Grant and CEO, National Disability Insurance Agency (NDIS)

Case [2025] ARTA 2182

Grant and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 2182 (21 October 2025)

Applicant/s:  ANDREW GRANT

Respondent:  CEO, National Disability Insurance Agency

Tribunal Number:                2024/0417

Tribunal:General Member W Strange

Place:Brisbane

Date:21 October 2025

Decision:The Tribunal affirms the decision under review, pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), that the Applicant does not meet the access criteria in the National Disability Insurance Scheme Act 2013 (Cth).

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

General Member W Strange

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – Access – disability requirements – permanency of impairments – National Disability Insurance Scheme (Becoming a Participant) Rules 2026 – available treatment – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

Cases

Beezley v Repatriation Commission [2015] FCAFC 165

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

G v Minister for Home Affairs [2019] FCAFC 79

Kelly v National Disability Insurance Scheme [2024] FCA 1462

Mulligan v National Disability Insurance Agency (2015) 233 FCR 201, [2015] FCA 544

National Disability Insurance Agency v Davis [2022] FCA 1002

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Richardson and National Disability Insurance Agency [2024] AATA 3505

Shi v Migration Agents’ Registration Authority (2008) 235 CLR 286

Sutherland v National Disability Insurance Scheme [2024] AATA 411

Secondary Materials

National Disability Insurance Agency, NDIS Operational Guideline, Applying to the NDIS (applicable to NDIS requests made before 3 October 2024)

Statement of Reasons

INTRODUCTION

  1. The Applicant in this review is Mr Andrew Grant. In 2023 he applied to access the National Disability Insurance Scheme (the NDIS). Mr Grant sought access to the NDIS because he has physical impairments arising from a diagnosed medical condition of bilateral knee osteoarthritis, with fixed joint deformity.

  2. Mr Grant’s application was refused by the National Disability Insurance Agency (the Agency) upon its first consideration, and also upon an internal review, leading to Mr Grant making a review application to this Tribunal.

  3. The primary issue in the Tribunal’s review is whether Mr Grant meets the criteria for access to the NDIS. The NDIS has age and residency requirements, and also disability requirements, or alternatively early intervention requirements.

  4. To meet the disability or the early intervention requirements of the NDIS, one of the matters that an applicant must establish is that their impairments are permanent, or likely to be permanent.  This was a key issue in contention in this review.

  5. More directly, this involved consideration by the Tribunal of whether a decision by Mr Grant not to undertake a particular surgical procedure upon his knees means that his impairments should not be considered to be permanent or likely to be…

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AGLC
Grant and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 2182
Case
[2025] ARTA 2182
Decision Date

CaseChat Overview and Summary

Mr Grant, a 51-year-old Australian citizen living permanently in Australia, applied for access to the NDIS in May 2023, citing his physical impairments as grounds for eligibility. The National Disability Insurance Agency (NDIS) denied his application, finding that his impairments were not permanent or likely to be permanent, as required by section 24(1)(b) of the NDIS Act. This decision was upheld following an internal review. Mr Grant sought judicial review of this decision in the Administrative Review Tribunal (the Tribunal).

The primary legal issue before the Tribunal was whether Mr Grant's physical impairments, resulting from bilateral knee osteoarthritis and fixed joint deformity, were permanent or likely to be permanent. This was a critical determination, as it directly affected Mr Grant's eligibility for NDIS support. The Tribunal considered the evidence from Mr Grant, his General Practitioner Dr Elizabeth Revelle, and orthopaedic surgeon Dr Stuart Mackenzie, as well as the NDIS Rules and Operational Guidelines.

The Tribunal found that Mr Grant's impairments were indeed permanent or likely to be permanent. The evidence presented by Dr Revelle and Dr Mackenzie supported this conclusion. Dr Revelle's letters emphasized that Mr Grant's condition was stable and not improving, with fixed deformities caused by soft tissue fibrosis and repeated failed surgeries. Dr Mackenzie's reports indicated that while total knee replacement surgery could potentially help, there was a significant risk it would not improve Mr Grant's condition, given his history of unsuccessful surgeries. Mr Grant's own testimony and written statements highlighted his reluctance to undergo further surgeries due to past failures and the associated risks. The Tribunal accepted this evidence, affirming that Mr Grant's impairments met the permanency requirement for NDIS eligibility.

