GWMR and National Disability Insurance Agency (NDIS)
[2025] ARTA 1580
•31 August 2025
GWMR and National Disability Insurance Agency (NDIS) [2025] ARTA 1580 (31 August 2025)
Applicant:GWMR
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/7776
Tribunal:General Member I Selley
Place:Adelaide
Date:31 August 2025
Decision:The Tribunal affirms the decision under review
Statement made on 31 August 2025 at 9:18pm
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether access criteria under s21 of the NDIS Act met – whether disability requirements under s 24 of the NDIS Act met - neurological impairment – whether impairments are, or likely to be permanent - whether impairment results in substantially reduced functional capacity –- whether early intervention requirements under section 25 of the NDIS Act met – whether the provision of early intervention supports is likely to benefit the person - decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) - s129
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)Secondary Materials
National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 14 October 2024, pre-legislation changes)
Administrative Review Tribunal, Guideline on persons giving expert and opinion evidence, December 2024
Administrative Review Tribunal, Common Procedures Practice Direction, April 2025Cases
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634Beezley v Repatriation Commission [2015] FCAFC
Foster v National Disability Insurance Agency [2025] ARTA 718
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Garcia Albiol and NDIA [2024] AATA 496G v Minister for Immigration and Border Protection [2018] FCA 1229
2010120 (Refugee) [2025] ARTA 550 (13 May 2025)Statement of Reasons
INTRODUCTION
The issue for the Tribunal’s determination is whether the Applicant should be granted access as a participant to the National Disability Insurance Scheme (NDIS) and therefore be able to access NDIS supports.
In October 2023, the National Disability Insurance Agency (the Agency) determined to refuse the Applicant’s access to the NDIS, and she applied to the Administrative Appeals Tribunal to independently review the merits of the Agency’s decision. In October 2024, the Administrative Review Tribunal (ART) was established to replace the AAT and the AAT was abolished. The Applicant’s AAT Application was automatically transferred to the ART[1].
[1] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024
The Applicant is in her early 30s and resides with her husband and children[2]. Her professions include government and community leadership[3]. She is legally qualified. In 2023, she was diagnosed with Autism Spectrum Disorder (ASD) Level 1[4] which impairs her social responsiveness and sensory processing[5].
[2] Joint Tender Bundle (JTB), page 57
[3] JTB, page 069; JTB page 52-53
[4] JTB, page 57
[5] JTB, page3 15, 54-55, 59
This Tribunal decision is about whether the impairment or impairments that the Applicant lives with are of such nature and extent that she meets either the disability requirements in section 24 of the National Disability Insurance Scheme Act 2013 (the Act) or the early intervention requirements in section 25 of the Act. It is accepted she meets the age and residence requirements in sections 22 and 23 of the Act.
For the reasons set out below, the Tribunal has determined the Applicant has a disability attributable to a neurological impairment that whist permanent, does not result in substantially reduced functional capacity in any one of the six activity areas in section 24(1)(c) of the Act and therefore she does not meet the disability requirements. The Tribunal has also determined that the Applicant does not satisfy the requirement in section 25(1)(b) that early intervention supports be likely to benefit her by reducing her future disability supports needs, and therefore the early intervention requirements are not met. For these reasons the Tribunal has determined the Applicant does not meet the access criteria in section 21 of the Act and the decision under review is affirmed.
LEGISLATION AND POLICY
The Access Criteria
To become a participant in the NDIS, the Applicant must meet the access criteria in section 21 of the Act. This requires her to meet both the age and residence requirements in sections 22 and 23, and then either of the disability requirements detailed in section 24 or the early intervention requirements in section 25 of the Act.
The Disability and Early Intervention Requirements
Sections 24 and 25 of the Act were amended after the Applicant made the AAT application, however, those changes apply only to access requests made on or after 3 October 2024[6]. The Tribunal therefore applies the disability and early intervention requirements as they were immediately prior to those amendments and as quoted below.
[6] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) 2024 (the Amending Act), Item 126(1) of Part 3 of Schedule 1
In summary, a person will meet the disability requirements if they have a disability that is attributable to an impairment that is permanent, or likely to be permanent, and that results in substantially reduced functional capacity[7]. Section 24 of the Act states:
[7] NDIS Access Rules, paragraph 2.5(a)
(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.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require NDIS supports under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
The early intervention requirements may provide an alternative basis for meeting the access criteria where the person’s permanent impairments do not result in substantially reduced functional capacity. The early intervention requirements consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity[8]. Early intervention is envisaged to be particularly but not exclusively applicable to children.
[8] NDIS Access Rules, paragraph 2.5(b)
Subsections 25(1) and 25(1A) relevantly state:
(1)A person meets the early intervention requirements if:
(a)the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent;
(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; social interaction;
(iii) is a child who has developmentaldelay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or;
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
NDIS Access Rules
The Tribunal must apply the mandatory instructions for interpreting sections 24 and 25 in the NDIS (Becoming a Participant) Rules 2016 (the Access Rules). The Access Rules set out the circumstances in which, and the criteria the Tribunal must apply in assessing whether:
·impairments are or are likely to be permanent
·any permanent impairments result in substantially reduced functional capacity in undertaking one or more activities; and
·provision of early intervention supports is likely to benefit the person.
Judicial interpretation of the Access Criteria
The Tribunal must apply the relevant jurisprudence of the courts in access matters.
The courts have said that the purpose of the access criteria and section 24(1) is to impose a series of “components and thresholds” [9] to gaining access to the NDIS.
[9] Mulligan v NDIA [2015] FCA 544, at [18] (Mulligan)
Given the Applicant must satisfy every component in section 24(1), the Tribunal’s approach is to consider whether each is in turn is satisfied before progressing to the next. If she fails to satisfy one, then she cannot meet the disability requirements, and the Tribunal must turn its attention to whether she meets the early intervention requirements. The components of section 25 are also cumulative, and each must in turn be satisfied.
The courts emphasise that the central concept in an access matter is “impairment”[10]. It is not the name of a person’s disability or their medical diagnoses or conditions[11]. Impairment involves the loss of or damage to a physical, sensory or mental function[12].
