiple cognitive therapies with no definitive benefit. He has also used duloxetine 2019-2020 (no clear benefit), sertraline (not tolerated), desvenlafaxine (not effective), and valproate (not tolerated), agomelatine (2016) (not effective), Aripiprazole (2012) ineffective.
3.[The Applicant] currently has supportive psychological therapy. In view of the chronicity of his problem his condition is stable and no further changes are expected in regard to improvement.
4.As noted, the current treatment is to assist in maintaining stability rather than improving his overall psychological state.
5.I expect him to be able to perform tasks in the future at his current level of function with the treatment he receives.
6.        There are no other treatments available to [the Applicant].
7.[The Applicant] has generally limited his engagements with society due to his experiences in the past (due to his disorders). He can suffer fatigue and decreased motivation that also impair his function. Assistance from services to help lift his functional abilities would have a positive impact on his self-esteem. Engagement in activities that promote social engagement may prove difficult for him though.
8.He has minimal social interaction and actively avoids contact with others. He procrastinates. This delays his ability to complete tasks. He is able to care for himself on a personal level. He can frequently feel misunderstood. Dyslexia impedes written communication. His ability to concentrate and attention are reduced and this impacts on learning. There are no issues with mobility as such, but fatigue can impair his ability to engage and carry out tasks.[104]
[104] Agency Bundle, Tab R23, pages 169 - 170.
viii.A letter to Dr Wickramasinnghe, General Practitioner, from Dr Eaton, Consultant Psychiatrist, dated 14 February 2022 following his review of the Applicant on that date. Dr Eaton reports:
I reviewed [the Applicant] today.
[The Applicant] has been “rattled” as he has [had] MRI brain recently that revealed white matter hyperintensities. He is worried as he has read that MS is a possible cause of this.
Apart from this he had been feeling reasonably good. He continues to have issues with low mood and irritability but these have not been as severe.
He is looking forward to a possible house move ….
On mental state he was calm and settled. He was soft spoken. His mood was concerned. His affect was subdued. There were no morbid thoughts. His insight was good.
I have not made any changes today and continued with supportive work. I will see him again in 3 months.[105]
[105] Agency Bundle, Tab R30, page 250.
ix.A letter to the Agency’s legal representative dated 1 March 2022 from Dr Wood, Consultant Psychiatrist, apparently in response to targeted questions, which states that the Applicant has been attending on him for psychiatric consultation since 16 October 2017 following referral from Dr Eaton. Dr Wood states the following, relevantly:
…
At that time I confirmed his psychiatric diagnosis as:
1.    Adult Persistent Attention Deficit Disorder (Adult ADHD), diagnosed but not treated in childhood, with secondary morbid obesity, sleep apnoea (CPAP intolerant – a multiple sleep latency test was unremarkable), persistent insomnia with phase delay and caffeine overuse.
2.    Post Traumatic Stress Disorder (PTSD with a history of childhood abuse (his father was prosecuted).
3.    Comorbid asthma, irritable bowel syndrome (both far more prevalent in persons with ADHD)
4.    Chronic pain – headaches, back pain (work-related 2010).
5.    Et al.
·     Of note there was a history of documented hypertension, predating any use of psychostimulant medication.
·     Recent neurological assessments have not revealed any significant neurological signs.
His current psychotropic medication regime is
·Dexamphetamine 15mg mane and a further 15mg one or two doses later in the day (i.e. often nine tablets daily).
·Lis dexamphetamine 70mg one hour post the initial dexamphetamine dosage.
·Alprazolam 1mg enables satisfactory sleep initiation. Melatonin, Doxepin and Oxazepam have been unhelpful.
·SSRI/SNRI medications have been trialled including Desvenlafaxine and Duloxetine, but only induced side effects.
[The Applicant] despite effectiveness of the psychotic medication regime now in place, continues to struggle with social interactions and to manage his own self-care (nutrition, weight loss, physical condition) in a resilient way.[106]
[106] Agency Bundle, Tab R24, page 171 - 172.
x.Dr Wood provided a substantially similar letter dated 31 October 2022 addressed to the Applicant’s then legal representative, apparently also in response to targeted questions. Apart from setting out the dates of consultations attended between October 2017 and July 2022, the letter contains the following additional statements:
…
5.        Et. Al.
…
·I have NOT made a diagnosis of obsessive-compulsive disorder (OCD).
