Hassett and National Disability Insurance Agency (NDIS)
[2025] ARTA 1513
•25 August 2025
Hassett and National Disability Insurance Agency (NDIS) [2025] ARTA 1513 (25 August 2025)
Applicant:David Hassett
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/9406
Tribunal:General Member I Selley
Place:Adelaide
Date:25 August 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 25 August 2025 at 1:49pm
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)
National Disability Insurance Agency, NDIS Operational Guidelines: Home modifications, 7 April 2025
National Disability Insurance Agency, NDIS Operational Guidelines: Assistive Technology, 20 December 2023
Administrative Review Tribunal, Guideline on persons giving expert and opinion evidence, December 2024, Microsoft Word - Guideline on persons giving expert and opinion evidence.docx.
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
Statement of Reasons
INTRODUCTION
The issue for the Tribunal’s determination is whether Mr David Hassett should be granted access as a participant to the National Disability Insurance Scheme (NDIS) and therefore be able to access NDIS supports for his lifetime.
Mr Hassett is 41 years of age and resides in regional NSW[1] with his wife and children[2]. In 2017, he fractured his left hand at work[3]. Following surgery, he experienced the gradual onset of burning and radiating pain in his left upper limb[4] which then spread to other parts of his body. By July 2020, he had been diagnosed with Chronic Neuropathic Pain Syndrome[5].
[1] JTB, page 19
[2] JTB, page 39
[3] JTB, page 68, 239
[4] JTB, 239
[5] JTB, page 6
Mr Hassett has not worked since his accident. In September 2020, he received a workers compensation determination and lump sum payment[6]. He still has workers compensation proceedings on foot.
[6] JTB, page 1
On an unknown date, Mr Hassett requested access to the NDIS. In December 2023, the National Disability Insurance Agency (the Agency) decided to refuse Mr Hassett’s access request, and he 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. Mr Hassett’s AAT Application was automatically transferred to the ART[7].
[7] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024
This Tribunal decision is about whether the impairments that Mr Hassett lives with are of such nature and extent that he 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.
To be given access to the NDIS, Mr Hassett must also meet the age and residence requirements in sections 22 and 23 of the Act. That he meets those requirements is accepted.
For the reasons set out below, the Tribunal has determined Mr Hassett has 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 he does not meet the disability requirements. The Tribunal has also determined that Mr Hassett does not satisfy the requirement in section 25(1)(b) that early intervention supports be likely to benefit him by reducing his future disability supports needs, and therefore the early intervention requirements are not met.
LEGISLATION AND POLICY
The Disability and Early Intervention Requirements
Sections 24 and 25 of the Act were amended after Mr Hassett made the AAT application, however, those changes apply only to access requests made on or after 3 October 2024[8]. The Tribunal therefore applies the disability and early intervention requirements as they were immediately prior to those amendments and as quoted below.
[8] 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[9]. Section 24 of the Act states:
[9] 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[10]. Early intervention is envisaged to be particularly but not exclusively applicable to children.
[10] 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” [11] to gaining access to the NDIS.
[11] Mulligan v NDIA [2015] FCA 544, at [18] (Mulligan)
Given Mr Hassett 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 he fails to satisfy one, then he cannot meet the disability requirements, and the Tribunal must turn its attention to whether he 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”[12]. It is not the name of a person’s disability or their medical diagnoses or conditions[13]. Impairment involves the loss of or damage to a physical, sensory or mental function[14].
[12] National Disability Insurance Agency v Davis [2022] FCA 1003 at [69] (Davis)
[13] Davis, at [69]
[14] Mulligan, at [51]
The courts have said “permanent” means “enduring”[15]. An impairment may endure even if it fluctuates, or may fluctuate during a person‘s lifetime, in its intensity and impact [16].
[15] Davis, at [85]
[16] 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[17].
[17] 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 Mr Hasett can and cannot do.[18] The Tribunal must assess the degree to which he can participate in the activity[19]. That assessment involves consideration of the full range of tasks and actions that comprise each of the life activity areas[20]. It would be incorrect to ask this question only in relation to one or a few of such tasks[21]. It would also be incorrect to focus on what the person does not do, as opposed to what they cannot do[22].
[18] Mulligan, at [56].
[19] Foster, at [88]
[20] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), [64].
[21] Foster, at [64]-[66]
[22] Mulligan, at [55]-[56]
The term ‘substantially’ in this context carriers a “high threshold”[23]. 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[24].
[23] Garcia Albiol and NDIA [2024] AATA 496
[24] Foster, at [76]
It is for Mr Hassett to provide the Tribunal with sufficient evidence and information to persuade it that he meets the access criteria[25], and for the Agency to assist the Tribunal to make the correct or preferable decision[26].