[10] National Disability Insurance Agency v Davis [2022] FCA 1003 at [69] (Davis)
[11] Davis, at [69]
[12] Mulligan, at [51]
The courts have said “permanent” means “enduring”[13]. An impairment may endure even if it fluctuates, or may fluctuate during a person‘s lifetime, in its intensity and impact[14].
[13] Davis, at [85]
[14] Davis, at [82]
The Tribunal must engage in a fact-finding exercise and examine the evidence of medical practitioners, clinicians, an applicant and their supports to determine the permanency and severity of the applicant’s impairments and the impact on their ability to undertake specified, multi-faceted life activities[15].
[15] Davis, at [82]
When considering whether an impairment or impairments result in substantially reduced functional capacity, the Tribunal must make, with a high degree of precision, a functional, practical assessment of what the Applicant can and cannot do.[16] The Tribunal must assess the degree to which she can participate in the activity[17]. That assessment involves consideration of the full range of tasks and actions that comprise each of the life activity areas[18]. It would be incorrect to ask this question only in relation to one or a few of such tasks[19]. It would also be incorrect to focus on what the person does not do, as opposed to what they cannot do[20].
[16] Mulligan, at [56].
[17] Foster, at [88]
[18] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), [64].
[19] Foster, at [64]-[66]
[20] Mulligan, at [55]-[56]
The term ‘substantially’ in this context carriers a “high threshold”[21]. Whether this high threshold is met should be considered with reference to the purposes of the NDIS, including that it was not intended to provide support to every person with disability, and ensuring the scheme is financially sustainable[22]. The NDIS has as its target group limited sub-categories of the total population of persons with disability in Australia[23].
[21] Garcia Albiol and NDIA [2024] AATA 496
[22] Foster, at [76]
[23] Foster and the NDIA [2025] ARTA 718
Regarding matters of procedure and evidence, it is for the Applicant to provide the Tribunal with sufficient evidence and information to persuade it that she meets the access criteria[24], and for the Agency to assist the Tribunal to make the correct or preferable decision[25].
[24] Beezley v Repatriation Commission (2015) FCAFC 165 at [68]
[25] Section 56(1), ART Act
Relevant jurisprudence concerning the Access Rules is discussed below.
NDIS Guidelines
The Tribunal must take into consideration[26], but is not bound by[27], the Agency’s current policy guidance contained in NDIS – Applying to the NDIS Guideline (the Access Guideline). The Operational Guidelines are regularly updated and those relating to access requests received by the Agency before 3 October 2024 are relevant to this matter[28].
[26] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
[27] G v Minister for Immigration and Border Protection, per Mortimer J [2018] FCA 1229 at [171]
[28] Applying to the NDIS | NDIS
The Access Guideline states that a person diagnosed by “a specialist multi-disciplinary team, paediatrician, psychiatrist or clinical psychologist experience in the assessment of Pervasive Developmental Disorders and assessed using the current Diagnostic and Statistical Manual of Mental Disorders (DSM-V) diagnostic criteria” Autism Level 2 or Level 3[29] is likely to meet the disability requirements. That policy position does not apply, however, where the diagnosis is ASDL1.
[29] List A: Conditions that are likely to meet the disability requirements, page 31
THE APPLICATION AND DECISION UNDER REVIEW
In May or June 2023, the Applicant made a request to the Agency to access the NDIS (the access request). In June 2023, the Agency requested further information from the Applicant’s treating professional[30] and the Applicant responded in July 2023.
[30] page 78 of T-Docs
On 31 July 2023, the Agency refused the access request[31]. In this first decision, the Agency appeared to accept the Applicant had a disability attributable to an impairment and the impairment is permanent[32]. The Agency did not accept, however, that the Applicant’s permanent impairment substantially reduces her functional capacity[33]. It did also not accept early intervention supports were likely to benefit her as no relevant information was provided.
[31] page 16 of T-Docs
[32] page 17 of T-Docs
[33] page 18 of T-Docs
The Applicant then applied to the Agency for an internal review of that decision, on 9 August 2023[34], and on 9 October 2023, the Agency again determined not to grant her access (the internal review decision)[35]. The internal review decision is the decision that is under review by the Tribunal.
[34] page 89 of T-Docs
[35] page 38 of T-Docs
In the internal review decision, the Agency did not accept the Applicant had a disability attributable to an impairment and therefore did not go on to consider the remaining criteria in section 24 of the Act. The Agency reasoned that the Applicant had not undergone a complete diagnostic Autism assessment by an appropriately qualified specialist using the current Diagnostic and Statistical Manual of Mental Disorders (DSV-M)[36].
[36] page 42 of T-Docs
On 22 October 2023, the Applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the internal review decision. Her application had been progressing unsuccessfully through alternative dispute resolution until November 2024, when it was constituted to me for hearing and final determination. The Tribunal is satisfied the application to the AAT is valid and the ART has jurisdiction to determine it[37].
[37] Section 25 of the Administrative Appeals Tribunal Act 1975 and section 103 NDIS Act together gave the AAT the power to review an internal review decision by the Agency about access
EVIDENCE, SUBMISSIONS AND PROCEDURE
On 24 December 2024, the Tribunal listed the proceeding for a final hearing, on 27 and 28 March 2025. On 6 December 2024 and on 24 December 2024, in response to the Tribunal listing notice, the Applicant requested a determination by the Tribunal without a hearing taking place. The Applicant also stated, without reasons, her objection to Ms A, the Agency’s independent expert in the proceeding, appearing as a witness in any hearing. On 9 January 2025, the Agency provided their consent to forgo a hearing subject to the Applicant’s agreement to Ms A’s report being included in the evidence before the Tribunal. On 14 January 2025, the Applicant confirmed her request and consent to Ms A’s report being submitted into evidence.
Section 106(1) and (2) of the ART Act provides for the possibility that the Tribunal can determine a two-party proceeding such as this proceeding without holding the hearing upon the satisfaction of two pre-conditions. Firstly, it must have the consent of both parties: section 106(2)(a). Secondly, it must appear to the Tribunal the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding: section 106(2)(b).
As to the first pre-condition, the Tribunal is satisfied that both parties have been unambiguous in their informed consent and section 106(2)(a) is met.
