Farrell and National Disability Insurance Agency (NDIS) - [2025] ARTA 1354

Farrell and National Disability Insurance Agency (NDIS) [2025] ARTA 1354 (30 May 2025)
Applicant:Mark Farrell
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/8513

Tribunal: General Member J Toohey
Place:Brisbane
Oral Decision: 30 May 2025

Written Reasons: 2 June 2025
Decision:The Tribunal affirms the decision under review that the Applicant does not meet the access requirements in section 21 of the National Disability Insurance Scheme Act 2013 (Cth).

Statement made on 02 June 2025 at 11:01am
General Member J Toohey
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Access – Impairments which are likely to be permanent – Becoming a participant rules – Rule 5.6 – Impairments requiring further medical review – Decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Kelly v National Disability Insurance Agency [2024] FCA 1462
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Statement of Reasons

These reasons were provided orally on 30 May 2025. I have added citations and quotes for the decisions I referred to.
I have decided that Mr Farrell does not meet the access criteria as set out in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’). I appreciate this will be a very disappointing outcome for the Applicant given his challenging circumstances and the time and energy that he has been put into seeking access.
To meet the access criteria a person must meet the age requirements, the residency requirements, and the disability requirements. As an alternative to meeting the disability requirements, a person can also meet the early intervention requirements. There is no dispute, and I agree, that Mr Farrell meets the age and residency requirements.
I also agree that Mr Farrell has impairments related to his medical conditions. These medical conditions include osteoarthritis, nerve compression, neuropathic pain, Raynaud’s syndrome, anxiety, depression, and cervical spondylosis. It is clear to me that Mr Farrell is enduring very high levels of persistent pain and this pain is impacting most aspects of his life.
It is not clear to me that this level of pain is likely to be permanent within the meaning of the NDIS Act and National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘Becoming a Participant Rules’). Rule 5.6 says that:
An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
The Federal Court considered the application of rule 5.6 in Davis.[1] Justice Mortimer (as the Chief Justice then was) said:
… r 5.4 and r 5.6 prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person’s impairment will be excluded from meeting the permanency criterion in s 24(1)(b).[2]
… r 5.6 directs attention to a negative state of fact – whether an impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated. To be clear, although these rules are expressed in objective terms, their purpose is to guide the repository’s formation of a state of satisfaction for the purposes of s 21(1)(c) of the NDIS Act; namely that the repository (here the Tribunal):
is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24) ...
Therefore, what the Rules, and relevantly r 5.6 in particular, guide, is the formation of a state of satisfaction.[3]
[1] National Disability Insurance Agency v Davis [2022] FCA 1002.
[2] Ibid, [75].
[3] Ibid, [158 – 159].
It is also important to remember that it is the impairment, rather than a condition or diagnosis, that must be considered. While Mr Farrell may have several medical conditions that are permanent and degenerative, it does not necessarily follow that the impairments from these conditions are permanent within the meaning of the NDIS Act and the Becoming a Participant Rules.
The Applicant’s General Practitioner, Dr Mbangani, gave the following evidence;
(a)he has referred Mr Farrell for a further assessment by a neurologist and neurosurgeon;
(b)it is for the neurosurgical team to decide whether surgery or other treatments such as cortisone injections would benefit Mr Farrell;
(c)he could not say whether Mr Farrell’s nerve damage is permanent or not without a nerve conduction study;
(d)he has also referred Mr Farrell to a multidisciplinary pain specialist team, and this team may be able to assist in reducing the severity of Mr Farrell’s symptoms.
In my view, this is a situation where rule 5.6 applies. At this point in time, I am not satisfied that Mr Farrell’s nerve pain is permanent because there is a further medical review that is required to demonstrate this permanency. Review by a neurologist, and particularly a nerve conduction study, is required before the permanency of Mr Farrell’s nerve damage can be established. To be clear, I am not saying that Mr Farrell is required to undertake surgery or some other specific treatment. What I am saying is that I do not know what further treatments are available to Mr Farrell and whether these treatments might improve his impairments or not. Once these further reviews are completed, it may be that Mr Farrell considers applying for access to the NDIS again.