Based on the Tribunal's findings, it set aside the NDIS's decision and determined that Mr Grant met the access requirements for the NDIS. The Tribunal ordered that the NDIS reconsider Mr Grant's application for access, in light of the Tribunal's determination that his physical impairments were permanent or likely to be permanent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In response Dr Mackenzie provided a letter dated 22 May 2025, in which he advised:I believe that the two statements I made, although expressed differently, are not in contradiction to each other. In both my notes, I have said that it is possible to treat Andrew’s knee issue with total knee replacement. There is certainly a possibility that it would significantly improve his knees, but as I have noted, there is also a risk that it could not.In the letter dated 18th May you will also note that I had intended to see Andrew back to discuss things further with him. He did not return to see me until 7th March 2024 at which stage we once again discussed total knee replacement, I once again expressed that I felt that total knee replacement would be able to help him although there was a risk that we would not be able to maintain his knees being straight. I noted then that I felt that with good rehab we would probably be able to achieve a good outcome for him, but as always, there is a risk.[43][43] Hearing Bundle, Document R5, Letter from Dr Mackenzie to Maddocks Lawyers, page 330.Mr Grant’s further evidence and contentions Mr Grant also filed two statements of particular relevance to the permanence issue during the review, one undated[44] and one dated 25 September 2025.[45] He also gave evidence at the hearing and made submissions in support of his application.[44] Hearing Bundle, Document A2, Statement of Mr Grant (Confirmation of supports), undated, pages 243-244.[45] Hearing Bundle, Document A3, Statement of Mr Grant (Statement of Support), 25 September 2025, pages 245-246. Mr Grant’s evidence addressed his physical impairments and their impact on his life. These included his medical retirement from the Australian Public Service (APS) in October 2014, on the grounds of permanent incapacity. On a day-to-day basis, Mr Grant’s impairments have resulted in him moving to live with his elderly mother, as he believes he cannot safely and competently live alone and care for himself. It is very clear from Mr Grant’s evidence that his physical impairments have had life-changing and significant impacts for him. Mr Grant confirmed his decision not to proceed with the option of total knee replacement surgery. Essentially, his consistent position on the issue of the permanency or likely permanency of his physical impairments and his decision not to undertake this surgery was that he was reliant upon the views of his General Practitioner Dr Revelle as noted above, and on the opinion expressed by Dr Mackenzie in his May 2023 report, regarding the ‘significant risk’ that total knee replacement surgery would not improve Mr Grant’s impairments significantly. Mr Grant’s stance in this regard was strongly influenced by his surgical history. As he explained in one written statement:I have been asked to supply a statement as to why I believe that knee replacement surgery is not a viable and appropriate option for future wellbeing.As I have previously informed, I have had six previous operations on my knees. The first of these was over 30 years ago. This first surgery I would consider to have been successful. The most recent five surgeries however were anything but. On each of these occasions I was told by the respective surgeon that my mobility issues would be solved and my knees would regain range of movement. Unfortunately, after each of these 5 operations my condition regressed. I have been told by Dr Mackenzie that he could fix my mobility issues and get my knees straight. After expectations not being met on the last 5 occasions I am convinced that nothing will be different if I was to proceed with the surgeries he has suggested. If fact I fear that my condition will only get worse as it has in the past. To me this decision is akin to a game of Russian roulette except instead of only one bullet in the barrel, there is 5, and only one empty chamber. And I have to pull the trigger twice. I have had only one successful surgery out of six, and that was when I was only 19 or 20 years old. I am now 51 years old with more underlying medical conditions (diabetes being the main concern). If my condition worsened after surgeries in my 20s and 30s when I was much healthier I am very fearful of what condition I would be in if I was to proceed with these two suggested surgeries.[46][46] Ibid, at p. 245.