As to the second pre-condition, the Guidance and Appeals Panel of the Tribunal confirmed in the decision of BXFHJ and Minister for Immigration and Multicultural Affairs[38], it does not require the Tribunal to be satisfied it can reach a decision in the Applicant’s favour[39]. The Tribunal may find there is sufficient information before it to enable it to adequately determine the issues in the proceeding, yet still determine there is insufficient evidence to substantiate the applicant’s claims[40].
[38] 2010120 (Refugee) [2025] ARTA 550 (13 May 2025)
[39] At [60]
[40] At [60]
It must appear to the Tribunal that it can determine the relevant issues it must resolve to determine the proceeding[41], being in this case whether the Applicant meets the access criteria in section 21 of the Act.
[41] At [41]
To be so satisfied, and that procedural fairness would be afforded to both parties, the Tribunal required the parties to file the evidence and submissions relied on in the matter. These were received by the Tribunal on 5 March 2025. Upon review of those materials the Tribunal confirmed with the parties on 11 March 2025 of its satisfaction that the requirement in section 106(2) was met. The hearing was accordingly vacated.
The Tribunal has considered all the documents in the parties’ Joint Tender Bundle (JTB) of documents and the Tribunal documents (T-Docs). The T-Docs comprise the relevant documents held by the Agency at the time the Applicant made the Tribunal Application including the internal review decision and the documents the Agency relied on in making it.
In November 2023, the AAT made a confidentiality order including the allocation to the Applicant of a pseudonym. Although section 71(2)(b) of the ART Act provides for a general principle that it is desirable evidence given before the Tribunal is made available to the public[42], the Tribunal is bound by the order of the AAT. Accordingly, the Applicant’s name is not mentioned in this decision record and her professionals and supports are referred to by their initials only.
[42] Section 71, ART Act
The Applicant relies on her statement of lived experience (undated) and a statement from her brother dated 31 July 2024.
The medical and clinical reports and records she relies upon include three reports by psychologist, BP (the BP Reports):
·Psychology Assessment Report, May 2023 (BP’s 2023 Report)
·Supplementary Assessment Report, March 2024 (BP’s March 2024 Report)
·Response to Agency’s questions, June 2024 (BP’s June 2024 Report)
The Tribunal notes that BP’s 2023 Report was provided by the Applicant to the Agency in support of her access and internal review requests. BP’s two 2024 reports are the only expert reports prepared and provided by the Applicant for the purposes of this proceeding. BP confirms they were engaged for the sole purpose of assessment of ASD. They have not provided treatment to the Applicant. The BP reports provide detailed findings and reasons for their ASD diagnosis and expert opinion. They provide limited opinion on the impact of the Applicant’s impairment on her functional capacity.
Ms A is the occupational therapist who conducted an independent functional assessment of the Applicant at the Agency’s instruction[43]. Ms A prepared a report dated 21 October 2024 following her assessment on 8 October 2024[44].
[43] JTB, page 1
[44] JTB, page 263
In accordance with the Tribunal’s directions, the Agency provided a Statement of Facts Issues and Contentions (SOFIC) outlining the key arguments in its case dated 7 February 2025[45]. The Applicant also provided written submissions, dated 26 February 2025[46].
[45] JTB, page 70
[46] JTB, page 147
The Tribunal notes the Applicant is not legally represented in the proceeding. The Agency is represented by Moray and Agnew Lawyers and its SOFIC is settled by Mathew Kenneally of counsel.
THE PARTIES’ POSITIONS
The Applicant contends she meets the disability requirements. She does not expressly make contentions to meet the early intervention requirements however her GP, Dr J, recommends the provision of early intervention support in their Supporting Evidence Form to the internal review request[47].
[47] page 25 of the T-Docs
The Agency contends the issues can be distilled to whether the Applicant meets the criteria in section 24(1)(c) and section 24(1)(e). It contends the evidence establishes the Applicant satisfies sections 24(1)(a) and (b). It contends there is no evidence to support the conclusion the Applicant meets the requirements in section 25.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 24(1)(a): Does the Applicant have a disability that is attributable to an impairment?
As noted above, it is necessary to define the Applicant’s impairment with some precision.
The Applicant claims to have impairment or impairments arising from the neurodevelopmental condition of Autism Spectrum Disorder Level 1 (ASDL1). The Agency does not dispute the clinical diagnosis of ASDL1[48] or its resultant neurological impairment.
[48] JTB, page 1
The Tribunal is satisfied, based on the reports of BP, that the Applicant was diagnosed in May 2023 with ASDL1[49] in accordance with the DSM-V[50]. It accepts the Applicant does not have an intellectual disability[51].
[49] JTB, page 57
[50] JTB, page 50
[51] JTB, page 57
The Tribunal finds the Applicant has a neurological impairment characterised by symptoms of:
· impaired social-emotional reciprocity arising from difficulties processing and responding to complex social cues in social interactions[52]: impaired social-emotional reciprocity
· sensory sensitivities or sensory seeking and aversion behaviours[53]: sensory sensitivity
· repetitive and restricted patterns of behaviour, interests or activities[54]: repetitive behaviours.
[52] JTB, page 57, 63
[53] JTB, page 53, 63
[54] JTB, page 57, 63
Conclusions on disability
The Tribunal is satisfied the Applicant has a disability attributable to a neurological impairment.
Accordingly, the Applicant satisfies the disability criteria in section 24(1)(a) of the Act.
The next question is whether these impairments are permanent.
Section 24(1)(b): Are the Applicant’s impairments permanent or likely to be permanent?
Overview and preliminary considerations
Access Rules 5.4 to 5.7 set out the mandatory criteria for determining permanency of an impairment.
·5.4 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 the impairment.
·5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
·5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
·5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
The courts have said that rules, 5.4 and 5.6 in practice prescribe mandatory exclusionary circumstances which, if met, require the Tribunal to conclude that the impairment is not permanent[55]. Rule 5.7 is a positive, deeming provision that requires the Tribunal to find the impairment is permanent if satisfied the terms of the provision are met. Rule 5.5 develops the principle in section 24(2) of the Act. It focuses on the impact of the impairment, rather than the impairment alone, and envisages impairment may be permanent even if its impact can be improved, or its negative impact diminished. There is no information before the Tribunal the Applicant’s neurological impairment is degenerative. The Tribunal understands generally that the impacts of ASDL1 may fluctuate but has no compelling information in that regard that is specific to the Applicant.