…
His current psychotropic medication regime is
…
·He is entirely compliant and adherent to the prescribed psychotropic regime and psychotherapy focusing on developing living behavioural strategies (he is unable to derive any benefit from cognitive behaviour therapy (CBT), due to his high level of cognitive distractibility and poor task completion consequent upon his ADHD.
…
His level of impairment has been stable for the past three years.[107]
[107] Agency Bundle, Tab R25, pages 173 - 174.
Evidence related to sleep investigations and management

The Applicant also referred in his evidence to poor spelling ability slowing him down and to his tendency to misread documents as resulting in him missing appointments.[310]
[310] See paragraph 123 above.
In response to questions put to him by the Agency, the Applicant outlined various techniques he utilises to manage the impact of his language related impairments. This includes using an online text to speech filter for written material which helps ensure he is reading material correctly and using a calendar (‘year board’) and phone alarm to diarise appointments. He also word processes documents and in doing so utilises program-based spelling and grammar check functions. He agreed with counsel for the Agency that none of these techniques had been recommended (prescribed) by a doctor and were generally available aides. As noted above, the Applicant was unable to identify any impairment related support he would seek to be provided under the NDIS in relation to his language related impairments if access was granted.[311]
[311] See paragraph 57 above.
For completeness, I note that Ms Bulmer records in her assessment the Applicant’s self-report that he has moderate difficulty in understanding what people say, and of starting and maintaining a conversation, as a result fatigue.[312] I infer that this fatigue is derivative of the Applicant’s sleep disorder which I have not found to be permanent for the purposes of s 24(1)(b). Functional impairment said to be derivative of that disorder therefore cannot be considered under s 24(1)(c).
[312] Bulmer report, page 162.
It is not in issue that the Applicant is able to speak fluently, hear, read, and use communication technology (telephone, email, internet etc) independently.[313]
[313] Mate report, page 202; Bulmer report, page 162.
I am thus not satisfied that the Applicant’s language-related impairments result in substantially reduced functional capacity in communication. The impact of these impairments is relatively mild and substantially alleviated by generally available technologies and adaptive strategies.
Social interaction
I have found that the Applicant lives with cognitive impairments of global and specific mental function which are attributable to C-PTSD and ADHD and that this involves impaired energy, motivation, and emotional regulation, including anxiety. The s 24(1)(c) issue is whether those impairments result in the Applicant having substantially reduced functional capacity for social interaction. I am satisfied that they do not.
I accept that the Applicant’s impairments are inhibiting of his social interaction,[314] but I am not satisfied that they are preclusive of it. In this respect, I note that the Applicant reported to Mr Mate that he ‘may experience symptoms of anxiety and even dissociate which may make social interactions difficult, but he is able to perform social interaction tasks despite this’.[315]
[314] Dr Eaton’s opinion at paragraph 80(vii) above at internal paragraphs 7 and 8 (“… has generally limited his engagements with society …”; “…has minimal social interactions…”); Dr Wood’s opinion at paragraph 80(ix) above (“… continues to struggle with social interactions…”).
[315] See paragraph 89(iv) above.
Despite his impairments, the Applicant reported to Mr Mate at his assessment that he has a small group of approximately six friends ‘with whom he remains in close contact, communicates regularly with, and sees occasionally in person’ and that he ‘is often introduced to friends of his friends and feels he can easily slot into their groups’.[316]
[316] See paragraph 89(1) above.
At the hearing the Applicant disputed that he had reported those things to Mr Mate. This led to the following exchange between the Applicant and counsel for the Agency:
… Yet, to Mr Mate, you’ve reported that you are often introduced to friends – of your friends – and that you feel like you can easily ‘slot into’ the group. Is that correct? ---- No, that’s not the exact wording I used. So it’s --- that’s hearsay. Its not evidence. I thought I’d been very ---
(indistinct words) evidence don’t ---? I thought I had been very clear about this. Like, I have a very small group of friends, and they’re all like me. The friends that I have, they’re all as socially isolated as I am, in a way. So I might not speak to someone for, like, six months. And then they’ll do the same. And it’s just because we’re socially isolate. But we understand each other, in that sense, which is why we have a maintained friendship. As far as being introduced to other friends, this sometimes happens, with more social friends of mine who want me to be more social. So they introduce me. When I ‘slot into’ those groups, it’s not – its not me. Like, I can’t be myself. I don’t feel like I fit. I can’t explain it very well.
