Ghezzaoui and National Disability Insurance Agency

Ghezzaoui and National Disability Insurance Agency [2023] AATA 2835 (7 September 2023)
Division:                   NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2021/7358
Re:Zeino Ghezzaoui
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President Antoinette Younes
Date:7 September 2023
Place:Sydney

The Tribunal affirms the decision under review.
........................................................................
Deputy President Antoinette Younes
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – disability requirements – post traumatic stress disorder – depression – anxiety – chronic pain – whether the impairments are, or likely to be, permanent – whether the impairments result in substantially reduced functional capacity – whether the Applicant is likely to require support under the scheme – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
Nika v National Disability Insurance Agency [2021] AATA 2127
SECONDARY MATERIALS
National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS (Web Page) FOR DECISION
Deputy President Antoinette Younes
7 September 2023
BACKGROUND

On 6 July 2021, the Applicant lodged his application with the Tribunal seeking review of a decision of a delegate of the CEO of the National Disability Insurance Agency (the Respondent) dated 25 May 2021. That decision determined that the Applicant did not satisfy the requirements for access to the National Disability Insurance Scheme (the NDIS) set out in sections 22 to 25 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act). Specifically, the Applicant was found not to satisfy ss 24 and 25 of the Act.
In his access application dated 25 January 2021, the Applicant identified Post Traumatic Stress Disorder (PTSD), depression, and anxiety as primary disabilities. The Applicant also provided evidence of physical impairments associated with chronic pain. He requested assistance in relation to mobility/motor skills, communication, social interaction, learning, self-care, and self-management.
On 23 February 2021, a delegate of the Respondent refused the Applicant’s request for access as the delegate was not satisfied that the Applicant met the ‘disability requirements’ under s 24 of the Act, or the ‘early intervention requirements’ under s 25 of the Act. Subsequently, the Applicant submitted further evidence of physical impairments attributable to neuralgia of the right hand/arm and upper limb (Neuralgia).[1]
[1] T6, R1, 47.
On 25 May 2021, following the Applicant’s request for internal review, a decision was made under s 100(6) of the Act, confirming the decision made on 23 February 2021.[2]
[2] T2, R1, 20-29.
On 6 July 2021, the Applicant lodged an application for review in the Tribunal, under s 103 of the Act. Since then, the Applicant and the Respondent requested that this review application be decided ‘on the papers.’
The Tribunal may only determine a review application ‘on the papers’ with the consent of all parties to the review application. The Tribunal has had regard to the case of National Disability Insurance Agency v Davis[3] in considering whether the parties have had a fair opportunity to provide evidence and make submissions on the relevant issues and factors in this case. The Tribunal is satisfied that all the material before the Tribunal was made available to the parties before their final written submissions and that they have had a fair opportunity to consider all the relevant material and the issues raised in this case.
[3] National Disability Insurance Agency v Davis [2022] FCA 1002.
The Tribunal has decided that this matter is an appropriate one to determine ‘on the papers,’ without the parties participating in an oral hearing. In doing so, the Tribunal has taken into consideration all the material before it, including letters and reports from medical and allied health specialists and written submissions.
LEGISLATION
In order to become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, as follows:
(1)A person meets the access criteria if:
(a)    the CEO is satisfied that the person meets the age requirements (see section 22); and
(b)    the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)    the CEO is satisfied that, at the time of considering the request:
(i)the person meets the disability requirements (see section 24); or
(ii)the person meets the early intervention requirements (see section 25).
There is no dispute that the Applicant satisfies the age requirements and the residence requirements. The Applicant will meet the access criteria if he satisfies either s 24 (disability requirements) or s 25 (early intervention requirements).
Section 24 of the Act provides as follows:
(1)A person meets the disability requirements if:
(a)    the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)    the impairment or impairments are, or are likely to be, permanent; and
(c)    the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management; and
(d)    the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)    the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
Section 25 of the Act concerns the early intervention requirements.
The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation.
The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[4] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (the Operational Guideline).[5]
[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.
[5] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) <>
The parties agree, and the Tribunal finds that the Applicant meets the requirement that he has a disability that is attributable to physical and psychosocial impairments (s 24(1)(a)), and the requirement that the impairments affect his capacity for social or economic participation (s 24(1)(d)).