[55] Davis, at [73]-[75]
As to the adjectives in rule 5.4, Mortimer J in Davis observed:
(a)the word ‘remedy’ “should be understood to mean something approaching a removal or cure of the impairment”[56]
(b)the word ‘known’ connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment”[57]
(c)the word “appropriate” “connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo”[58]
(d)the word “available” “should be understood as directed at what treatments an individual can, in reality, access”[59].
[56] Davis, at [136]
[57] Davis, at [137]
[58] Davis, at [137]
[59] Davis, at [138]
In relation to whether an impairment is likely to be permanent, the Access Guideline reflects the jurisprudence and relevantly state:
·We need to know whether your impairments are enduring so that you require NDIS supports on an ongoing basis.
·We will focus on your impairments, and not on the cause of your impairments, or your diagnoses.
·Even when your condition or diagnosis is permanent, we’ll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, or if there are known, available and appropriate evidence-based clinical, medical or other remaining treatments options that are likely to remedy the impairment.
·Generally, we’ll consider whether your impairment is likely to be permanent if all available and appropriate treatment options are pursued.
·Your impairment will likely be permanent if your treating professional tells us there are no further treatments that could remedy 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 that are:
o known – the treatment can be identified by an Australian medical practitioner as a suitable treatment for your impairment
o available to you – we need to take account of whether there are genuine barriers that prevent you from accessing treatment including, but not limited to, the nature of your impairment and your ability to access treatment
o appropriate for you and your impairment – we need to consider whether the treatment could remedy your impairment and is suitable and safe for you to undergo. Your ability to undergo treatment will be assessed according to your capabilities, your health and other personal circumstances, including your living arrangements
o evidence-based – there’s proof the treatment is likely to be effective.
·When we look at what treatments are available to you, we think about whether the treatment is suitable for your personal situation. The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle.
·If you’re still undergoing or have recently had treatment, we may not be sure you have a permanent impairment if that treatment could remedy the impairment.
·In some situations, it may be clear your impairment is likely to be permanent while you’re still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it’s clear you are likely to have a permanent impairment.
List B in the Access Guideline states the conditions the Agency accepts as likely to result in permanent impairment. The Tribunal notes that List B includes “pervasive developmental disorders not meeting severity criteria in List A or List C, such as autism”[60].
[60] Access Guideline, page 33
The Tribunal notes that the focus of Rules 5.4 and 5.6 is on medical and clinical treatment. These statutory provisions require the Tribunal to consider what treatment is available and suitable and if so, the likely outcomes of the Applicant undertaking it. These rules indicate that consideration of any treatment the Applicant has had to date for her impairments is integral to these considerations. This is further emphasised by the references to the importance of information from treating professionals in the above policy positions and extracts from the Access Guideline.
Rules 5.4 and 5.6 allow, in the Tribunal’s opinion, for the possibility that an applicant’s impairment can, by virtue of the nature of the underlying condition and/or the circumstances and characteristics of the applicant, meet the legal requirement of permanence where they have had little to no treatment.
Assessment of permanency
The Applicant states ASDL1 is a lifelong condition[61] and her impairment is permanent[62].
[61] JTB, page 147
[62] JTB, page 148
The Agency accepts that the Applicant’s impairment is permanent.
The Tribunal notes it has no evidence before it from any professionals treating the Applicant’s impairment. BP emphasise in their reports they were engaged for the purposes of assessment only[63]. They are unaware if the Applicant has received treatment for her impairments arising from ASDL1[64]. The Applicant states BP’s May 2023 report is diagnostic[65].
[63] JTB, page 50, 60, 62
[64] JTB, page 62
[65] T1E, page 34
Dr J, the Applicant’s GP states in their Supporting Evidence Form to the access request dated 9 August 2023, two to three months following her ASDL1 diagnosis, that the Applicant receives “ongoing psychology” as treatment for their ASDL1[66]. No details are provided. The Tribunal considers this evidence is insufficient to support a finding the Applicant has received treatment for her impairment.
[66] T1C, page 23,24
Ms A reports the Applicant as informing her she has not engaged in treatment for her impairment[67].
[67] JTB, page 16
Based on the above evidence, the Tribunal finds the Applicant has had no treatment for her impairment.
Nonetheless, the Tribunal accepts the opinion of DP[68]:
ASD is a lifelong neurodevelopmental disorder that originates from variations in brain development before birth or in early childhood… The symptoms of ASD persist throughout an individual’s life. There is no cure for ASD.
[68] JTB, page 63
It places weight on the policy position in the Access Guideline that ASD is a condition likely to result in permanent impairment.
Based on the findings and reasons above, the Tribunal is satisfied that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the Applicant’s impairments. It is satisfied those impairments do not require further medical treatment or review for their permanency or likely permanency to be demonstrated.
Conclusion on permanency
The Tribunal is satisfied the Applicant’s neurological impairment is, or is likely to be, permanent.
Accordingly, the Applicant satisfies the element of permanency in the disability and early intervention requirements, in section 24(1)(b) and section 25(1)(a)(i) of the Act respectively.
Section 24(1)(c): Does the Applicant have substantially reduced functional capacity in a specified life activity area?
Overview and preliminary considerations
Section 24(1)(c) requires that the Applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the following life activities: communication, social interaction, learning, mobility, self-care or self-management. She need only establish she experiences substantially reduced functional capacity in one life activity area[69]. The Agency contends the Applicant does not have substantially reduced functional capacity in any one of them[70].
[69] Mulligan at [56].
[70] JTB, page 73
The Access Guideline provides further content to the range of tasks and actions that comprise each life activity area.