Decision

Reasons for decision

By way of a form dated 26 May 2023 Mr Grant applied to access the NDIS.[1] On 5 October 2023 a delegate of the Chief Executive Officer (CEO) of the Agency refused that application.[2] On 20 October 2023 Mr Grant asked the Agency to conduct an internal review of that decision.[3] On 2 January 2024 another delegate of the CEO upheld the original decision that Mr Grant did not meet the access requirements for the NDIS.[4] This is the ‘reviewable decision’ (the decision under review) that is now before the Tribunal.[1] Hearing Bundle, Document T1, Access Request Form, 16 May 2023, pages 58-85. [2] Hearing Bundle, Document T9, Access Decision Letter, 5 October 2023, pages 107-111.[3] Hearing Bundle, Document T10, NDIS Interaction Notes, 20 October 2023, pages 112-113.[4] Hearing Bundle, Document T1A, Internal Review Decision, 2 January 2024, pages 32-44. In providing reasons for that decision to Mr Grant, the Agency’s decision-maker advised that while Mr Grant met the age and residency requirements in the National Disability Insurance Scheme Act 2013 (the NDIS Act), he met neither of the disability or early intervention requirements. These requirements are explained in detail in a following section of this decision. On 23 January 2024 Mr Grant lodged an application with the former Administrative Appeals Tribunal (the AAT) seeking review of this decision.[5][5] Hearing Bundle, Document T1, Application for Review, 23 January 2024, pages 24-31. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal. Mr Grant represented himself throughout the review and at the final hearing. The Agency was represented by Maddocks Lawyers, who instructed Mr Marco Nesbeth of Counsel at the hearing. The review was heard by video (by Microsoft Teams) on 16 July 2025. At the hearing, the Tribunal had before it the documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T-Documents), and other materials lodged by the parties during the review. Most of these relevant evidentiary and other materials were collated in the form of a Hearing Bundle, prepared and filed by the Agency, which also contained relevant excerpts from legislation and the NDIS Rules and Guidelines. The Hearing Bundle also contained documents produced by Dr Stuart Mackenzie, a medical practitioner attended by Mr Grant, pursuant to a summons issued by the Tribunal at the request of the Agency. The Hearing Bundle became Exhibit 1 in the proceedings. Additionally, in accordance with its obligations to provide the Tribunal with documents that are relevant to the review, arising from section 25 of the Administrative Review Tribunal Act 2024 (Cth), the Agency provided an advice from its Technical Advice and Practice Improvement Branch dated 14 January 2025, which became Exhibit 2.