But you can ‘slot into’ the group? --- Ugh. If it was, say, a once-off event: yes. But not a continued offer – thing, no.
Right. So the – when Mr Mate reports that you ‘often’ – that you said to him you ‘often’ were introduced to friends of his – of friends – that’s not, in fact, true? So it’s not ‘often’ that that would happen? – No. No, it’s not.[317]
[317] Transcript, Day 1, page 27, line 34 to page 28, line 10.
Careful reflection on that exchange does not lead to the conclusion that Mr Mate inaccurately described the Applicant’s friendship network. The Applicant confirmed that he has a small group of like-minded friends with whom he can and does interact. Through some of his ‘more social’ friends he can and does sometimes meet other people, although he contends, he does not enjoy this. The Applicant does not refer to his capacity to do these things being substantially reduced by impaired energy, motivation, or emotion attributable to his C-PTSD or ADHD. Rather he indicates that his functional performance of interactions with his friends and with people introduced to him by his friends is limited by his and their personal preferences.
Section 24(1)(c) is concerned with the functional capacity of a prospective applicant, not their functional performance. In this case it is the Applicant’s own evidence that he has the capacity to socially interact with a small group of friends both in person and by other means. The fact that he does not choose to do so in typical ways is substantially the result of his personal preference not to.
In his PCIS the Applicant refers to his friends ‘helping him out to rebuild a car for him for a price he could afford’.[318] In her consultation notes, Dr Kay refers to the Applicant as having an ‘occasional bed partner’.[319] This is also evidence of the Applicant’s capacity for social interaction with others when he chooses this.
[318] Applicants PCIS, page 109.
[319] See paragraph 81(iv)(a) above.
There is no issue in this review that the Applicant can behave in his social interactions within limits accepted by others. In the assessment conducted by Mr Mate the Applicant agreed that this was so.[320]
[320] See paragraph 89(iii) above.
Having regard to this evidence I am satisfied that while the Applicant’s impairments attributable to C-PTSD and ADHD do impact on his functional capacity for social interactions, they do not do so to such a degree that its results in any of the outcomes specified in Rule 5.8 of the NDIS (Becoming a Participant) Rules. The Applicant can effectively participate in social interactions without assistance despite any reduction in his functional capacity in this area of life activity. Although ‘social anxiety’ is a factor limiting the Applicant’s interactions with the broader community, it does not prevent him from interacting with his close friends, or their friends. Any limit on his interactions with these groups results from his personal choices.
Mr Mate states the opinion that a major issue impacting on the Applicant’s social interaction functional capacity is his disrupted sleep pattern; that is, fatigue and a non-normative sleep cycle. In this respect, he recommends the Applicant engage with an occupational therapist to improve his sleep hygiene.[321] I have not found the Applicant’s sleep disorder permanent for the purposes of s 24(1)(b). Any reduction in functional capacity that is derivative of that condition therefore cannot be considered under s 24(1)(c).
[321] See paragraphs 89(ii) and (v) above.
Learning
I have found that the Applicant lives with cognitive impairments of specific mental function related to language and with cognitive impairments of global and specific mental function which are attributable to C-PTSD and ADHD involving impaired functions related to energy, motivation, and attention. The s 24(1)(c) issue is whether those impairments result in the Applicant having substantially reduced functional capacity for learning. I am satisfied that they do not.
The Applicant’s language related impairments potentially affect the Applicant’s ability to accurately interpret written and oral information in a learning context. However, as I have already found with respect to the communication life activity area, the impact of these impairments is relatively mild and substantially alleviated by generally available technologies and adaptive strategies.