Rule 5.8 of the Access Rules is the only rule that applies to the assessment under section 24(1)(c). The courts have determined Rule 5.8 is a “deeming provision”[71]. It deems the applicant to meet the requirements of section 24(1)(c) if one of the three alternative scenarios stated therein applies[72]. Rule 5.8 states:
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
[71] Mulligan, at [77]
[72] Mulligan, at [77]
The Tribunal must first consider in addressing each of the life activity areas whether the Applicant’s circumstances are within those sections set out in one of the three alternative limbs of Rule 5.8. If they are, she will be deemed to have a substantially reduced functional capacity[73] and the requirements of section 24(1)(c) are met. If they are not, the Tribunal must go on to holistically assess whether the Applicant’s functional capacity is nevertheless substantially reduced in any of the life activity areas applying the test in section 24(1)(c)[74].This approach has been summarised recently in Foster and NDIA[75]:
Rule 5.8 specifies three circumstances in which a prospective participant will be deemed to satisfy the requirement of “substantially reduced functional capacity”. The purpose of the Rule, in my opinion, is to enable the s 24(1)(c) enquiry to be truncated in clear cases that fall within that Rule. However, the Rule is not exhaustive of the circumstances in which substantially reduced functional capacity resulting from an impairment may be found. The statutory task therefore is to determine, first, if the prospective participant falls into any of the categories of persons deemed by Rule 5.8 to have substantially reduced functional capacity having regard to the life activity area. If not, it is, second, to determine in accordance with the Act if the person otherwise has substantially reduced functional capacity in any of these life activity areas.
[73] Mulligan, at [77]
[74] Mulligan, at [76]
[75] [2025] ARTA 725, at [51]
As noted above, consideration must be of the full range of tasks and actions that comprise each of the life activity areas[76]. The Tribunal’s focus must be on what the person cannot do, not on what the person does not do[77].
[76] Foster, [64].
[77] Mulligan, at [55]-[56]
The Tribunal understands from the BP Reports that the nature of ASD from a clinical perspective is one where the positive diagnosis arises from the established presence within specified ranges of impairments in the life activity domains of social interaction and communication in particular[78], with the potential to also impact the other four life activity areas in section 24(1)(c) depending on the severity of the disorder.
[78] JTB, page 53
The emphasis of the Applicant’s evidence mirrors the diagnosis. BP’s diagnosis is that the Applicant’s predominant impairment is social impairment and that her challenges are “typically associated with ASD at a mild range of impairment”[79].
[79] JTB, page 59
BP also state they did not assess the impact on the Applicant’s functional capacity of her ASDL1 in the life activity areas of self-management, learning, communication or self-care[80]. They do not mention mobility.
[80] JTB, page 63
Further, the Tribunal observes the opinions of BP about the impact of the Applicant’s impairment on her functional capacity for social interaction are based on their assessment of her social impairment using the Social Responsiveness Scale, second edition (SRS-2)[81]. BP explain that the SRS-2 is an assessment based on self-reporting[82].
[81] JTB, page 54-55, 59
[82] JTB, pages 54-55
Other than the statement from the Applicant’s brother and some observations in Ms A’s report, there is little by way of corroborating observations before the Tribunal that goes to the Tribunal’s critical task of assessing the impact of the Applicant’s permanent impairment and its consequential symptoms on her functional capacity in the six life activity areas. The weight of the Applicant’s evidence is based on self-reporting and the Tribunal did not have the opportunity to test this evidence at a hearing, with the Applicant, her brother or Ms A. The Tribunal has no evidence at all from the Applicant’s husband. The Tribunal does give weight to the Applicant’s statements but with some tempering given they are untested.
The Applicant’s claims about the life activity areas impacted by her impairment are somewhat contradictory. The Applicant claims do substantially align with the BP Reports in so far as she claims to have substantially reduced functional capacity in relation to social interaction[83]. She also states she struggles significantly with self-care[84]. The supporting statement from the Applicant’s brother is focused on the Applicant’s difficulties with social interaction.
[83] JTB, page 148
[84] JTB, page 148
However, the Applicant also states she has difficulties in multiple areas of daily living[85] and that living with ASD influences her in every area of her life[86].
[85] JTB, page 148
[86] JTB, page 46
Accordingly, the Tribunal approaches the assessment under section 24(1)(c) on the understanding the Applicant seeks to argue she has substantially reduced functional capacity in all the six life activity areas and considers these in turn, below.
Ms A is the expert witness who has most closely and recently assessed the Applicant’s functional capacity. Her assessment was conducted over approximately two hours in the Applicant’s home. Ms A notes that the Applicant’s husband and children were not present. The Tribunal has taken into consideration Ms A’s qualification that her observations and recommendations “should be considered within this context of a time-limited assessment in a familiar, low-stress environment”[87]. The Tribunal also observes that for much of Ms A’s assessment she only had access to the Applicant’s self-reports. The Tribunal views with some reservation Ms A’s definitive conclusions of fact where those are based only on the Applicant’s self-reports.
[87] JTB, page 12
The Tribunal has taken into consideration, to the extent relevant, all the evidence before it regarding the Applicant’s sensory sensitivity in conducting its assessment under section 24(1)(c).
Communication
The Access Guideline describes communicating as follows:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
The Applicant’s GP and BP opine that the Applicant does not need assistance with communication[88].
[88] T Docs, page 26, 86
The Applicant states she has difficulty reading social situations and nuances[89]. She has been told by her husband she thinks people have ulterior motives when they do not, and that she has difficulty understanding fictional plots[90].
[89] JTB 48, 16
[90] JTB, 48
Ms A reports the Applicant demonstrated solid verbal and written skills and ability to convey complex ideas[91]. She reports the Applicant as demonstrating strong receptive communication skills and a high capacity for understanding and notes the Applicant’s professional expertise and her proficiency in several languages[92].
[91] JTB, page 16, 19
[92] JTB, page 19
Ms A observed the Applicant speaking directly without softening her words[93]. The Applicant reported difficulties in exercising restraint in dialogue with family and her general style as being rigid and blunt[94]. The Tribunal observes the Applicant’s statements for this proceeding to be consistent with those characterisations.
[93] JTB 16
[94] JTB 19
The Tribunal accepts the Applicant has a reduction in her communication capacity in some social situations. It accepts she requires some assistance to understand social nuances. However, there is no one communication task the Applicant forgoes altogether or requires AT, equipment or in person supports to be able to carry out the task as a whole. It considers that she experiences minor impairment in only discreet components of the range of tasks or actions that comprise the activity of communication. For this reason, the Tribunal finds the Applicant does not usually require assistance from other people, assistive technology, equipment or home modifications to participate in the activity of communication or to perform tasks or actions required to undertake or participate in the activity of communication.