The Respondent however contends that the Applicant does not satisfy the balance of the disability requirements (ss 24(1)(b), (c) and (e)).
EVIDENCE
The following relevant material is before the Tribunal:
(a)Respondent’s Statement of Facts, Issues, and Contentions (SOFIC) dated 3 May 2023.
(b)Joint hearing tender bundle provided on 24 July 2023, containing various clinical reports and other documents, as discussed below.
(c)T-Documents provided on 15 November 2021.
ISSUES
The Respondent contends that the decision under review should be affirmed, as the Applicant does not satisfy ss 24(1)(b), (c) and (e) or s 25 of the Act.
CLINICAL EVIDENCE
The Respondent contended that the clinical evidence before the Tribunal does not support a finding that the Applicant meets the access criteria.
There are a number of referrals and results of scans. The following are relevant reports from various practitioners.
Dr Mohsen Gerges, General Practitioner
In a letter dated 7 February 2009,[6] Dr Gerges noted that the Applicant is suffering from injury in the right thumb and he cannot carry heavy objects.
[6] Joint Hearing Tender Bundle, A1, 1.
In a letter dated 6 October 2009,[7] Dr Gerges noted that the Applicant is suffering from a recurrent infection in the right thumb affecting the right shoulder and is not responding to antibiotics.
[7] Joint Hearing Tender Bundle, A2, 2.
In a letter dated 11 March 2011,[8] Dr Gerges noted that the Applicant is suffering from “post traumatic neuralgia” which has been treated with norspan patches.
[8] Joint Hearing Tender Bundle, A4, 5.
In a letter dated 5 July 2021,[9] Dr Gerges referred to the Applicant’s operations to the right thumb and right elbow.
[9] Joint Hearing Tender Bundle, A19, 43.
Dr Gerges referred the Applicant to Dr Ian Rebello.
Dr Ian Rebello, Surgeon
In various letters and reports,[10] Dr Rebello provided updates in relation to the Applicant’s pelvic floor dysfunction. He referred the Applicant to Dr Michael Suen, Colorectal Surgeon, who provided reports dated 26 August 2020.[11]
[10] Joint Hearing Tender Bundle, R6, 162-172, 189, 190, 191.
[11] Joint Hearing Tender Bundle, R6, 182-183.
Ms Julia Wild, Hand Therapist
In a report dated 26 November 2009,[12] Ms Wild discussed, among other things, the Applicant’s significant anxiety. A report dated 16 February 2010 also noted the Applicant’s significant anxiety.[13]
[12] Joint Hearing Tender Bundle, R3, 88.
[13] Joint Hearing Tender Bundle, R3, 91.
Dr Jeff Kuan, Radiologist
On 28 October 2010,[14] Dr Kuan reported on a brain and cervical spine MRI, which found “no acute ischemia or restricted diffusion…no aneurysm, vascular malformation, or focal stenosis…At C5/6 there is disc desiccation… At C6/7 there is disc desiccation…”
[14] Joint Hearing Tender Bundle, A3, 3-4.
Dr Keith Mayne, Consultant Psychiatrist
In his report dated 17 March 2011,[15] Dr Mayne wrote to Dr Gerges referring to discuss, among other things, the Applicant’s workplace injury to his right hand.
[15] Joint Hearing Tender Bundle, A5, 6-7.
Dr Mayne reported that the Applicant was unhappy about his situation and is angry and irritable because of the pain, which causes poor sleep. He was referred to Dr Cox, a pain specialist, who prescribed him antidepressants. Dr Mayne noted that the Applicant suffers from chronic adjustment disorder with depressed and anxious mood because of his injuries and suffers from associated disability and ongoing pain.
In a report dated 31 March 2011,[16] Dr Mayne reported that the Applicant returned to see him, complaining of pain associated with distress and insomnia. Dr Mayne noted that the Applicant appeared to have “unreasonable expectations” of what a psychiatrist can achieve, some four years after the original injury, and that the Applicant was in considerable distress.
[16] Joint Hearing Tender Bundle, A6, 8.
In further reports dated 1 September 2011, 26 April 2012, 17 July 2012, and 15 October 2012,[17] Dr Mayne provided updates to Dr Gerges and reported on matters such as increased weight, anxiety, agitation and reduced quality of sleep.
[17] Joint Hearing Tender Bundle, A8, A10-A12, 23, 25-27.