The Applicant gave evidence of receiving specialised learning assistance in relation to his language related impairments in the past, and of the difficulties he experienced because of these impairments throughout school.[322] Nevertheless, the Applicant completed his secondary education and went on to enrol in two tertiary degrees. He has not completed either degree, but the Applicant does not contend, and there is no evidence, that this was because of any impairment related to language. The Applicant is not presently enrolled in any formal learning activity. He did not give evidence as to any specific current learning activity that is impacted by his language related impairments.
[322] See paragraphs 122 and 123 above.
There is some evidence that the energy, motivation, and attention related impairments that are derivative of C-PTSD and ADHD impact on the Applicant’s learning capacity. In this respect, in his letter dated 14 February 2022, Dr Eaton states the Applicant’s ‘ability to concentrate and attention are reduced’.[323] However, against that, on his review on 12 February 2018, Dr Eaton concluded that due to treatment with dexamphetamine ‘[the Applicant] has been more focused and has been functioning better at home. He is now involved in market trading and has found that he is learning and progressing well …”.[324] On review on 26 May 2020 Dr Eaton also observed “[the Applicant] has been busy at home … has been busy repainting his car. He has not suffered issues of procrastination during [this] project …”. Having regard to those observations, I note that Dr Eaton’s 14 February 2022 letter also states that he “expects [the Applicant] to be able to perform tasks in the future at his current level of function with the treatment he receives”.
[323] See paragraph 80(vii) above.
[324] See paragraph 80(iii) above.
Having regard to this evidence, I can be satisfied that the Applicant’s energy, motivation, and attention related impairments do impact on his functional capacity to learn, but they do not substantially reduce it for the purposes of s 24(1)(c). Despite these impairments, the Applicant can still effectively participate in learning activities and tasks without assistance (leaving to one side the medical management of these conditions).
Mobility
I have found that the Applicant lives with physical, neurological, and sensory impairments of body structure and function related to his C6, C7 and T1 vertebrae, and C7 and C8 spinal nerves. The s 24(1)(c) issue is whether those impairments result in the Applicant having substantially reduced functional capacity for mobility. I am satisfied that they do not.
The Applicant lives in a two-level dwelling which has an internal staircase. Mr Mate observed the Applicant to independently access all areas of his home without difficulty. He did not observe the Applicant to experience any difficulty with balance or mobility. Nor did he observe the Applicant to experience pain when performing this activity. [325] Ms Bulmer also observed the Applicant to be able to climb a short staircase with banister independently when he attended her clinic for assessment.[326]
[325] Mate Report, page 203.
[326] Bulmer Report, page 163
The Applicant did report to Mr Mate that climbing stairs was sometimes problematic for him due to back pain, that there have been occasions in the past when he has lost co-ordination and fallen, and more recent occasions when he has tripped and stumbled on the stairs.[327] However, the Applicant attributes that pain and those incidents to his undiagnosed neurological condition which is not established for the purposes of s 24(1)(b).[328] Any reduced functional capacity imputed to such an impairment therefore cannot be considered under s 24(1)(c).
[327] Mate Report, page 203 – 204.
[328] See paragraph 109.
The Applicant reported to Mr Mate that he can access cupboards, storage and shelving within his home independently and without difficulty. He also reported to Mr Mate that he can complete car, shower, toilet, and bed transfers independently and without difficulty.[329] I do not understand the Applicant to dispute these reports. In any event, there is no evidence to the contrary. Mr Mate observed the Applicant to complete chair transfers several times.[330] Ms Bulmer also observed the Applicant to be capable of independently and safely standing from a sitting position.[331]
[329] Mate Report, page 204.
[330] Ibid.
[331] Bulmer Report, page 163.
The Applicant has a driver’s license and car. He reports driving regularly. He also reports that he can catch trains, buses, and hire vehicles (taxi’s etc). By these means he has the functional capacity to access essential services, shops, and community facilities.
The Applicant was observed by Mr Mate to be capable of walking independently, although he also reported to Mr Mate that he sometimes uses a single pointed walking stick to maintain balance/stability.[332] Ms Bulmer also made a direct observation that the Applicant was able to walk without difficulty, and with a steady and safe gait, up to 50m.[333]
[332] Mate Report, page 204.
[333] Bulmer Report, page 163.