The Tribunal finds the Applicant’s circumstances are not captured by those described in rule 5.8 of the Access Rules. Nor is the Tribunal satisfied that the reduction in the Applicant’s functional capacity to undertake the activity of communication is substantial. Accordingly, the Tribunal finds the Applicant’s impairments do not result in substantially reduced functional capacity to undertake the activity of communication.
Learning
The Access Guideline describes learning as:
Learning – how you learn, understand and remember new things, and practice and use new skills.
The Applicant makes no claim in her statement that her learning is impacted by her impairment.
The Applicant’s GP makes no comment about the Applicant’s needs for assistance with learning[95]. BP opines the Applicant does not need such assistance[96].
[95] JTB, page 27
[96] T-Docs, page 87
Ms A notes the Applicant’s strong comprehension skills[97], memory and multiple tertiary degrees[98].
[97] JTB, page 26
[98] JTB, page 27
Ms A concludes the Applicant’s sensory sensitivities “affect her ability to learn in certain environments or under certain conditions”[99]. The Tribunal’s view is that whilst this theoretically may be so, there is very limited cogent information before the Tribunal about the Applicant’s capacity to learn in a variety of environments other than to note she has been successful in academic ones and in the workplace as she has maintained long term employment[100] and been offered new roles to better utilise her talents[101].
[99] JTB, page 33
[100] JTB, page 21
[101] JTB, page 47
The Tribunal finds it has no cogent evidence the Applicant experiences a reduction in functional capacity in the activity of learning.
Regarding the activity of learning, the Tribunal finds that the Applicant’s circumstances are not captured by rule 5.8. It further finds the Applicant’s impairment does not result in substantially reduced functional capacity to undertake the activity of learning.
Social interaction
The Access Guideline describes social interaction, or “socialising”, as follows:
Socialising - how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
In Madelaine[102], the AAT expressed the opinion that the Tribunal’s assessment in this domain must be principally directed at the personal skills needed for social interaction and only marginally about opportunities to exercise those skills. In the Tribunal’s view, this is the correct approach.
[102] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine).
The Applicant states “social interactions remain a daunting frontier, fraught with uncertainty and anxiety”[103].
[103] JTB, page 48
She reports she has friends she has known for a long time, struggles to make new friends and finds it hard to forgive people and cuts them off[104]. She reports she speaks “at” people rather than “to them”[105]. The Tribunal notes its finding above that the Applicant can be blunt and unmodulated in her communication. The Applicant’s brother states, and the Tribunal accepts, the Applicant seeks his weekly counsel about processing social situations and can become distressed about her friendships and that she turns to him for advice and support[106].
[104] JTB, page 48-49
[105] JTB, page 49
[106] JTB, page 69
The Tribunal accepts the Applicant’s permanent impairment has contributed in some part to strained relations between her and her husband’s family[107], although it lacks the evidence to make further findings in this regard.
[107] JTB, page 48
There is otherwise significant evidence before the Tribunal that the Applicant is effectively socially engaged and able to sustain long term relationships with family and friends and interact effectively with the community. That evidence is across the documents before the Tribunal and demonstrates the Applicant has sustained and strong relationships with her husband and their children, many of her siblings, her childhood friends and her supervisor at work. The Tribunal notes the Applicant has sought out and performed several public roles in the community. Tribunal accepts the Applicant has some difficulty in making newer friendships however her evidence in this regard is limited to this generalised assertion. While the Tribunal accepts the Applicant reported difficulties in attending social situations scheduled in conflict with her bedroom routine and in noisy environments, its notes this is largely not relevant to the Tribunal’s assessment of capacity for social interaction.
Ms A reports, and the Tribunal accepts, she assessed the Applicant has have average to above average performance in social integration, productivity and social networking[108]
[108] JTB, page 14
The Tribunal accepts the Applicant has a reduction in her capacity for social interaction in some social situations. It accepts she requires some assistance to understand social nuances. However, there is no one social interaction task the Applicant forgoes altogether or requires AT, equipment or in person supports to be able to carry out the task as a whole. It considers that she experiences impairment in only discreet components of the range of tasks or actions that comprise the activity of social interaction. For this reason, the Tribunal finds the Applicant does not usually require assistance from other people, assistive technology, equipment or home modifications to participate in the activity of communication or to perform tasks or actions required to undertake or participate in the activity of communication.
The Tribunal finds the Applicant’s circumstances are not captured by those described in rule 5.8 of the Access Rules. Nor is the Tribunal satisfied that the reduction in the Applicant’s functional capacity to undertake the activity of social interaction is substantial. Accordingly, the Tribunal finds the Applicant’s impairments do not result in substantially reduced functional capacity to undertake the activity of social interaction.
Mobility
The Access Guideline describes mobility as follows:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of a bed or a chair. We consider how you get out and about and use your arms or legs.
In Madelaine, the AAT held that the threshold requirements to achieve functional capacity with respect to mobility are “relatively modest”:[109]
A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community…
The use of the phrase move around … to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.
No particular distance is specified in the Guideline as defining this level of mobility, but it seems reasonable to suggest that a person who can travel 50 m by herself has the capacity to do the things referred to in the Guideline.[109] Madelaine, at [104]–[105].
The Applicant’s GP and BP opine the Applicant does not need assistance with mobility[110].
[110] T Docs, page 26, 86
Ms A reports the Applicant as having nil issues in movement, sitting, standing, transfers, walking, running, kneeling, crouching, bending, reaching, carrying and lifting[111].
[111] JTB, page 27
The Tribunal accepts the Agency’s submission there is no expert evidence that the Applicant has reduced functional capacity in the activity area of mobility.
Regarding the activity of mobility, the Tribunal finds that the Applicant’s circumstances are not captured by rule 5.8. It further finds the Applicant’s impairment does not result in substantially reduced functional capacity to undertake the activity of mobility.
Self-care
With respect to the activity of self-care, the Access Guideline provides:
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.[112]
[112] Access Guideline, 8.
The Applicant’s GP and BP positively state the Applicant does not need assistance with self-care[113].