I also accept that the Federal Court decision in Kelly is relevant with regards to the availability of treatment options and the ordinary features of the public health waiting lists, intake and assessment of risk factors.[4] I consider that a similar conclusion can be reached in respect of rule 5.6 with regards to waiting times that might occur in seeking a medical review in the public health system.
[4] Kelly v National Disability Insurance Agency [2024] FCA 1462, [88-90].
As rule 5.6 applies, Mr Farrell is excluded from meeting the disability requirements in section 24 of the NDIS Act. The permanency of impairments is also a requirement to meet the early intervention requirements in section 25 of the NDIS Act. Therefore, Mr Farrell is also excluded from meeting the early intervention requirements.
As I have concluded that Mr Farrell’s impairments do not currently meet the permanency criteria, I do not have to consider whether his impairments also result in a substantially reduced functional capacity. However, I would observe that the uncertainty in relation to the permanency of Mr Farrell’s impairments also creates some difficulty in properly assessing the extent to which his functional capacity is reduced. I acknowledge Mr Farrell’s evidence and lived experience that his impairments have become worse since the functional capacity assessment conducted by the independent occupational therapist, Ms Jodrell. I consider that Mr Farrell provided honest and consistent evidence. The worsening of his back, including nerve impingements, was confirmed by Dr Mbangani and informed by a more recent CT scan completed in February 2025.
The assessment by Ms Jodrell showed that Mr Farrell has a reduced functional capacity. Ms Jodrell was clear in her opinion that Mr Farrell did not a substantially reduced functional capacity in one of more of the activities set out in section 24 if the NDIS Act. Ms Jodrell also indicated that a review assessment would be necessary to consider any deterioration in Mr Farrell’s functional capacity. The evidence from Dr Mbangani is that there may by pain management, surgical, or other interventions that could reduce the severity of Mr Farrell’s impairments. This makes it difficult to be satisfied that Mr Farrell’s impairments will remain in the severe category or might yet be improved to a more moderate level.
Also, the Full Court of the Federal Court in the decision in Foster[5] drew a distinction between the activities in section 24 of the NDISAct and the bundle of tasks that make-up that activity. as a whole. Finding that a task within an activity cannot be completely effectively does not mean that the overall activity cannot be completed effectively.[6] In Mr Farrell’s situation, he has difficulties with some tasks within the ‘mobility’ activity. These difficulties appear to have become worse since Ms Jodrell’s assessment. In order to meet this criteria, Mr Farrell would need to be assessed as having a severe difficulty in enough of the tasks that make up the activity of mobility, such that he has a substantially reduced functional capacity with this activity as a whole. It is not clear to me that this is currently the case for Mr Farrell.
[5] National Disability Insurance Agency v Foster [2023] FCAFC 11.
[6] Ibid, [65-66].
Finally, I also acknowledge the very challenging situation that Mr Farrell faces and the commendable resilience he has shown. I appreciate Mr Farrell and Dr Mbangani’s frustration with the delays in seeking further neurological assessment. This assessment is primarily the responsibility of the health system. Delays in the public health system are not a deficiency that the NDIS is designed to address.
Similarly, Mr Farrell’s accommodation is far from satisfactory. However, his housing needs are primarily the responsibility of the public housing system to address. It is not the responsibility of the NDIS to ensure that Mr Farrell has access to accommodation which meets a general minimum standard. If Mr Farrell becomes a NDIS participant in the future, there will be a role for the NDIS to assess his accommodation needs and potentially provide modifications for accessibility. In the meantime, there are Western Australian schemes such as the Community Aids and Equipment Program[7] and the Western Australian public housing program.[8] I appreciate that public housing may also have extended wait lists. I encourage Mr Farrell to seek support from these programs.
[7] >
Permanency of impairments is required to meet the disability requirements in section 24 and the early intervention requirements in section 25 if the NDIS Act. As I am not satisfied that Mr Farrell’s impairments are permanent, as guided by rule 5.6 of the Becoming a Participant Rules, Mr Farrell does not meet the requirements for access to the scheme.
DECISION
Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision under review that the Applicant does meet the access criteria provided under section 21 of the National Disability Insurance Act 2013 (Cth).

Dates of hearing: 28, 29 and 30 May 2025

Representative for the Applicant:
Self-represented, with assistance from Ms L McCosh, Esperance Care Services

Solicitors for the Respondent:

Counsel for the Respondent:

Mr J Barlow, Maddocks Lawyers

Mr T Lettenmaier, Murray Chambers