[25] Beezley v Repatriation Commission (2015) FCAFC 165 at [68]
[26] Section 56(1), ART Act
Relevant jurisprudence concerning the Access Rules is discussed below.
NDIS Guidelines
The Tribunal must take into consideration[27], but is not bound by[28], the Agency’s current policy guidance contained in NDIS – Applying to the NDIS Guideline (the Access Guidelines). 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[29]. The Agency’s Operational Guidelines on Assistive Technology and Home Modifications are also relevant and have been taken into consideration.
[27] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
[28] G v Minister for Immigration and Border Protection, per Mortimer J [2018] FCA 1229 at [171]
[29] Applying to the NDIS | NDIS
THE APPLICATION AND DECISION UNDER REVIEW
On 8 October 2023, the Agency refused Mr Hassett’s request to access the NDIS[30]. Mr Hassett then applied to the Agency for an internal review of that decision, on 9 October 2023, and on 4 December 2023, the Agency again determined not to grant him access (the internal review decision)[31]. The internal review decision is the decision that is under review by the Tribunal. The Agency did not provide the Tribunal with a copy of Mr Hassett’s original access request however a letter from the Agency to Mr Hassett indicates that he was making inquiries about access in August 2021[32].
[30] JTB, page 2
[31] JTB, pages 40-41
[32] JTB, page 67
In the internal review decision, the Agency accepted only that Mr Hassett had a physical impairment arising from Chronic Neuropathic Pain Syndrome. It did not accept that impairment was permanent and therefore did not go on to consider the remaining criteria in section 24 of the Act. The Agency reasoned that Mr Hassett had provided insufficient information about the treatment he had received for those impairments.
On 7 January 2024, Mr Hassett applied to the Administrative Appeals Tribunal (AAT) for a review of the internal review decision. His application had been progressing unsuccessfully through alternative dispute resolution until January 2025, when it was constituted to the Tribunal for hearing and final determination.
EVIDENCE, SUBMISSIONS AND PROCEDURE
On 1 April 2025, the Tribunal conducted a hearing by Ms Teams video conferencing. Mr Hassett represented himself and appeared from his home. He did not have a support person present. The Agency was represented by Ms Amy Douglas-Baker as counsel and instructed by Maddocks Lawyers.
Mr Hassett and the Agency agree as to the documents the Tribunal should consider. A Joint Tender Bundle (JTB) of documents was given to the Tribunal and admitted into evidence. It includes the documents held by the Agency at the time Mr Hassett made the Tribunal Application including the internal review decision and evidence later obtained by the parties for this proceeding.
The Tribunal heard evidence from Mr Hassett and Ms Melissa Sale, the occupational therapist who conducted an independent functional assessment of Mr Hassett at the Agency’s instruction. Ms Sale prepared a report dated 2 September 2024 following her assessment on 5 August 2024[33]. Ms Sale is the expert witness who has most closely and recently assessed Mr Hassett’s functional capacity.
[33] JTB, page 263
Mr Hassett relies on documents including:
·two statements by him of lived experience, dated 10 April 2024 and an earlier undated statement
·two carer impact statements by his wife, Mrs Lauren Hassett, and dated October 2023 and April 2024.
The medical and clinical reports and records he relies upon include but are not limited to:
·reports and records from Dr John Prickett, Specialist Pain Management Physician
·report dated August 2021 from Paul Darveniza, Neurologist
·report dated May 2024 from Dr James Meyer, General Practitioner.
The Tribunal finds Dr Prickett’s reports dated October 2019, August 2020 and May 2024 to be of particular assistance.
In summary, reports were created for this proceeding only by Dr Prickett, Dr Meyer and Ms Sale.
Mr Hassett did not call these medical experts or Mrs Hassett to give evidence at the hearing.
Prior to the hearing, the Agency provided a Statement of Facts Issues and Contentions (SFIC) outlining the key arguments in its case. Mr Hassett did not respond to the Tribunal’s directions dated 1 October 2024 inviting him to provide pre-hearing submissions. Both parties made brief opening statements. The Agency made detailed closing submissions. Mr Hassett did not wish to make closing submissions.
As Mr Hassett was self-represented and did not have expert witnesses, the Tribunal ensured hearing time was dedicated to his testimony and the access and early intervention requirements were explained to him. The Tribunal encouraged Mr Hassett to request breaks above those scheduled as needed. Mr Hassett confirmed at the end of the hearing he had put forward all the information he wished to.
THE PARTIES’ POSITIONS
Mr Hassett did not make arguments addressing the statutory criteria. The Tribunal nonetheless understands he seeks to argue he meets the disability or the early intervention requirements.