[113] T-Docs, page 28, 88
The Applicant’s evidence indicates she experiences some sensitivities while performing some aspects of self-care tasks. She has adapted to these by using a specific toothpaste and toothbrush and wearing only loose clothing, mostly avoiding zips and buttons and does not wear velvet[114]. She is very particular about her shoes[115] She will eat only specific brands of bread and peanut butter for breakfast and will skip breakfast if the household has run out[116]. For lunch she has a meal of vegetables and often cheese.
[114] JTB, page 46
[115] JTB, page 25
[116] JTB page 46
She finds bed sheets have a “scratchy embrace”[117]. She has a specific sleep routine[118].
[117] JTB, page 46
[118] JTB, page 48
The Applicant’s husband does most of the shopping following a list the Applicant has carefully prepared, but the Applicant will go out for overlooked items or order them online[119]. The family has assistance with meals being prepared ahead of time and frozen[120].
[119] JTB, page 28
[120] JTB, page 28
Ms A notes the Applicant presented to the assessment as well-groomed and appropriately dressed[121].
[121] JTB, page 016
Ms A’s opinion is that the Applicant is independent in dressing, toileting, eating, and personal cleanliness[122].
[122] JTB, page 19
The Tribunal acknowledges the Applicant has as number of sensory sensitivities regarding food textures and cleaning the house. The following passage in her statement is on point:
As evening descends, I try to keep a similar routine but find it increasingly difficult now with so many demands from my young children. It is almost impossible for me to deal with the sensory mess of cleaning up certain foods such as rice, squashy textures such as mash potatoes or squeeze sauce bottles. I feel physically sick if I touch these textures and it creates extra pressure in my relationship with my husband who is forced to do the bulk of the mealtimes with children at dinner due to my sensory aversions.
I am unable to clean, cook or do any housework. I become completely overwhelmed by the sheer scope of what needs to be done and I become dysregulated. Sometimes I cry. Other times I scream or turn over chairs due to the mess. I have a specific way that I like the house to be organised. And I like everything in its place. With little children, its almost impossible to maintain the standard I am seeking on a day to day basis. So I will avoid rooms that are messy until my husband cleans them or we have some rare cleaning help.
These claims are substantially reiterated in Ms A’s report.
Without diminishing the evident overwhelm and distress to the Applicant these scenarios cause, the Tribunal agrees with Ms A regarding the Applicant’s independence in the tasks and activities of self-care. The assessment of functional capacity the Tribunal must undertake regarding the activity of self-care in section 24(1)(c) is directed to the capacity to care for oneself, not for others. This is also true of the assessment of self-management, which is discussed below.
The evidence demonstrates that the difficulties the Applicant experiences in cooking and cleaning overwhelmingly stem from being the mother of small children and the consequential difficulty in controlling her exposure to her aversions to certain food textures, smells, dirt and disorder in her physical environment. The Tribunal does not find them to be indicative of the Applicant’s functional capacity to eat or to maintain her hygiene or a healthy and safe home environment for herself. Indeed, her evidence suggests she may have high capabilities in these areas when she can put adaptations in place. The evidence also indicates that she has implemented adjustments in partnership with her husband, and they have come to an arrangement whereby her husband carries out much of the household cleaning, including laundry. The Tribunal considers this is part and parcel of the division of household responsibilities according to the relative strengths and weaknesses of the adults involved. The Tribunal does not accept the Applicant is unable to use a washing machine[123] given her high functional capacity in learning.
[123] TB, page 28
The Tribunal accepts the Applicant experiences significant sensory processing challenges[124] which she responds to by avoiding particular sensory experiences and seeking out others to replace them with[125] as well as pacing herself and seeking the support of her husband with parental duties. However, the evidence before the Tribunal is that she is able to toilet herself, bathe, groom and otherwise maintain her personal hygiene, to get dressed and undressed and to dress appropriately.
[124] JTB, page 15
[125] JTB 15
The Tribunal finds there is no one task of self-care she forgoes altogether, or for which she requires AT, equipment or in person supports to be able to carry out the task as a whole. The Tribunal considers the actions the Applicant modifies are only a discreet component of the range of tasks or actions that comprise the activity of self-care.
For these reasons, the Tribunal finds the Applicant does not usually require assistance from other people, assistive technology, equipment or home modifications to participate in the activity of self-care or to perform tasks or actions required to undertake or participate in the activity of self-care.
The Tribunal finds The Applicant’s circumstances are not captured by those described in rule 5.8 of the Access Rules. Nor is the Tribunal satisfied that the reduction in the Applicant’s functional capacity to undertake the activity of self-care is substantial. Accordingly, the Tribunal finds the Applicant’s impairments do not result in substantially reduced functional capacity to undertake the activity of self-care.
Self-management
With respect to the activity of self-management, the Access Guideline provides:
Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
The passages above regarding management of the household go to the issue of functional capacity in self-management as well. The Tribunal reiterates that whist stressful for the Applicant, she has actively worked to reduce if not solve the problem in partnership with her husband.
The Applicant’s GP positively states the Applicant does not need assistance with self-management[126].
[126] T-Docs, page 28, 88
Ms A reports the Applicant recorded a perfect score in a clinical assessment of her practical judgement indicating excellence in this area as well as strong decision-making skills in everyday scenarios and functional tasks[127]. Ms A reports that in addition to the Applicant’s parental, work and community duties the Applicant[128]:
is actively involved in coordinating her father’s care despite conflicts/challenges she has had with his carers. Her involvement in her father’s care demonstrates a capacity for family responsibility despite her personal challenges.
[127] JTB, pages 14-15
[128] JTB, page 18
Regarding the activity of self-management, the Tribunal finds that the Applicant’s circumstances are not captured by rule 5.8. It further finds the Applicant’s impairment does not result in substantially reduced functional capacity to undertake the activity of self-management.
Conclusions on substantially reduced functional capacity and the disability requirements
The Tribunal is not satisfied the Applicant’s neurological impairment results in substantially reduced functional capacity to undertake any of the activities in section 24(1)(c). Accordingly, the requirement in s 24(1)(c) is not met.
It follows that The Applicant does not meet the disability requirements in section 24.
Does the Applicant meet the early intervention requirements in relation to her neurological impairment?