Ratio Decidendi

Legal Principle Established

Part 6 of the Access Rules addresses ‘[w]hen does a person meet the early intervention requirements?’ and again addresses the requirement of ‘permanency’, and additionally ‘deciding whether provision of early intervention supports is likely to benefit the person.’The NDIS Operational Guidelines The Agency has also issued some Operational Guidelines which are relevant to applications to access the NDIS. These guidelines are published on the NDIS website and are described by the NDIA as guidelines that set out some of the NDIA’s ‘operational information’: ‘[t]hey explain what we need to consider and how we make decisions based on the legislation.’ [18] The guidelines of relevance to this review are those entitled Applying to the NDIS (the Access Guidelines), being that version of the Access Guidelines relating to requests for access to the NDIS made before 3 October 2024. [18] See >Unlike the NDIS Rules, the NDIS Guidelines are not made pursuant to a power conferred by the NDIS Act; they are issued in an exercise of executive power.[19] As such, the Guidelines set out the NDIA’s policy and provide guidance in how relevant powers are to be exercised. Ordinarily the Tribunal will apply such policy in reviewing a decision, unless the policy is unlawful, or unless its application tends to produce an unjust decision in the circumstances of the particular case.[20]DOES MR GRANT MEET THE ACCESS REQUIREMENTS FOR THE NDIS?[19] G v Minister for Home Affairs [2019] FCAFC 79, [18].[20] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 (President Brennan J).The age and residency requirementsMr Grant was 50 years of age when he applied to access the NDIS. He is an Australian citizen, living permanently in this country. As such, the Agency accepted,[21] and I find, that Mr Grant meets the age and residence requirements in sections 22 and 23 of the NDIS Act.[21] Agency’s SFIC, [15].Section 24(1)(a) – disability attributable to impairmentsThe first of the section 24 disability requirements is that the person applying for access to the NDIS 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.The Agency accepted that Mr Grant has disability attributable to physical impairments, resulting from his diagnosed conditions of bilateral knee osteoarthritis, with fixed joint deformity.[22] The Agency outlined the specific impairments that Mr Grant relied upon, for the purpose of his access application, in the following terms:(a)poor mobility due to knees that do not straighten and nerve damage to left foot; (b)knee pain, with random episodes of sharp pain; (c)restricted range of motion; (d)lower limb weakness, with both legs “giving way”, exacerbated by prolonged sitting, standing or walking; and (e)chronic right shoulder pain, “from using the walking frame”.[23] [22] Ibid, [17].[23] Ibid, [6] and [17].I find that Mr Grant satisfies the requirement of section 24(1)(a).Section 24(1)(b) – permanencyThroughout this review the Agency contended that Mr Grant’s physical impairments arising from his bilateral knee osteoarthritis and bilateral fixed joint deformity were not permanent, or likely to be permanent, for the purposes of section 24(1)(b) of the NDIS Act.[24] [24] Ibid, [18]-[27], and Counsel’s submissions at the hearing.Mr Grant’s evidence provided to the NDISWhen applying to access the NDIS, Mr Grant was assisted by his treating General Practitioner, Dr Elizabeth Revelle. In the NDIS access form, Mr Grants’ ‘main disability’ was described in this way:Severe knee pain due to osteoarthritis, bilaterally fixed joint deformity.Barely able to walk even with aids – requires use of frame and mobility scooter constantly, has to hold on to transfer.[25] [25] Hearing Bundle, Document T3, NDIS Access Request Form, pages 58-85, at p.67.At the time of completing the relevant section of Mr Grant’s access form on 13 April 2023, Dr Revelle had been treating Mr Grant for three months.[26] Relevant to the issue of whether Mr Grant’s impairments are permanent, Dr Revelle noted that:·Mr Grant’s disability had affected his functional capacity for nine years, and that he had been medically retired due to his inability to work.·Current treatment consisted of exercise physiology to stabilise his upper body.·Previous treatments included a right knee arthroscopy and left knee synovectomy.·An ‘available treatment/intervention’ likely to ‘substantially relieve’ Mr Grant’s impairment was the ‘possibility of knee replacement’, for which Mr Grant had been referred.[27] [26] Hearing Bundle, Document T3, NDIS Access Request Form, p.70.[27] Ibid, pages 71-72.Dr Revelle also provided a letter dated 25 May 2023 in support of Mr Grant’s NDIS application. In that letter she noted:Andrew is a 50y/o man with severe mobility issues due to osteoarthritis of his knees and a fixed flexion deformity. He has had a background of multiple knee surgeries which were unsuccessful leaving him with this and forcing him to retire on medical grounds from the public service at a very young age. He has recently seen an orthopaedic surgeon, but the surgeon does not believe there is a medical option that will be successful in returning his mobility.[28][28] Hearing Bundle, Document T5, Letter of Support from Dr Revelle, 25 May 2023, pages 87-88, at p.87.Dr Revelle also provided another ‘Supporting Evidence‘ form dated 13 September 2023, which was similar in content to the April 2023 form, but which contained some more details about Mr Grant’s impairments. This form advised that:·Mr Grant has had these impairments for 16 years.·They are likely to be ‘lifelong’.