The Agency contends the issues can be distilled to whether Mr Hassett meets the criteria in section 24(1)(c) and section 24(1)(e). It contends the evidence establishes Mr Hassett satisfies sections 24(1)(a), (b) and (d). It contends there is no evidence to support the conclusion Mr Hassett meets the requirements in section 25.
MR HASSETT’S WORKER’S COMPENSATION PROCEEDINGS
Prior to the commencement of the hearing, based on the documents included in the parties’ Joint Tender Bundle, the Tribunal had understood that Mr Hassett’s workers compensation proceedings had concluded in September 2020 with a lump sum payment. Mr Hassett clarified at hearing however that the proceedings were still on foot and delays in those proceedings had motivated his NDIS access request.
The Agency’s counsel helpfully observed in closing submissions that this would likely give rise to complications in Mr Hassett being able to satisfy the requirement in section 24(1)(e) of the Act, being that he is likely to require NDIS supports for his lifetime. This is because it is unclear what else the workers compensation system might compensate Mr Hassett for and provide Mr Hassett with and whether such services and supports, if any, might cut across the NDIS.
As the Tribunal has noted above and reasoned below, that it finds Mr Hassett’s impairment does not satisfy the terms of section 24(1)(c) of the Act makes it unnecessary for the Tribunal to consider and determine that the question raised under section 24(1)(e). However, it is perhaps helpful to note the influence Mr Hassett’s workers compensation proceedings have had in shaping the evidence before this Tribunal.
The Tribunal observes that Mr Hassett’s workers compensation proceedings are the source of much of the medical evidence Mr Hassett presented. In turn, much of that evidence was created at least four years prior to this Tribunal hearing and is directed in significant part to the assessment of his functional capacity to work rather than to complete tasks and activities of daily living that is the central focus of the NDIS access criteria. The Tribunal also understands from the evidence provided by Mr Hassett that the relevant legislative scheme for workers compensation in NSW is substantially different from the NDIS in so far as it requires the consideration of loss of capacity in percentages rather than being directed to the detailed and practical assessment of whether someone can or cannot do specific tasks and activities in the six specified life activity areas in section 24(1)(c).
The Tribunal observes that Mr Hassett’s experience of those workers compensation proceedings also influenced his oral testimony to the Tribunal. For example, Mr Hassett told the Tribunal he had in late 2024 seen a new pain doctor, Dr Gehr, who did a new impairment assessment, increasing him from 25% to 35%. Mr Hassett did not provide the Tribunal with a report from Dr Gehr.
There is of course no penalty to Mr Hassett for not reframing his evidence for the purposes of these proceedings. He is without legal representation and subject to any orders and directions from the Tribunal, he is at liberty to provide as much or as little evidence as he chooses. However, the Tribunal’s assessment of Mr Hassett’s claims against the criteria in section 24(1)(c) below does highlight some insufficiencies in the evidence by reason, in the Tribunal’s view, of the concurrent focus on other legal proceedings. As the Tribunal has noted above, it is for Mr Hassett to provide the Tribunal with sufficient evidence and information to persuade it that he meets the access criteria.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 24(1)(a): Does Mr Hassett have a disability that is attributable to an impairment?
As noted above, it is necessary to define Mr Hassett’s impairment with some precision.
Mr Hassett claims to have impairment arising from the medical condition of Chronic Neuropathic Pain Syndrome (CNPS). He claims to experience resultant pain and other dysfunctional sensations[34].
[34] JTB, pages 195-196
The Agency does not dispute the medical diagnosis of CNPS[35]. Prior to hearing, the Agency confirmed its acceptance Mr Hassett has a disability attributable to an impairment arising from CNPS. It characterised the impairment as physical, including pain[36]. This was also the Agency’s position in the internal review decision[37].
[35] JTB, page 1
[36] JTB, page 4
[37] JTB, page 44
In its opening statement, the Agency clarified its position of CNPS as primarily a sensory condition, one that causes not only the sensation of pain but also the sensation of burning, changes of colour in his skin, and muscle cramping and stiffness. The Agency directed the Tribunal to the evidence of Dr Prickett in particular.
The Tribunal notes there is diagnostic information about Mr Hassett’s condition and its progression since his hand injury in October 2017.
Dr Prickett’s May 2024 report most clearly outlines the clinical diagnosis, symptoms and long-term clinical prognosis for Mr Hassett. The report also touches on its impact on Mr Hassett’s functional capacity. The Tribunal accepts Dr Prickett is a Specialist Pain Management Physician who has been treating Mr Hassett intermittently for at least six years, since May 2018[38].