It remains to be considered whether the Applicant’s neurological impairment, not being found to give rise to substantially reduced functional capacity in any of the six activity areas in section 26(1)(c), would cause the Applicant to meet the early intervention requirements.
The Tribunal has found above that the Applicant meets the requirements of section 25(1)(a)(i) of the Act by virtue of her neurological impairment.
The next question is whether there are early intervention supports likely to reduce her future needs for supports in relation to her disability, pursuant to section 25(1)(b).
Rule 6.9 of the Access Rules sets out the mandatory considerations for the Tribunal in answering this question, being:
(a) the likely trajectory and impact of the person's impairment over time; and
(b) the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
As is noted above, the Applicant did not make submissions to the Tribunal expressly directed to the early intervention requirements.
The Agency’s position is that there is no evidence before the Tribunal that goes to the likely trajectory and impact of the Applicant’s impairment over time and how early intervention would reduce the Applicant’s needs for supports over her lifetime[129].
[129] JTB, page 78
For the reasons below, the Tribunal finds the evidence before it is not sufficient for the Tribunal to be satisfied the Applicant meets the early intervention requirements.
As the Tribunal has reasoned and found above, the Applicant has to date received no treatment for her impairment. Whilst on the facts of the matter, this has not prevented her from satisfying the requirement of permanency, it presents a significant obstacle to the Tribunal reaching any reliable findings regarding the likely trajectory of her impairment over time as well as its likely impact. As Ms A notes in her report, providing a prognosis on the trajectory of the Applicant’s ASDL1 falls outside the scope of her practice as it is more within the domain of medical or psychological specialists specialising in ASD[130]. She concludes[131]:
As an OT conducting a one-time assessment, it is not possible to offer a definite opinion on [the Applicant’s] future ASD-related support needs. This limited interaction does not provide the long-term perspective necessary to predict future needs or outcomes of interventions. While the goals of recommended interventions can be outlined, predicting their effectiveness and future impact on her support needs remains uncertain.
[130] JTB, page 39, 40
[131] JTB, page 40
The Tribunal notes further that Ms A’s speculations regarding the potential trajectory of the impact of the Applicant’s impairment over time concentrate on her difficulties with domestic household responsibilities[132].
[132] JTB, page 39
The Applicant’s GP recommends in August 2023 early intervention supports by way of speech therapy, occupational therapy, nutritional therapy and psychology. They state the Applicant:
[w]ould benefit from support of a psychologist in managing distress and anxiety associated with reported overwhelm in routine or task disruptions, reported rigid thinking as well as other difficulties with managing emotions and social relationship including difficulties with people touching/rearranging her things, several sensory difficulties, reported challenges with empathy, understanding others’ emotions. A nutritionist will help her manager her food aversions and difficulty with certain textures. An occupational therapist will support her with obsessive movements and rigid thinking resulting in repetitive behaviours. Speech therapy will support her with communication.
The Applicant’s GP does not comment on the desired impact of the proposed supports on reducing her future need for supports.
The Tribunal observes that BP, in their Supporting Evidence Form dated 3 July 2023, do not recommend early intervention supports for the Applicant. In the Social Interaction section, however they state that the Applicant:
[m]ay benefit from support by a mental health practitioner in managing distress and anxiety associated with reported overwhelm in routine or task disruptions, reported rigid thinking as well as other difficulties with managing emotions and social relationships including difficulties with people touching/rearranging her things, several sensory difficulties, reported challenges with empathy, understanding others’ emotions.
The Tribunal considers BP’s recommendation is appropriately qualified given they have not treated the Applicant and are unaware of treatment the Applicant has had to date.
The Tribunal observes that the above passage from the Applicant’s GP is largely a copy and paste of this earlier text from BP, other than changing “may” to “would” and “will” without stated justification. The Tribunal finds accordingly that the GP’s opinion on this issue is uncompelling and unreliable and accords it no weight.
Given the above findings and reasons, the Tribunal is unable to draw any conclusions about the likely trajectory of the Applicant’s impairment or its impacts over time.
Ms A opines that the effectiveness of early intervention supports will also depend on factors such as the Applicant’s engagement. On this issue, the Tribunal makes a number of observations about the Applicant’s engagement in the processes to seek access to the NDIS that causes the Tribunal to be circumspect as to the Applicant’s potential engagement in, and effectiveness of, any early intervention supports through the NDIS.
The Tribunal observes that the Applicant’s original access request form, other than her personal and contact details, was not completed. There are standard sections in the form designed to assist the Agency to understand a prospective participant’s request that the Applicant did not complete.
The Tribunal has noted above that the Applicant sought and has been granted a confidentiality order and a determination without a hearing. She also opposed Ms A giving evidence at a hearing if one had been held. The Tribunal notes the latter this was to ask the Tribunal to act in a way that would have been unfair to the Agency and in breach of the Tribunal’s statutory obligations under sections 9 and 55 of the ART Act.
The Applicant does not report in her statement that she wishes to change her current approaches to managing her impairment and its symptoms. She states that it was her child’s autism diagnosis and recognition of similar behaviours in herself that prompted her to pursue a diagnosis. Her evidence is not that she sought out the diagnosis because she needs support. The evidence before the Tribunal does not indicate the Applicant has sought treatment or formal supports despite her ASDL1 diagnosis being confirmed a little under two years before the closure of evidence in this proceeding. There is no evidence the Applicant experiences financial barriers to obtaining treatment or support. There is no opinion from the Applicant in her statement or submissions as to the supports that might benefit her.
It follows from the analysis and reasons above that the Tribunal is unable to reach any cogent findings as to the Applicant’s current or future need for supports.
For all the above reasons, the Tribunal is not satisfied the provision of early intervention supports to the Applicant is likely to benefit her by reducing her future needs for supports in relation to her disability. Accordingly, the requirement in section 25(1)(b) is not met and it follows from there that the Applicant does not meet the early intervention requirements in section 25 of the Act in relation to her neurological impairment.
As the Tribunal has concluded the Applicant does not meet the requirements for access to the NDIS, it must affirm the decision under review.
DECISION
The decision under review is affirmed.
Applicant: GWMR Solicitors for the Respondent:
Counsel for the Respondent:
Ms S Taylor, Moray & Agnew Lawyers
Mr M Kenneally
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