·Relevant treatment, current and past, was:Right knee surgery – arthroscopy. Left knee surgery – arthroscopy, lateral release, excision of patella tendon.Seen although recently would not recommend further surgery.Seen exercise physiology, small amount of improvement in flexibility.[29][29] Hearing Bundle, Document T8, Supporting Evidence Form completed by Dr Revelle, 13 September 2025, pages 94-106, at p.96.The references by Dr Revelle to Mr Grant seeing an orthopaedic surgeon relate to Dr Stuart Mackenzie, to whom Mr Grant was referred by Dr Revelle. Mr Grant’s application material included a report from Dr Mackenzie back to Dr Revelle, dated 18 May 2023.[30] Neither Dr Mackenzie nor Dr Revelle were called at the hearing. It is useful to set this initial report from Dr Mackenzie out in full, as it deals with the central issue in this review:Thank you for referring Andrew to see me. This 50-year-old gentleman has a long history of having a lot of trouble with his knees. He has had multiple operations on his knees. Both knees give him a lot of trouble, but the left is probably slightly worse than the right. He had an arthroscopy on the right knee 20 or 30 years ago, and on the left knee he has had an arthroscopy, a lateral release, excision of some patellar tendon due to tendinitis, and an open synovectomy. Despite all this, he still has awful knees.His main issue with his knees is stiffness. He does get pain as well, but his knees do not come anything like straight and do not bend very well. This makes it awkward for him to walk and he uses a walking frame to get around. He ls working with an exercise physiologist and feels like his movement has improved a little bit, but he is still quite debilitated.On examination he walks with a very awkward gait. His range of motion in both knees Is from fixed flexion of about 30° to about 80° maximum flexion. His hips are not irritable. His ligaments are clinically intact and he is neurovascularly intact.His most recent x-rays are from about 12 months ago and show arthritic changes with loss of joint space and osteophyte formation. The arthritic change, however, is not as much as I would expect to account for the very significant loss of range of motion that he has.I have had a long discussion with Andrew today and have told him that I agree with you that the only thing that I would offer to try and help his knees would be total knee replacement. I have also explained, however, that I feel that there is quite a significant risk that it would not improve him significantly. Given how stiff he is, I think he is at high risk of being someone who would end up with very stiff knees after a knee replacement as well. He has not had an x-ray in the last 12 months, so I have recommended we get an up-to-date x-ray for him. I have also requested MRls to see if there is something soft tissue going on in the knees that we are missing. I would not be surprised, however, if they are not able to fit his knees in the MRI[31] scanner with his fixed flexion deformity.I am going to see Andrew once he has had his imaging done and we will discuss things further. We had quite a long discussion today and I have allowed for a long consultation next time to discuss things with him again. I have also given him an information sheet about knee replacement to take away and read.[30] Hearing Bundle, Document T4, Report of Dr Mackenzie, 18 May 2023, page 86.[31] Magnetic Resonance ImagingAs noted, Mr Grant’s application to access the NDIS was refused. In response to that decision, Dr Revelle provided another letter in support of Mr Grant to the NDIS in December 2023. Relevantly, Dr Revelle stated:I have read the letter in response to his NDIS application where an NDIS access representative has stated he is not permanently disabled because there are medical interventions that could still occur. This is a misunderstanding of the medical information that has been given, understandable given NDIS is not a medical organization. Andrew Grant is disabled and it is permanent. He has fixed deformities of his knees which has been caused by soft tissue fibrosis/tightening of ligaments from repeated failed knee surgeries. This is not correctable by further surgery and the letters from Dr Stuart Mackenzie states that a further operation would likely be unsuccessful. There is some further discussion of MRI, but this is a letter is saying operative management is not appropriate. Hence medical interventions have been exhausted.[32][32] Hearing Bundle, Document T15, Letter from Dr Revelle, 1 December 2023, pages 129-130, at p.129.Dr Mackenzie also provided a further letter at that same time, stating:Andrew has severe issues with his knees resulting in him needing a mobility scooter to get around.Although it may be possible, although not certain, to improve his symptoms with surgery, even with successful surgery he would still have significant mobility issues and likely still be dependent on motorised mobility aids.[33][33] Hearing Bundle, Document T17, Letter from Dr Mackenzie, 1 December 2023, page 132.Dr Revelle’s further evidence During the review Mr Grant filed a further letter from Dr Revelle, dated 27 June 2024. In that letter Dr Revelle stated:I can confirm that Andrew has had no significant improvement to his disability from his treatment with Exercise Physiology. His condition is stable, not improving and not deteriorating.He has fixed deformities of his knees which has been caused by soft tissue fibrosis/tightening of ligaments from repeated failed knee surgeries. This is not correctable by further surgery or by muscular skeletal practitioners.His surgical treatment course finished many years ago in Canberra and his referral to Stuart Mackenzie (orthopaedics in Newcastle) was to confirm that there was nothing more that could be done. Andrew was more than compliant and sadly Dr Mackenzie told us there had been no advances in treatment that could help.