[38] JTB, page 237 and confirmed by Mr Hassett at hearing
The Tribunal accepts from Dr Prickett’s reports that Mr Hassett has a clinical diagnosis of “chronic widespread neuropathic pain affecting all four limbs with features of central sensitisation”[39]. The Tribunal accepts that Mr Hassett was earlier diagnosed complex regional pain syndrome when his symptoms were confined to his left wrist and forearm[40]. This diagnosis was changed to central sensitisation as Mr Hassett’s pain experience progressed to all four quadrants of his body and he sustained this presentation for a period of over six months[41]. The evidence suggests that Mr Hassett may have been living with neuropathic pain since 2018[42].
[39] JTB, page 236
[40] JTB, page 236
[41] JTB, page 236
[42] JTB, page 197
The Tribunal understands from Dr Prickett’s reports that neuropathic pain with sympathetic dysregulation is a neurological disorder whereby the central nervous system has become dysfunctional and transmits pain signals that are amplified in spread and intensity, to areas where there has been no injury or after the injury has healed and with an intensity and sensation that does not correlate with stimulation to the area in which the pain is felt[43].
[43] JTB, page 236-237; JTB page 267
The Tribunal accepts Dr Prickett’s evidence that pain is a symptom of the neurological disorder[44]. It accepts that the condition manifests primarily with allodynia (pain from light touch), hyperalgesia (increased sensitivity to pain), and spontaneous and evoked burning and stabbing symptoms[45]. It accepts there are associated symptoms of swelling[46], general fatigue, stiffness, and that the symptoms can increase with daily or repetitive activity[47]. The latter is described by Dr Prickett as “activity related flares”[48].
[44] JTB, page 236 - 237
[45] JTB page 236-237
[46] JTB, page 267
[47] JTB, page 237
[48] JTB, page 237
The Tribunal notes that Mr Hassett’s evidence accords with Dr Prickett’s explanations.
Dr Darveniza, the neurologist who conducted an assessment for the purposes of Mr Hassett’s workers’ compensation proceedings in August 2021, recounts the progression in Mr Hassett’s symptoms, noting the development in his right hand of the same shooting pains following regular hand physiotherapy, which then spread up the right arm, to his lower back and legs tending to spare the anterior aspects of the trunk, over the period approximately 2019 to 2021[49].
[49] JTB, pages 68-69
The Tribunal notes the Agency has characterised Mr Hassett’s impairment as physical or sensory. The Tribunal’s view is that his impairment is best characterised as neurological. What has become damaged is Mr Hassett’s central nervous system and what has become lost is Mr Hassett’s neurological ability to correctly transmit pain and sensory signals.
According and in light of the evidence, the Tribunal finds that Mr Hassett has a neurological impairment being the inability to regulate pain and similar sensations in his limbs and back.
Conclusions on disability
The Tribunal is satisfied Mr Hassett has a disability attributable to a neurological impairment.
Accordingly, Mr Hassett 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 Mr Hassett’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[50]. 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.
[50] Davis, at [73]-[75]
As to whether Mr Hassett’s condition is degenerative (Rule 5.7), there is passing comment in Dr Darveniza’s August 2021 report that Mr Hassett “thinks he is slowly getting worse”[51]. In an email to the Agency about his internal review request, Mr Hassett opines that his injury has rapidly “spread to all his limbs and (is) getting worse”[52]. Mr Hassett made similar comments in the hearing.
[51] JTB, page 69
[52] JTB, page 88. The Tribunal notes there are a number of extracts of interactions included in the JTB which are illegible and not referenced by either party (at T13 and T15)
There is little medical evidence before the Tribunal to corroborate this view. The Tribunal’s reading of Dr Prickett’s evidence discussed throughout this decision is that Mr Hassett’s symptomatology is largely unchanged since 2019. There is insufficient evidence before the Tribunal to conclude the impairment is degenerative in nature and the Tribunal accepts the Agency’s submission that it predominantly presents as treatment resistant rather than degenerative. In this regard, the Tribunal also refers to its assessment further below of Mr Hassett’s claims to meet the early intervention criteria.
The Tribunal observes that the evidence demonstrates fluctuations in the severity of the impacts of Mr Hassett’s impairments. That evidence is discussed in detail in the Tribunal’s assessment of section 24(1)(c). It is sufficient to say here that the Tribunal acknowledges there are such fluctuations, as is also observed by Ms Sale[53].
[53] JTB, page 272
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”[54]
(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”[55]
(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”[56]
(d)the word “available” “should be understood as directed at what treatments an individual can, in reality, access”[57].
[54] Davis, at [136]
[55] Davis, at [137]
[56] Davis, at [137]
[57] 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 neuropathic pain disorder is not on List B.
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 the likely outcomes of Mr Hassett undertaking it. These rules indicate that consideration of any treatment Mr Hassett has had to date for his 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.