Dr Mark Nabarro, Hand & Microsurgeon
In various reports from 24 July 2008 to 25 August 2010,[18] and in multiple subsequent reports from September 2010 to June 2017, Dr Nabarro provided regular updates referring to the Applicant’s workplace injury treatments, including surgery on 22 January 2010[19]and recommendations.[20]
[18] Joint Hearing Tender Bundle, A9, R3, 24, 58-66, 69-70.
[19] Joint Hearing Tender Bundle, R3, 67-68.
[20] Joint Hearing Tender Bundle, R3, 71-82.
Dr Medhat Guirgis, Consultant Orthopaedic Surgeon
On 21 June 2011, Dr Guirgis wrote a comprehensive report as requested by Macquarie Medico-Legal & Psychological Services,[21] essentially relating to the Applicant’s workplace injury. Reports of multiple areas of pain were noted.
[21] Joint Hearing Tender Bundle, A7, 9-22.
Dr Jeni Saunders, Sport and Exercise Physician
In a letter dated 5 March 2013,[22] Dr Saunders referred the Applicant to St George Hospital Hydrotherapy for consideration of a hydrotherapy program.
[22]Joint Hearing Tender Bundle, A14, 29.
Dr Max Ellis, Orthopaedic Surgeon
Dr Ellis provided a report dated 6 February 2015[23] to the Applicant’s lawyers in relation to the workplace injury, referring to various upper limb impairments.
[23] Joint Hearing Tender Bundle, A16, 37-38.
Mr Mohammed Makkouk, Physiotherapist
In a letter dated 27 August 2018,[24] Mr Makkouk referred to the Applicant’s pains and outlined treatment.
[24]Joint Hearing Tender Bundle, R5, 152.
Dr Jacqueline Youssef, Mental Health Specialist/Clinical Social Worker
In a report dated 9 March 2020,[25] Dr Youssef wrote to the Department of Housing supporting the Applicant for the allocation of urgent and priority housing. Dr Youssef referred to, among other things, the Applicant’s history of pain, depression, PTSD, anxiety, adjustment disorder, and disturbed sleep.
[25] Joint Hearing Tender Bundle, R4, 105-106.
In a report dated 24 August 2020,[26] Dr Youssef updated Dr Gerges.
[26] Joint Hearing Tender Bundle, R4, 120.
Dr Youssef provided a report dated 25 January 2021,[27] in which she indicated that:
·The Applicant suffers from major depression, stress and anxiety, chronic and severe back pain, neck, knees, legs, poor sleep, fatigue, memory, disorientation and poor concentration. Dr Youssef notes that these conditions and symptoms impact his ability to manage his emotions, build trust, engage with others in the community, complete daily tasks independently, and manage his mental wellbeing.
·He lacks motivation, self-confidence and he has no friends with whom he interacts as he finds it difficult to leave home. He would like to be more in control of his emotions and to increase his independence and deal with his anxiety and self-esteem.
·He requires several items to achieve his goals, including transport for appointments, cleaning equipment, entertainment, and recreational activities.
·He requires 24 hours of one hour of counselling per fortnight, to assist him in, among other things, emotional regulation, building strength and independence.
[27] Joint Hearing Tender Bundle, A18, 40-42.
Mr Hamza Hamwi, Physiotherapist
In a report dated 4 September 2009,[28] Mr Hamwi referred to the Applicant’s ongoing pain and treatment plan.
[28] Joint Hearing Tender Bundle, R5, 121.
Mr Derryn Chiu, Physiotherapist
In a letter dated 5 May 2021[29] and 8 June 2021,[30] Mr Chiu wrote to the Respondent outlining treatment.
[29] Joint Hearing Tender Bundle, R5, 122.
[30] Joint Hearing Tender Bundle, R5, 154.
In a letter dated 5 July 2021,[31] Mr Chiu wrote to the Respondent noting that the Applicant has been a patient since 2018 in relation to chronic pain with neuralgia in the right hand and arm. Mr Chiu recommended ongoing weekly physiotherapy and hydrotherapy.
[31] Joint Hearing Tender Bundle, A20, 44.
In a letter dated 25 August 2021,[32] Mr Chiu provided an outline of the Applicant’ pains and ongoing treatment.
[32] Joint Hearing Tender Bundle, R5, 156.