The Applicant does contend that his ability to drive and catch public transport is impacted by fatigue that is derivative of his sleep disorder. I have not found the Applicant’s sleep disorder to be permanent for the purposes of s 24(1)(b). Any reduced functional capacity imputed to such an impairment therefore cannot be considered under s 24(1)(c).
The Applicant also contends that his ability to utilise public transport is impacted by pain that is derivative of his putative undiagnosed neurological disorder. I have not found that condition established for the purposes of s 24(1)(a). Any functional impairment that is imputed to that condition therefore can’t be considered under s 24(1)(c).
Self-care
I have found that the Applicant lives with physical, neurological, and sensory impairments of body structure and function related to his C6, C7 and T1 vertebrae, and C7 and C8 spinal nerves and with cognitive impairments of global and specific mental function which are attributable to C-PTSD and ADHD involving impaired functions related to energy, motivation, and attention. The s 24(1)(c) issue is whether those impairments result in the Applicant having substantially reduced functional capacity for self-care. I am satisfied that they do not.
As I have set out above in relation to mobility, the evidence is that the Applicant is able to dress and undress (including manipulate buttons, don, and doff socks and shoes, and tie his shoelaces), shower (wash his whole body), and toilet independently, although he may use an adjusted technique to do so.
With respect to toileting specifically, the Applicant reported to Mr Mate that he sometimes experiences difficulties with anal continence related to a putative irritable bowel syndrome, but that he can manage this independently. He reported that he is independent with perineal hygiene, and that he can wash both hands independently.[334] I do not understand the Applicant to now contend otherwise.
[334] Mate Report, page 204.
With respect to grooming specifically, the Applicant reported to Mr Mate that he can clean his teeth, wash his face, shave, brush and style his hair, and cut his finger and toenails independently.[335] I do not understand the Applicant to now contend otherwise.
[335] Mate Report, page 205.
With respect to meals and nutrition, the Applicant reported to Mr Mate that back pain and distractibility derivative of ADHD reduce his functional capacity for more complex meal preparation. To overcome these difficulties the Applicant reported that he prepares simpler meals (such as sausages) or buys pre-prepared meals.[336] Mr Mate recommended that the Applicant purchase a kitchen perching stool to address back pain that results from any standing intolerance during meal preparation.[337] A kitchen perching stool is a generally available item. It is not a specialist disability related item of equipment. In his PCIC the Applicant contended that he relied substantially on this mother for meal preparation. However, in response to questions from counsel for the Agency he conceded that is no longer the case in new home environment.[338]
[336] Mate Report, page 205.
[337] Mate Report, page 206.
[338] Transcript, Day 1, page 23, line 23.
With respect to shopping, the Applicant reported to Mr Mate that he can shop independently, although due to fatigue arising from his sleep disorder he may delay doing so.[339] As I have noted, I have not found the Applicant’s sleep disorder permanent for the purposes of s 24(1)(a). Any functional impairment that is imputed to that condition therefore can’t be considered under s 24(1)(c).
[339] Mate Report, page 205.
In his oral evidence, the Applicant stated that he shops by attending shops personally, and by ordering his shopping over the internet.[340] He also stated that he continues to rely upon his mother to do his shopping, specifically referring to social anxiety as a barrier to him undertaking shopping personally.[341] I do not understand the Applicant to contend that his social anxiety inhibits his capacity to order his shopping online. With respect to his evidence about his mother’s assistance, there are the difficulties I outlined above. That is, there is no corroborating evidence from the Applicant’s mother that would enable me to ascertain if such assistance is provided in response to any reduction in the Applicant’s functional capacity to perform these tasks independently as distinct from a reduction in his functional performance that relates to a personal factor. Nor am I able to ascertain if the degree of any such assistance provided is normative or non-normative support between familial adults.
[340] Transcript, Day 1, page 23, 45 – 46.
[341] Transcript, Day 1, page 22, lines 43 – 45.
With respect to domestic activities, the Applicant reported to Mr Mate that he can perform domestic housecleaning tasks (dusting, sweeping, vacuuming, mopping, bathroom scrubbing, washing up and kitchen cleaning), general tidying, and lawn mowing and yard maintenance independently, although he sometimes becomes distracted from these tasks or procrastinates about their performance. Mr Mate observed the Applicant’s home environment to be neat and tidy to a high standard. In his oral evidence, the Applicant agreed with the proposition put to him by counsel for the Agency that his home was very clean, stating: “yes. It’s part of the OCD, I’ve got to have things very clean”.[342]
[342] Transcript, Day 1, page 23, lines 27 – 31.