Assessment of permanency
Mr Hassett states there is no cure for his condition and his condition is permanent.
The Agency accepts that Mr Hasett’s impairments are permanent. It submits the medical evidence demonstrates Mr Hassett has undergone a succession of treatments and his impairments and condition have proved treatment resistant.
Based on the evidence and for the reasons below, the Tribunal concurs with the parties’ position.
The Tribunal understands that Mr Hassett’s medical condition is one that is substantially defined by its symptoms. The persistence of the symptomatology is integral to the diagnosis. The Tribunal conducts a detailed review of the evidence before it as to Mr Hassett’s symptoms and the impact of those symptoms on his functional capacity below in its assessment of the section 24(1)(c) requirements.
Dr Prickett in his May 2024 report states that Mr Hassett’s symptoms:
… are persistent and have not been modified with the use of medications or medical therapies and he has reached the concept of maximal medical improvement and there are no current therapies that are recognised to reduce symptom burden. The primary focus of multimodal inputs would be to help him maintain functionality despite persisting symptom burden.
Dr Prickett states unequivocally that Mr Hassett’s disorder is at this stage, “incurable …and permanent for the foreseeable future within the context of our current medical understanding and treatment options”[58]. He explains Mr Hassett’s treatment progression following the initial injury:
…. He has had surgery to in 2017 to his left arm, extensive medication trails including opiates, gabapentinoids, Ketamine and cannaboids, mostly in 2018 and 2019. Injections were not thought to be appropriate from a pain reduction perspective or disease modulation. None of the approaches have offered significant symptomatic or functional benefit and have largely been rationalised and/or ceased. He has always demonstrated good compliance with medical treatments and has tried to translate any mild benefit into functional outcomes and continues to do so within his capabilities[59].
[58] JTB, page 237
[59] JTB, page 237
In his earlier May 2018 report, Dr Prickett notes that by that time, Mr Hassett had already multiple medical reviews and trialled a variety of different analgesic medications[60]. In October 2019, following an unsuccessful ketamine trial, Dr Prickett states that Mr Hassett “had probably reached the stage of maximal medical improvement”. Dr Prickett concludes that he “does not have any other reasonable or necessary treatments that he could justify on clinical grounds as it looks like his neuropathic pain has become essentially sensitised”[61]. He states in a letter to Mr Hassett’s then GP[62]:
Unfortunately the ketamine infusion did not markedly alter his background symptom complex or flares in pain. This leaves a situation where he has an ongoing pain experience which appears medically unresponsive and that he is going to have to learn to focus on adapting the presence of ongoing symptoms… I have encouraged him to keep a positive mind frame and recognise that this fundamental change in his circumstances will not have an impact on his mental health as it also impacts other aspects of his life and to seek help with this adaption process if he feels it is necessary… I wish him well with the ongoing management of his persisting symptoms. I do not think he would benefit from a high intensity pain management program as I think he is otherwise managing himself reasonably well.
[60] JTB, page 239
[61] JTB, page 220
[62] JTB, page 242
Dr Prickett concludes in May 2024 there are no other treatments that would improve the impairment and its impacts and that Mr Hassett “has reached the concept of maximal biomedical improvement”[63]. He notes Mr Hassett has proactively engaged with advice and made motivated efforts around relapse prevention and adjustments to his lifestyle[64].
[63] JTB, page 237
[64] JTB, page 237
Dr Darveniza’s August 2021 report also contains information about Mr Hassett’s treatment up to then. He reports Mr Hassett had seen a clinical psychologist for CBT during 2019 and 2020 with little benefit reported[65]. He strongly recommends Mr Hassett be referred to a psychiatrist for treatment of his depression and to a specialist with expertise in cannabis oil treatments.
[65] JTB, page 69
Mr Hassett’s GP, Dr James Meyer, prepared a report for the proceeding dated 31 May 2024. Dr Meyer has been Mr Hassett’s GP since February 2023[66]. The report is substantially dedicated to answering questions from the Agency based on the historical treatment and assessment reports available to him through the GP practice, which Mr Hassett has been a patient of since July 2021[67]. He also speaks to Mr Hassett’s medicinal cannabis treatment, which is the only treatment Dr Meyer says he has recommended, prescribes and manages[68].
[66] JTB, page 198
[67] JTB, page 198
[68] JTB, page 199
Regarding Mr Hassett’s prior medical records, Dr Meyer concludes that as far as he can tell, Mr Hassett has tried every treatment for CNPS Dr Meyer has knowledge of. He states that the only pharmaceutical treatments of meaningful benefit have been a tricyclic antidepressant and topical lidocaine patches as needed[69]. He states all other treatments were “ceased due to lack of efficacy, as the only truly meaningful treatment for him has proven itself to be the tools and coping skills he learned and developed through psychotherapy and counselling”[70].