Dr N Balendran, Radiologist
In a report dated 1 October 2022,[33] Dr Balendran referred to the results of a CT lumbar spine, including, “pseudo-articulation between the partially lumbarised S1 vertebral and the ilac wing on the left leading to severe osteoarthritic change with mild, local similar changes seen inferiorly on the right. This [is] likely the cause for the patient’s symptoms.”
[33] Joint Hearing Tender Bundle, A21, 45.
Mr Dean Ellis, Physiotherapist
In a report dated 28 April 2010,[34] Mr Ellis referred to his treatment of the Applicant’s neck and right arm.
[34] Joint Hearing Tender Bundle, R3, 92.
Ms Katrina Lethbridge, Occupational Therapist
In a report dated 6 October 2010,[35] Ms Lethbridge referred to her treatment of the Applicant’s right thumb.
[35] Joint Hearing Tender Bundle, R3, 93.
Dr Jeni Saunders, Sport and Exercise Physician
In reports dated 15 November 2012[36] and 13 May 2013,[37] Dr Saunders referred to the Applicant’s workplace injuries and treatments.
[36] Joint Hearing Tender Bundle, R3, 94-95.
[37] Joint Hearing Tender Bundle, R3, 96.
Ms Melissa Sale, Occupational Therapist
Ms Sale provided a report at the request of the Respondent dated 3 November 2022.[38] Ms Sale noted the Applicant’s diagnoses of neuralgia of the right upper limb following the hand injury in 2007, chronic region pain syndrome (CRPS) of the right upper limb, neuralgia that extends to his neck, shoulders and back, PTSD, major depression and generalised anxiety disorder secondary to his chronic pain issues.
[38] Joint Hearing Tender Bundle, R8, 207-250.
Ms Sale noted that whilst the medical evidence provided does not comment on the permanency of his impairments, the impact of his impairments has been great, with Mr Ghezzaoui having difficulty or inability to perform many of his usual daily living activities as a result of his medical conditions.
In relation to functional capacity, Ms Sale observed that the Applicant should avoid:
a)mobilising for more than 10 minutes without access to a break;
b)repetitive stair climbing (or using stairs without access to a handrail);
c)prolonged standing (max 10 minutes);
d)prolonged static sitting (max 30 minutes);
e)dynamic twisting and rotating of the trunk;
f)bending, stooping and low-level reaching;
g)work below knee level (including squatting, crouching, kneeling);
h)use of the right hand for forceful gripping or squeezing;
i)lifting and carrying of more than 500 grams with the right hand;
j)lifting more than 3 kilograms with the left hand;
k)engaging in activities that do not allow for sufficient rest breaks;
l)engaging in tasks regardless of mood;
m)engaging in tasks that require a moderate degree of sustained attention and/or concentration; and
n)communicating his needs in an unrestricted manner (at all times).
In summary, Ms Sale assessed the Applicant in the domains of communication, social interaction, learning, mobility, self-management, self-care and occupational therapy service provision.
Ms Sale’s conclusions are discussed below.
FINDINGS and REASONS
Section 24(1)(a) - Disability attributable to an impairment
The Respondent accepts and the Tribunal finds that the Applicant has impairments attributable to his conditions of chronic pain, neuralgia, PTSD, major depression, and anxiety, and as such s 24(1)(a) of the Act is met.
Section 24(1)(b) - Permanence
Section 24(1)(b) of the Act requires the Applicant's impairment or impairments to be permanent.
To conclude that the Applicant meets s 24(1)(b), the Tribunal must be satisfied that there are no known, available, and appropriate evidence-based clinical, medical or other treatments that would likely remedy the impairment. An impairment may require medical treatment or review before it can be found to be permanent.
Rule 5.6 of the Access Rules states:
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 Operational Guideline provides guidance in relation to s 24(1)(b), namely:
Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.
Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments which are [NDIS (Becoming a Participant) Rules rr 5.4, 6.4]:
·    known and available
·    appropriate for you and your impairment
·    evidence-based – that is, there’s proof they are likely to be effective.
…
If you’re still undergoing or have recently had treatment, we’ll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent [NDIS (Becoming a Participant) Rules rr 5.6, 6.6].
…
For degenerative impairments, or those that get worse over time, we consider them permanent if treatment isn’t likely to help or improve the impairment’s effects [NDIS (Becoming a Participant) Rules rr 5.7, 6.7.]