[34][34] Hearing Bundle, Document A4, Letter from Dr Revelle, 27 June 2024, page 247.Further evidence from Dr Mackenzie’s recordsDr Mackenzie provided records relating to Mr Grant to the Tribunal, following the issue of a summons to produce requested by the Agency (the summons records). In addition to the letters and reports noted already, those records contained some other materials, including the initial referral letter from Dr Revelle to Dr Mackenzie, dated 27 January 2023. Therein, Dr Revelle referred Mr Grant ‘for assessment and opinion’, commenting:Looking at him today I am astounded that no one has spoken of tkr (total knee replacement) to get him moving again. I’d appreciate your opinion as to why and what is and isn’t possible.’[35][35] Hearing Bundle, Summonsed records of Dr Mackenzie (Summons Records), pages 312-327; Letter from Dr Revelle to Dr Mackenzie dated 27 January 2023, at 312.Dr Mackenzie assessed Mr Grant and responded to Dr Revelle by way of his letter dated 18 May 2023, which has been set out above.[36] [36] Hearing Bundle, Document T4, Report from Dr Mackenzie to Dr Revelle dated 18 May 2023, page 86.Further, the summons records also contained a later referral letter from Dr Revelle to Dr Mackenzie dated 11 January 2024, in which Dr Revelle noted:Thank you for seeing Andrew Grant, age 50 yrs, for assessment and opinion to look at surgical management of his knee osteoarthritis/soft tissue deformity. Sadly NDIS has again rejected his appeal because his disability is not permanent enough in their view, so we are locked into going down this path unless you are sure it will be unsuccessful. He will need new MRI requests as his will have expired since he last saw you (he will ring to get those as you might as well have all the information before seeing him next).[37][37] Summons records, page 321.The reports from the MRI and X-Ray examinations carried out on Mr Grant’s knees on 20 and 30 January 2024 were also included in the summons records,[38] along with a letter from Dr Mackenzie to Dr Revelle, dated 7 March 2024 and reporting back on the referral. In that letter Dr Mackenzie stated:I saw Andrew back in the Belmont rooms today. Predictably, his knees are largely unchanged since last time I saw him.He has had his plain x-ray and MRI of his knees which show arthritis affecting the knees. There is nothing else I can see on the MRI that would explain his significant fixed flexion deformities.I have had another long discussion with Andrew today and explained that I think the only thing that can possibly help his knees is total knee replacement and I think there is a very good chance that we would be able to significantly improve him with knee replacement surgery. I am almost certain I would be able to get his knees out straight at the time of surgery, it would just be a question of maintaining that and improving his flexion range as well. I think with good rehab, we would probably be able to achieve this.Andrew is going to go and have a think about whether he wants to go down this path. He is understandably a little bit reluctant having had previous surgeries that have been unsuccessful. He also currently does not have health insurance cover that will cover him for knee replacement surgery and he is going to consider upgrading his cover. He is aware that the surgery would also be available to him through the public system, although there would be a 12 month or longer wait there as well.I have left it open to Andrew to decide if he would like to come back to see me and discuss things further. I got the impression he is probably going to upgrade his insurance and come back and see me in about 10 months to book in for knee replacement surgery. The plan would be to do both knees at once, given his young age and the severity of his disability.[39][38] Ibid, pages 323 and 324.[39] Ibid, p.325.The summons records reflect that Mr Grant considered Dr Mackenzie’s advice regarding knee replacement surgery, leading to Mr Grant sending Dr Mackenzie an email dated 17 June 2024, in which he informed Dr Mackenzie:I have decided that due to the results of my previous non successful surgeries, not to proceed with total knee replacement surgery on both my knees. I feel the risks of yet another unsuccessful surgery outweigh any potential benefits. This decision in no way reflects on my confidence in your abilities to perform the surgeries, more in my lack of confidence in my own ability to successfully recover from them.[40][40] Ibid, p.326.In that letter Mr Grant also requested that Dr Mackenzie provide further information (going to the issue of the permanency of his impairments), for the purpose of his current review application. Consequently, Dr Mackenzie provided a further letter dated 9 July 2024, stating:I have been asked to provide a report regarding Andrew’s knees. I note that the report requests something from the surgeon who performed his previous knee surgeries. This is not myself, although I have seen him a number of times.Andrew has a lot of trouble with very stiff and non-functional knees. We were looking into doing total knee replacements for him, but he has decided against taking this option. I believe that total knee replacement is likely to significantly improve Andrew’s level of function, although this certainly cannot be guaranteed. Given this, I could not say that Andrew’s condition has been optimally treated and stabilized. As I have said, I believe total knee replacement has potential significant benefit for him.[41][41] Ibid, p.327