[69] JTB, page 199
[70] JTB, page 199
At the hearing, Mr Hassett gave an account of the progression of his impairment and his treatments that is consistent with the above medical evidence. He stated his current medication is limited to cannabis oil and lidocaine patches. He added that he has undertaken physiotherapy and exercise physiology in the past but would have to cancel appointments if he was in pain. Mr Hassett does not provide further details about or records from those treatments.
Based on the evidence 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 Mr Hassett’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 Mr Hassett’s neurological impairment is, or is likely to be, permanent.
Accordingly, Mr Hassett 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 Mr Hassett have substantially reduced functional capacity in a specified life activity area?
Overview and preliminary considerations
Section 24(1)(c) requires that Mr Hassett’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. He need only establish he experiences substantially reduced functional capacity in one life activity area[71]. The Agency contends Mr Hassett has certain reduced functional capacities in some of these activities but does not have substantially reduced functional capacity in any one of them[72].
[71] Mulligan at [56].
[72] JTB, page 4
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”[73]. It deems the applicant to meet the requirements of section 24(1)(c) if one of the three alternative scenarios stated therein applies[74]. 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.
[73] Mulligan, at [77]
[74] Mulligan, at [77]
The Tribunal must first consider in addressing each of the life activity areas whether Mr Hassett’s circumstances are within those sections set out in one of the three alternative limbs of Rule 5.8. If they are, he will be deemed to have a substantially reduced functional capacity[75] and the requirements of section 24(1)(c) are met. If they are not, the Tribunal must go on to holistically assess whether Mr Hassett’s functional capacity is nevertheless substantially reduced in any of the life activity areas applying the test in section 24(1)(c)[76].This approach has been summarised recently in Foster and NDIA[77]:
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.
[75] Mulligan, at [77]
[76] Mulligan, at [76]
[77] [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[78] and the Tribunal’s focus must be on what the person cannot do, not on what the person does not do[79].
[78] Foster, [64].
[79] Mulligan, at [55]-[56]
In practice, the application of Rule 5.8 arises where there is evidence before the Tribunal the applicant uses, or is recommended to be using, assistive technology, equipment - other than commonly used items such as glasses – and/or home modifications, or receives or is recommended to be receiving, assistance from others to participate in the activity.
The Tribunal notes there is limited evidence before it of this nature. Mr Hassett has two grab rails installed, one above his bath and the other in the toilet. He gave evidence of four episodes over the last five or so years of brief and temporary reliance on a four-wheel walker to assist his mobility about the home. He stated that he also uses it when taking the washing outside when he has a pain flare up. Otherwise, it is kept in another part of the house, away from the main living areas. The rails and walker were recommended by the workers compensation rehabilitation provider[80]. Mr Hassett stated that a mobility scooter, medical bed and massage chair would also assist him, however Ms Sale does not recommend these items. Ms Sale recommends four minor items of relevant AT and equipment: a front loader washing machine stand (mobility), recliner chair (social interaction), Thermomix (self-care) and voice to text software (communication)[81].
[80] TB, page 188
[81] JTB, page 288
There is some evidence before the Tribunal of Mr Hassett requiring assistance of Mrs Hassett in the domains of self-care and mobility. However, based on the evidence and reasons below, the Tribunal finds that such assistance is not usually required in relation to the full range of tasks and actions in those activity areas.
What is the nature and extent of Mr Hassett’s symptoms?
The Tribunal understands Mr Hassett’s claims in essence to be that he lives with pain and related symptoms of his impairment and those symptoms substantially reduce his functional capacity to conduct daily life activities in one of more of the six activity areas in section 24(1)(c).
To address that case, the first step for the Tribunal is to assess the evidence about the nature and extent of Mr Hassett’s symptoms and reach findings of fact about them.
The Tribunal accepts that Mr Hassett’s current symptoms are as listed by Ms Sale in her report and drawn from medical reports provided to her and the Tribunal[82]:
·chronic widespread neuropathic pain affecting his back and all four limbs
·hypersensitivity of the feet and toes
·pins and needles to the lower legs including the feet
·neuropathic pain to the arms, hands and fingers (with the exception of his ring finger)
·spontaneous burning and stabbing symptoms of the upper and lower limbs
·occasional symptom flare-ups resulting in hospital admission
·flare-up in pain and symptoms with repetitive activity
·intolerance for cold
[82] JTB, page 267
Dr Prickett also notes that Mr Hassett has described to him experiencing general fatigue and activity related flares in pain and stiffness”[83]. Dr Prickett’s opinion is that the symptom burden is persistent[84].