With respect to light laundry (clothing) and heavy laundry (bed linen), the Applicant reported to Mr Mate that he can perform these tasks independently, although he sometimes becomes distracted from these tasks or procrastinates about their performance. Mr Mate observed freshly laundered clothing drying on an indoor airer on the day of his assessment. He also observed the Applicant to be wearing clean clothing on that day.[343]
[343] Mate report, page 206.

In his oral evidence, the Applicant contended that he continues to rely substantially on his mother to do his laundry.[344] However, I face the same difficulties with evaluating this evidence that I have outlined above in relation to shopping.
[344] Transcript, Day 1, page 22, line 43.
Having regard to the totality of the evidence I cannot be satisfied that the Applicant has substantially reduced functional capacity to perform the range of tasks that together constitute the self-care life activity area. The impairments I have found that are attributable to the Applicant’s mental health conditions do have some impact on his functional capacity in relation to some self-care tasks, but this does not amount to a substantial reduction in functional capacity with respect to these tasks individually, let alone with respect to the whole of the activity area. Notwithstanding the impact of his impairments, the Applicant can perform self-care tasks effectively without assistive technology, or specialist equipment, or home modifications, and he does not usually require the assistance of others (including his mother) to do so.
Self-management
I have found that the Applicant lives with cognitive impairments of global and specific mental function which are attributable to C-PTSD and ADHD involving impaired functions related to energy, motivation, and attention. The s 24(1)(c) issue is whether those impairments result in the Applicant having substantially reduced functional capacity for self-management. I am satisfied that they do not.
Mr Mate assessed the Applicant as having cognitive capacity for planning, problem solving and decision-making. He also assessed him as being able to take independent responsibility for the completion of activities of daily living (as detailed in relation to the other life activity areas), and as being able to manage his own finances.[345]
[345] Mate Report, page 206
In his oral evidence, the Applicant contended that his ability to self-manage was cyclical, and that while he has been functioning well in this life-activity area for some time, he was presently in the process of losing that ability. I found this evidence unsatisfactory. It was given argumentatively to ‘stitch up’ what the Applicant apprehended was an emerging difficulty for him qualifying for access to the NDIS based on what he had stated in is SFIC. This is illustrated in the following excerpt of his oral evidence in response to questions asked of him by counsel for the Agency:
[referring to the Bulmer Report and the Applicant’s SFIC filed 6 May 2024]
Now, ‘extreme impairment’, that refers to … the information that you’ve provided as part of the assessment? So that’s what you self-reported? That you have ‘extreme impairment’ when it comes to self-management, at that time? – Yes.
We have just previously talked about, though, that in your current statement, you state that, apart from being, at times, too fatigued to drive due to sleep issues, you don’t have any substantially reduced functional capacity when it comes to self-management” – This goes back to what I was saying before about cycles.
So, at that point, you had a cycle where your self-management was significantly impaired? – Yes
But at the moment, right now, at this point in time, is your evidence that – of your statement – that you don’t have substantially reduced functional capacity when it comes to self-management? – No. It’s – it’s coming back in. It’s getting worse.
So it got worse as of two days ago? Or, what do you mean? – No. Its been a gradual build up since last year. And, no-one confirming that data – this is why I’ve been so agitated about it.
…
I’m asking about the ability to self-manage ‘at this point in time’? – Yes.
…
… But what we need to provide the Tribunal with is information about ‘today’. And --? – Yes. Well
From what I can see, in your statement, you say that, at the moment, apart from sometimes when too tired to drive due to your sleep issues, you have no substantially reduced functional capacity when it comes to self-management. Is that correct? No, that’s not what I said.
So let’s just go to your statement then. It was filed a couple of days ago with the Tribunal? Which part?
… paragraph 156? --- Yes, I agree, ‘in part’, about self-management.
Yes. And the part you don’t agree with is the part that’s impacted by the sleep? – It’s not just sleep. As I also state, in my statement, I have not had sufficient time to prepare a statement …[346]
[346] Transcript, Day 1, page 26 line 1 to page 27, line 15.