58.Relevantly, in National Disability Insurance Agency v Davis,[39] Justice Mortimer considered the meaning of ‘permanent’ in s 24(1)(b). At [80], reflecting the language of the legislation and contrary to the policy emphasised above at rule 5.7, the adjective ‘permanent’ attaches to the impairment. In Davis, her Honour held that the correct meaning of “permanent” in s 24(1)(b) is “enduring.”[40] This meaning reflects the purpose and context of the legislative NDIS, as it is intended to deliver lifelong support to persons with disability.[41] Her Honour stated that the critical point is that “permanent” is used as an adjective in s 24(1) to the noun “impairment” (or in the plural, “impairments”). The focus of the text, consistently with the purposes of the NDIS, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the NDIS.
[39] National Disability Insurance Agency v Davis [2022] FCA 1002.
[40] National Disability Insurance Agency v Davis [2022] FCA 1002 [86].
[41] National Disability Insurance Agency v Davis [2022] FCA 1002 [85].
An ‘impairment’ within s 24 “is generally understood as involving the loss of, or damage to a physical, sensory or mental function.” Mortimer J in Mulligan v National Disability Insurance Agency,[42] observed with respect to s 24(1)(a):
“Some general observations should be made about these matters. The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which…is generally understood as involving the loss of or damage to a physical, sensory or mental function.”
[42] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 [51].
The central question for the Tribunal is whether the impairment(s) experienced by the Applicant (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the Act on an ongoing basis.
Sections 29 and 30 make it clear that the intention of the NDIS is that once a person meets the access requirements, then subject to certain specific exceptions, the person will remain supported by the NDIS through their lifetime.
There are multiple reports relating to the Applicant's impairments. However, and as noted by Ms Sale, despite the chronicity of the Applicant’s pain, the available medical reports do not provide comments on the permanency of the Applicant's listed impairments, including the psychological impairments.[43] The Tribunal observes that Dr Ellis in his report of 6 February 2015 refers to an “overall combine whole person impairment of 73%. Maximal medical improvement can be considered to have been reached.”[44] However, without further clarification and given the age of the report, the Tribunal is not satisfied that this means that the impairments are permanent.
[43] Joint Hearing Tender Bundle, R8, 216.
[44] Joint Hearing Tender Bundle, A16, 38.
The evidence before the Tribunal shows that over the years, the Applicant has undergone extensive medical, surgical, and therapy interventions. He however continues to experience significant levels of pain in the neck, legs, and back.[45]
[45] Joint Hearing Tender Bundle, R8, 214.
In relation to the physical impairments, attributable to chronic pain and neuralgia, the evidence shows that:
·The Applicant currently manages his chronic pain using medication (Lyrica 300mg (150mg morning and 150mg evening), Celebrex (200mg), daily Panadeine Forte, two tablets every 4 to 6 hours, Panadol, Burofen and Voltaren for breakthrough pain.[46]
·Physiotherapy sessions are recommended to assist with alleviating the Applicant’s impairments and completing activities of daily living. Frequent treatments would allow for a guided return to activities of daily living such as shopping and housework.[47]
·The Applicant will benefit from physiotherapy in providing relief and managing symptoms to his chronic pain.[48]
·Dr Saunders advised that she would like to review the Applicant's tolerance to hydrotherapy.[49]
·Dr Nabarro referred the Applicant for repeat nerve conduction studies, however there is no evidence of results available.[50]
[46] Joint Hearing Tender Bundle, R8, 216.
[47] Joint Hearing Tender Bundle, A20, 44; Joint Hearing Tender Bundle, R3, 65.
[48] Joint Hearing Tender Bundle, A20, 44.
[49] Joint Hearing Tender Bundle, A14, 29.
[50] Joint Hearing Tender Bundle, A9, 24.
On the evidence, the Tribunal is satisfied that the Applicant has not exhausted treatment options potentially available for his physical impairments, or completed repeat nerve conduction studies, or further physiotherapy, or hydrotherapy which could potentially remedy his physical impairments.
In relation to the psychosocial impairments attributable to depression, PTSD and anxiety, the evidence demonstrates that the Applicant has received treatment including counselling from psychotherapist, Dr Youssef.[51]
[51] T3, R1, 35.