[83] JTB, page 237
[84] JTB, page 236
The Tribunal observed, as have several experts whose reports are before the Tribunal, Mr Hassett’s presentation to be candid and unembellished. That said, it also found him to be unforthcoming about the frequency with which he experiences debilitating levels of symptoms. This is a very relevant consideration in the Tribunal’s assessment of his functional capacity. The Tribunal must make a detailed assessment of what Mr Hassett can and cannot do, and as that is fluctuating, it must be equally detailed in its attempts to understand the frequency and causes of symptoms that are so intense as to reduce his functional capacity.
The Tribunal accepts on a holistic and balanced assessment of the evidence before it that Mr Hassett lives with symptoms of his CNPS daily. However, as to the intensity of those symptoms, what led to a bad day and how often he had one, the evidence before the Tribunal is somewhat unclear and contradictory. This is not to suggest that Mr Hassett was doing anything other than his best to inform the Tribunal about his symptoms and their impact. Ms Sale, who also found Mr Hassett to be unforthcoming during her assessment in this regard, said at hearing that in her experience it is not uncommon for people to be able to talk about the triggers leading to a bad day and have difficulty putting a figure on how many bad days or a percentage of bad days they would have.
Dr Darveniza in August 2021 reports that “some days Mr Hassett may wake up pain free”[85]. The position is corroborated by Ms Sale, who states that Mr Hassett reported to her in August 2024 that he wakes most mornings without pain[86].
[85] JTB, page 69
[86] JTB. Page 268
This is contradicted by Mr and Mrs Hassett in their written statements.
Mr Hassett wrote in April 2024 his pain will “primarily be 3 out of 10 at all times” and increase throughout the day with activity[87]. Mrs Hassett says that “David’s pain will sit at approximately 3-4/10 all the time”[88]. Further, the evidence from Mr Hassett at hearing and as reported to Ms Sale[89], is to the effect that through the conduct of activities throughout the day, his pain will rise to a high level. Mr Hassett told Ms Sale that by the end of the day his pain is at a level of 7 out of 10, where 10 is intolerable. Mrs Hassett is more circumspect in her statement, saying that Mr Hassett’s flares from household duties such as vacuuming and driving the car or cold weather, “are sporadic in nature”[90].
[87] JTB, page 195
[88] JTB, page 193
[89] JTB, page 268
[90] JTB, page 193
At hearing, Mr Hassett spoke of exploring new work opportunities, in 2020, after treatment of his impairment had concluded. The Tribunal accepts that Mr Hassett told prospective employers he could not guarantee full time work because he could not lift or be in the cold and could be snappy at work if he was in pain. The Tribunal deduces from this that nonetheless there are days where Mr Hassett’s is in negligible pain.
This is further supported by Ms Sale, who stated that Mr Hassett did not show any outward signs of pain during her assessment. Ms Sale reports she conducted that assessment on a cool winter’s day. The temperature was 12 degrees. The assessment commenced at 10:30 am and concluded after three hours. Ms Sale explained to the Tribunal that the first hour was more sedentary as it involved taking a history and notes. Mr Hassett was sitting on the lounge at that time, interspersed with getting up to demonstrate a movement and then sitting back down again. The next one and a half to two hours was spent moving from room to room and going through different tasks Mr Hassett may be exposed to in those environments. Ms Sale also observed no signs of mental fatigue, impaired concentration or attention[91].
[91] JTB, page 278
Ms Sale was asked to expand on this at the hearing and whether she would expect someone with Mr Hassett’s diagnosis to show no outward signs of pain.
Ms Sale stated that she had completed a significant number of assessments with people with chronic pain or chronic neuropathic syndrome. In such assessments, she often sees people who are in significant pain exhibiting grimacing or wincing, holding an area that is sore or guarding a vulnerable area. She added that towards the end of the assessment, people are also generally more uncomfortable because the assessment is active, and they are typically reporting more pain or discomfort. Ms Sale stated that it is not untypical for such clients to have good and bad days where they have flare ups and Mr Hassett’s function was quite good in terms of what she would have expected, particularly in terms of his mobility.
Mr Hassett’s reply to this was that he wished he had had a flare up on that day so Ms Sale could have witnessed it. He said it was like a lottery. He could wake up fine in the morning and be sore in the afternoon. He had no concerns with Ms Sale’s report.
Mr Hassett was seated on the sofa at home for the duration of the Tribunal hearing. He was offered but denied needing a break after just under two hours of hearing. He said he had taken his CBD oil treatment as he usually would in the morning and was fine. He described the day of a hearing as a good day because he had not moved much. He could feel his feet tingling. He did not advise the Tribunal of any pain during the hearing and did not seek out additional breaks.