There is essentially no objective or other satisfactory evidence before me that could lead me to the conclusion that the Applicant experiences substantially reduced functional impairment in any task or activity related to his self-management. Any reduced function arising from his distractibility, procrastination, or decreased energy, derivative of C-PTSD and ADHD is not substantial on the evidence before me. I am satisfied that the Applicant can perform the tasks and activities of self-management effectively without assistive technology, or specialised equipment, or home modifications, and he does not usually require the assistance of others to do so.
For completeness, insofar as the Applicant contends that any reduced function in self-management is derivative of his putative undiagnosed neurological condition and/or sleep disorder I have not found that those conditions meet the satisfy the impairment requirement of s 24(1)(a) and permanence requirement of s 24(1)(b) respectively. Any functional impairment that is imputed to these conditions therefore cannot be considered under s 24(1)(c).
Summary with respect to s 24(1)(c)
I have not found that the Applicant experiences substantially reduced functional capacity because of his permanent impairments in any of the life activity areas specified by s 24(1)(c).
Summary with respect to the disability requirement
For the reasons set out above the Applicant ultimately does not meet the disability requirement for access to the NDIS.
I note in this respect that having regard to cumulative nature of the requirements in s 24, and the findings I have made in relation to the requirements of ss 24(1)(a),(b) and (c) it is unnecessary for me to consider the requirements of ss 24(1)(d) and (e).
Early intervention requirement
(iv)Does the Applicant meet the early intervention requirement for the NDIS? In this case this requires consideration of the following separate, cumulative, sub-questions:
(a) Does the applicant have one or more identified intellectual, cognitive, neurological, sensory, or physical impairments that are, or are likely to be permanent, or one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent?
(b) If the answer to (a) is “yes” can the Tribunal be satisfied that the 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?
(c) If the answer to (b) is “yes” can the Tribunal be satisfied that it would do so in one or more of the following ways:
(i)by mitigating or alleviating the impact of the person’s impairment upon the Applicant’s functional capacity in the prescribed activities of life? 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?
(d) If the answers to (b) and (c) are “yes”, is the early intervention support most appropriately funded or provided through the NDIS?
For the reasons stated above I have determined on the evidence before me that the Applicant lives with the following impairments which are permanent or likely to be permanent:
(i)physical, neurological, and sensory impairments of body structure and function related to his C6, C7 and T1 vertebrae, and C7 and C8 spinal nerves,
(ii)cognitive impairment of global and specific mental functions which are attributable to C-PTSD and ADHD,
(iii)cognitive impairments of specific mental functions of language arising from Dyslexia.
There is no evidence before me that would permit me to conclude that early intervention supports would benefit the Applicant by reducing his future needs for support in any of the ways contemplated by s 25(1)(b) and (c) of the Act as informed by the evidentiary requirements specified in Rule 6.9 of the NDIS (Becoming a Participant) Rules.
The only articulation of an early intervention support that appears in the material before me in relation to the Applicant’s present Access Request is found in Section 2 of the Access Request Form as completed by Dr Wickramasinghe. He identifies as the relevant support “finding housing in Melbourne” which he states would enable the Applicant to engage with specialists and other health professional more easily.[347] Dr Wickramasinghe does not identify which specialists or what specific interventions they would provide the Applicant that would have one or more of the effects described in s 25(1)(c).
[347] See paragraph 26 above.
I am not satisfied that “housing in Melbourne” is capable of being an early intervention support within the meaning of s 25. It is not an impairment-related treatment or support. It is a subsistence support, which in any event is not a support that is appropriately provided or funded under the NDIS. Housing assistance (as distinct from disability-related independent living support) is a separate, general system of service delivery and support which is external to the NDIS for the purposes of s 25(3). In this respect the Applicant is already provided with social housing. Any change of location and configuration of that housing assistance is a matter for his housing provider, not the NDIS.