The Tribunal observes that Dr Youssef noted that there has been “minimal” progress.[52] Dr Youssef noted that based on her professional assessment of the Applicant and his present state of progress, she recommends further treatment, such as 24 hours of individual counselling over 12 months,[53] which would remedy the Applicant's impairments. However, there is no information about how many sessions the Applicant has in fact completed, or any non-compliance issues, or more details explanations about the ‘minimal’ impact the treatment has had on his psychosocial impairments.
[52] Joint Hearing Tender Bundle, A18, 41.
[53] Joint Hearing Tender Bundle, A18, 42.
The Applicant's current medications include Celebrex, Lyrica, Panadeine Forte, Panadol, and Cymbalta,[54] however no further and updated information has been provided in relation to how these medications are impacting his psychosocial impairments or whether any other medications were recommended, or indeed other options considered. The Tribunal is satisfied that there is insufficient evidence to demonstrate the efficacy of the Applicant's treatment to date, the reasons for any challenges in efficacy, and whether there are available effective and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairments.
[54] Joint Hearing Tender Bundle, R8, 216.
On the evidence, the Tribunal is not satisfied that the Applicant's psychosocial impairments are attributable to his conditions of depression, PTSD and anxiety.
The Tribunal is satisfied that the evidence does not support a finding that the Applicant’s physical and/or psychological impairments are permanent.
Therefore, the Tribunal finds that s 24(1)(b) is not met.
Section 24(1)(c) - Substantially reduced functional capacity
In relation to s 24(1)(c) of the Act, the Tribunal observes that r 5.8 of the Access Rules provides that in certain circumstances, a person will be taken to have substantially reduced functional capacity. These circumstances include where someone is unable to participate effectively or completely in an activity without assistive technology or home modifications.
Rule 5.8 of the Access Rules states that an impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities —communication, social interaction, learning, mobility, self-care, self-management – if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The Operational Guideline is relevant to this issue. Among other things, the Operational Guideline states:
Your impairment substantially reduces your functional capacity if you usually need disability specific supports to participate in or complete the above tasks [NDIS (Becoming a Participant) Rules rr 5.8(a), (c)].
These disability-specific supports include:
· a high level of support from other people, such as physical assistance, guidance, supervision or prompting [NDIS (Becoming a Participant) Rules r 5.8(b)].
· assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional [NDIS (Becoming a Participant) Rules r 5.8(a)].
Communication
Communication is described in the Operational Guideline as how the person speaks, writes, or uses sign language and gestures, to express themselves compared to other people their age.
Ms Sale conducted a functional assessment of the Applicant on 11 October 2022 and noted the following:
·The Applicant is “largely independent” in this domain.
·The Applicant presently receives some modest informal support from his wife, due to his psychological impairments.
·The level of assistance currently provided by the Applicant’s wife does not give rise to formal assistance in this domain.[55]
[55] Joint Hearing Tender Bundle, R8, 211, 223, 231.
The Tribunal is satisfied that whilst the Applicant may rely on his wife to assist him at times, he does not have a substantial reduction in functional capacity in relation to the activity of communication.
Social interaction
Social interaction is described in the Operational Guideline as including the making and keeping of friends, interacting with the community, behaving within limits accepted by others and coping with feelings and emotions in a social context.
This domain is principally about personal skills needed for social interaction, and only marginally about opportunities to exercise those skills, such as location or frequency.[56]
[56] Madelaine and National Disability Insurance Agency [2020] AATA 4025 [87]; Nika v National Disability Insurance Agency [2021] AATA 2127 [241].
Ms Sale noted the following:
·The Applicant requires prompting and encouragement from his wife to engage in social activities due to his psychological impairment.
·With his wife’s encouragement, and on a good day, the Applicant is able to attend his local café, drive his children to school, access the shops and watch his children play recreation sport.
·In the absence of his wife’s informal support, the Applicant is at risk of social isolation. If her support ceases, he is likely to completely withdraw himself from social activities. This would be detrimental to his health and well-being.
·If the wife’s support ceases, the provision of formal commercial support would be needed for transport and to accompany him to organised social activities outside the home, including those within his local community.[57]
[57] Joint Hearing Tender Bundle, R8, 231.
Mr Chiu noted that the Applicant had a grand final soccer match on the upcoming Sunday in a file note suggesting that the Applicant can socialise in the community.[58]
[58] Joint Hearing Tender Bundle, R5, 134.
The Tribunal is satisfied that there is evidence that the Applicant has a reduction of functional capacity in relation to social interaction, and that he finds it difficult to interact with others at times due to reduced motivation, withdrawal, low mood, dissociation, reduced concentration and attention.[59] However, the Tribunal is satisfied that the balance of the evidence demonstrates that the Applicant is capable of interacting with friends and the community, but at times needs encouragement.
[59] Joint Hearing Tender Bundle, R8, 240.
Accordingly, the Tribunal finds that the Applicant does not have a substantially reduced functional capacity in the domain of social interaction.
Learning
Learning is described in the Operational Guideline as including understanding and remembering information, learning new things, practicing, and using new skills.
Although Ms Sale reported that the Applicant said he had difficulty with learning new tasks, such as updating his phone, she considered that the Applicant was independent in the domain of learning.[60]
[60] Joint Hearing Tender Bundle, R8, 211, 224.
Dr Youssef reported that the goal of counselling would be for the Applicant to learn skills and techniques to manage his anxiety and depression,[61] indicating that the Applicant is capable of learning new skills.
[61] T4, R1, 40; T6, R1, 48.
The Tribunal is satisfied that that the Applicant does not have a substantially reduced functional capacity in this domain.
Mobility
The Operational Guideline describe mobility as how easily the person moves around their home and community, and how the person gets in and out of a bed or chair. Consideration is given to how the person gets out and about, with the use of arms and legs.
Rule 5.8(a) of the Access Rules deems a person to have a substantially reduced functional capacity in mobility if that person is unable to participate effectively or completely in the activity with assistive technology or equipment, other than commonly used items such as glasses.
Ms Sale assessed the Applicant as being able to mobilise independently, without the use of any aids.[62] She noted that the Applicant is able to walk up and down stairs by using the handrails, he can drive for up to 15 minutes,[63] and that he can complete transfers independently in the shower, bed, and lounge.[64] She noted that the Applicant is able to access the community independently, including driving himself to the supermarket, post office, and fruit shop.[65]
[62] Joint Hearing Tender Bundle, R8, 211, 224, 238.
[63] Joint Hearing Tender Bundle, R8, 237.
[64] Joint Hearing Tender Bundle, R8, 225.
[65] Joint Hearing Tender Bundle, R8, 225.
Although Ms Sale noted that the Applicant mobilises slowly and cautiously, she did not recommend any supports that could assist the Applicant him in mobilising.[66] Notably, Ms Sale commented that that the Applicant has become physically deconditioned and demonstrated self-limiting and fear avoidant behaviours and that prolonged periods of inactivity have led him to become more dependent on his family for support.[67]
[66] Joint Hearing Tender Bundle, R8, 225, 236.
[67] Joint Hearing Tender Bundle, R8, 239.
Ms Sale concluded that the Applicant did not require any assistance in this domain.[68]
[68] Joint Hearing Tender Bundle, R8, 211.
On the evidence, the Tribunal is satisfied that the Applicant can mobilise independently without assistive technology or equipment, and as such the Applicant does not have a substantially reduced functional capacity in this domain.
Self-care
Self-care is described in the Operational Guideline as meaning personal care, hygiene, grooming, eating, and drinking, and maintaining health.
In her report, Ms Sale noted that the Applicant can complete most self-care activities such as showering, dressing, grooming, and using the toilet independently.[69] She however noted that the Applicant has difficulty with some domestic activities such as house cleaning, heavy laundry and carrying heavy shopping items due to pain, fatigue, and cultural aspects.[70] The Applicant was able to complete the tasks listed in the Operational Guideline, however at times, in a modified manner.[71]
[69] Joint Hearing Tender Bundle, R8, 228-229.
[70] Joint Hearing Tender Bundle, R8, 229.
[71] Joint Hearing Tender Bundle, R8, 226-228.
Ms Sale recommended that the Applicant's safety and independence would be maximised by using some assistive equipment. She recommended the following:
·a long handle sponge to improve showering;
·a long handle toe washer to reduce the need for bending;
·grab rails in the shower to reduce the risk of falling;
·a grab rail in the toilet;
·a handy reacher to reduce the need for bending or squatting;
·a riser/recliner armchair to facilitate safe and ease with functional transfers;
·elastic shoelaces to improve independence;
·robotic vacuum cleaner to improve the Applicant’s contribution to cleaning duties; and
·automatic can opener, pan holder, stainless steel sink strainer, and a food preparation system to improve independence in meal preparation.[72]
[72] Joint Hearing Tender Bundle, R8, 233-234.