In the Access Request – Supporting Evidence Form he completed in relation to the Applicant’s first Access Request in July 2018, Dr Ahmed identifies ‘physiotherapy’ and ‘psychology’ as early intervention supports that would improve the Applicant’s functional capacity and strengthen the sustainability of the Applicant’s existing supports. However, he also states that the Applicant has already “been referred” for that assistance, presumably through the health system.[348] As at the date of the hearing the Applicant presents with a history of consultation with a psychologist from whom he has disengaged. Both Dr Eaton and Dr Wood opine that psychological interventions have not been successful in treating the Applicant’s mental health conditions.[349] There is therefore no evidence before me that could persuade me that psychological interventions are an early intervention support that would benefit the Applicant, even if this was asserted in the present Access Request, which it is not. On the material before me I do not know the outcome of Dr Ahmed’s referral of the Applicant for physiotherapy. In any event, this is not asserted as a form of early intervention support that would benefit the Applicant at this time, and even if it had been, there is nothing in the evidence which indicates why such assistance is most appropriately provided by the NDIS, rather than through the health system.
[348] T Documents, Tab T5, page 46.
[349] See paragraphs 26 and 80(vii) and (x) above.
In his evidence, the principal support the Applicant identified as being of assistance to him was transport, which I understand to be for-hire transport (taxis and rideshare).[350] He contends that this would allow him to reliably attend medical and other appointments which he sometimes misses due to fatigue which makes it unsafe for him to drive, and fatigue and pain, which makes it difficult for him to use public transport. I have not found the putative undiagnosed neurological condition an impairment for the purposes of s 25(1). Nor have I found the Applicant’s sleep condition permanent for the purposes of that section. Early intervention supports are therefore not available to the Applicant in relation to those conditions. Having regard to that, I leave to one-side the question of whether transport assistance could constitute an early intervention support.
[350] See paragraph 56 above.
As I have set out above, the Applicant repeatedly asserted that he should be provided with access to the NDIS now so that it is available to him should his condition deteriorate in future, which he is confident it will.[351] In this respect he appears to conceptualise pre-emptive access to the NDIS as early intervention.[352] He also appears to conceptualise early intervention as being medical intervention directed at the cure or treatment of a health condition, specifically his asserted undiagnosed neurological condition, as distinct from treatment or support directed at maintaining or enhancing functional capacity related to impairment.[353] He is misconceived in both respects.
[351] See paragraph 108 above.
[352] Ibid.
[353] Ibid.
The early intervention requirement is only capable of being satisfied where a person would presently benefit in a specified way from a specified intervention or support that would have one of the effects specified in s 25(1)(c). It is not met on a ‘just in case’ or speculative basis or in the absence of the precise identification of the intervention or support and the benefit the prospective Applicant is likely to obtain from it.
Nor is the early intervention requirement met where it is medical treatment that is required to prevent the onset or progression of the health condition which gives rise to the impairment. By operation of s 25(3), treatment of that nature is more appropriately provided or funded through the health system, not the NDIS. In any event, insofar as his early intervention access request relates to an undiagnosed neurological disorder, I have not been satisfied as to the existence of an impairment derivative of that condition. It therefore cannot be considered under s 25.
For the foregoing reasons, I cannot be satisfied that the Applicant meets the early intervention requirements for the NDIS.
Conclusion
For the foregoing reasons I am not satisfied that the Applicant, on his current presentation, is a person for whom the NDIS is intended. He does not meet either disability or early intervention requirements for access to the scheme. The delegate of the CEO reached the same conclusion in her decision following internal review. I therefore affirm that decision as correct.

I certify that the preceding 295 (two hundred and ninety-five) paragraphs are a true copy of the reasons for the decision herein of

........................................................................
Associate
Dated: 5 July 2024

Date(s) of hearing: 8 and 9 May 2024

Applicant: In person

Counsel for the Respondent: Ms Hoffmann

Medication/treatment/ intervention	Date Started	Date ceased	Effect on impairments
Multiple psychological	unsure
Duloxetine	2019	2020	unsure
Sertraline	not tolerated
Dexamphetamine	2018	2019	unsure
Lis dexamphetamine	2019	2021	Effective
Alprazolam	2018	2021	Partially effective
Desvenlafaxine	Not effective
Valproate	Not tolerated.

Date(s) of hearing:	8 and 9 May 2024
Applicant:	In person
Counsel for the Respondent:	Ms Hoffmann