Ms Sale supported Occupational Therapy service provision on the basis that she had recommended assistive aids, equipment and modifications.[73] She noted that consideration needs to be given as to whether the nature of assistive equipment supported in her report is viewed as a standard household item or specialist equipment, and that items deemed specialist equipment should be formally prescribed by an OT service provision. She supported access to approximately 10 hours of OT services to formally assess, prescribe and demonstrate the safe use of specialist equipment to facilitate improved functional performance in activities of daily living.[74]
[73] Joint Hearing Tender Bundle, R8, 232.
[74] Joint Hearing Tender Bundle, R8, 232.
The Respondent contended and the Tribunal agrees that the recommended assistive equipment and aids are commonly used aids and equipment, which do not invoke the deeming provision of r 5.8(a) of the Access Rules.
Although the Applicant has some difficulties attending to his self-care activities due to his combined physical and psychological impairments, his capacity to perform the activities need to be viewed in the context not only of what the Applicant cannot do, but what he can do, even with limitations.
The Tribunal is satisfied that the evidence indicates that the Applicant can complete most selfcare tasks independently, and the noted restrictions do not give rise to a substantially reduced capacity in self-care.
Self-management
Self-management is described in the Operational Guidelines as how the person plans, makes decisions, and look after themselves. Consideration might be given to day-to-day tasks at home, how they solve problems, or manage their money. Consideration is given to the person’s mental or cognitive capacity to manage their life, not their physical ability to perform these tasks.

Ms Sale reported that the Applicant can call service providers to arrange his appointments, but prefers to have his wife present due to a combination of irritability, concentration, and lack of confidence. Ms Sale noted that the Applicant can pay the family bills including the rent and electricity, which he does every month on his mobile phone. Ms Sale noted that most day-to-day decision-making activities are done in consultation with the Applicant's wife. In relation to taking responsibility for himself in completing activities of daily living, Ms Sale reported that the Applicant is independent.[75]
[75] Joint Hearing Tender Bundle, R8, 230.
The Tribunal is satisfied that the evidence does not support a finding that the Applicant has a substantially reduced functional capacity in this domain.
Conclusion in relation to s 24(1)(c)
The Tribunal is satisfied on the evidence that the Applicant’s impairments do not give rise to substantially reduced functional capacity.
In light of the above, the Tribunal finds s 24(1)(c) of the Act is not met.
Section 24(1)(d) - Social or Economic Participation
There is no dispute, and the Tribunal finds that the Applicant meets s 24(1)(d) of the Act.
Section 24(1)(e) - Requirement of support for the person’s lifetime
Section 24(1)(e) of the Act requires a determination as to whether the Applicant is likely to require support under the NDIS for his lifetime. As the Tribunal was not satisfied that the Applicant’s impairments attributable to his conditions are permanent or that he has substantially reduced functional capacity, the Tribunal finds that he will not require assistance under the NDIS for his lifetime. Therefore, the Applicant does not meet the requirement in s 24(1)(e) of the Act.
Section 25 - Early Intervention Requirements
The Applicant will meet the early intervention requirements if he satisfies s 25(1)(a)-(c) and s 25(3) of the Act.
The Tribunal is satisfied that the evidence does not support a finding that the provision of early intervention supports are likely to benefit the Applicant by reducing his future needs for support, or that early intervention supports are likely to benefit the Applicant by achieving one or more of the outcomes listed in s 25(1)(c).
Moreover, the Tribunal is not satisfied that the evidence addresses the early intervention supports that the Applicant requires and the outcomes to be achieved in relation to his functional capacity, as required under s 25(1)(b). Therefore, the Tribunal finds that s 25 of the Act is not met.
CONCLUSION
In conclusion, the Tribunal finds that the Applicant does not meet ss 24(1)(b), (c) and (e), and the early intervention requirements in s 25 of the Act.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding one-hundred and twelve (112) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.

................................[SGD]...................................
Associate

Dated: 7 September 2023

[2023] AATA 2835

7 September 2023

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