Mr Hassett told the Tribunal that on a good day he can undertake domestic chores including cooking, cleaning, vacuuming, mopping, washing, shopping and driving. He can prepare the family dinner. He can strip the beds and wash and hang out to dry towels and sheets. He does not make the beds, however.
At the other end of the spectrum are four episodes in the five or six years to April 2025 where the pain went to Mr Hassett’s back. During these flare ups, the pain was so intense Mr Hassett was taken by ambulance to hospital.
These incidents were explored by the Agency in cross-examination. Mr Hassett told the Tribunal that he only goes to hospital when the pain is in his back, and he cannot move. The Tribunal accepts, based on Mr Hassett’s evidence at hearing and reference to these incidents by Dr Prickett and Mrs Hassett[92], that these four episodes occurred.
[92] JTB, page 194
The Tribunal found Mr Hassett’s accounts of these episodes difficult to follow.
The Tribunal accepts the most recent occurrence was in about July 2024. Mr Hassett was taken to the closest regional hospital. He first told the Tribunal that he was not admitted and was sent home to rest after being told by the hospital it could do nothing for him. He mainly rested in bed for the following one to two weeks.
Counsel for the Agency noted with Mr Hassett that Ms Sale reports he had told her he was treated with ketamine by the hospital. Mr Hassett denied that he had ever been treated with ketamine other than a week’s trial shortly after his surgery in early 2018.
Mr Hassett then told the Tribunal that the episode prior to that occurred in March 2024. He said that on this occasion he was taken by ambulance to the small country town hospital nearest hospital to his home. He said he was given morphine and Endone. That hospital told him not to present there in the future but to attend the larger regional hospital as they could do more for him.
Counsel for the Agency sought to clarify the actions of the hospital in July 2024. Mr Hassett told the Tribunal he was not admitted but given Endone and morphine. Mr Hassett told the Tribunal that Dr Prickett had pre-approved the administration of ketamine by the hospital to Mr Hassett but it was not used on this occasion.
Mrs Hassett described the March 2024 occurrence in her statement as an “intense pain flare up”[93]. It started while they were out with visiting friends. Mr Hassett could not walk, weight bear and required some support from Mrs Hassett[94]. Mrs Hassett was able to work shorter hours on those days to be home in time to collect the children from the bus after school[95]. The Tribunal understands the family moved to a new house in 2024 and Mr Hassett no longer needs to collect the children after school. However, Mrs Hassett’s summary indicates to the Tribunal that she did not stay home to care for her husband as he was recuperating.
[93] JTB, page 194
[94] JTB, page 194
[95] JTB, page 194
Mr Hassett described one such incident when he was at home on his own. He was unable to move or toilet himself or get up to let his wife into the house. The Tribunal does not have sufficient information to make a finding as to when this episode occurred.
Also, somewhat difficult for the Tribunal to understand are Mr Hassett’s symptoms and functionality on the days in between these two extremes.
Broadly, the Tribunal accepts that Mr Hassett does have days where his pain is higher. It accepts there might be no identifiable reason for the increase. It accepts that his pain may be exacerbated by activities of daily living as defined in section 24(1)(c), or activities and that do not strictly fall within the scope of section 24(1)(c) but are nonetheless part of his day-to-day life. The latter may include driving or one of his children taking his hand or jumping on him in play, or a cold breeze hits him.
Mr Hassett told the Tribunal that on such “medium days”, he tries his best to do the same things he does on a good day and to keep active. That he does so is consistent with the following advice from Dr Prickett, in October 2019[96]:
I have encouraged him to continue his efforts of regular physical activity despite pain and to keep up his physical tolerances and try to ignore some of the more unusual aspects of the sensitisation process that presents in his limbs… I think he is otherwise managing his situation as best he can provided he keeps up his level of physical activity despite focussing on gentle regular efforts of exercise and activity and managing his flares in pain without too much reliance on rest and avoidance.
[96] JTB, page 242
The Tribunal understands from the evidence before it that Mr Hassett’s pain may increase during the day in response to activities but mostly resets itself if he has sufficient quality sleep. The Tribunal understands from Ms Sale’s report that Mrs Hassett works full time, and on a usual day, she is gone from 8 am to 5.30 to 6 pm[97] and Mr Hassett undertakes the parental care when the children come home from school.
[97] JTB, page 271
At various points in the hearing Mr Hassett was asked to describe what a “bad day” was like for him. His responses were quite inconsistent.
When first asked this question by the Tribunal, Mr Hassett said that on these days his whole body feels like it is on fire. He might be walking hunched over on the edges of his feet because his feet hurt so much. On such days, his wife takes time off from work or his mother-in-law comes to care for him. During such flare ups, he goes to bed, has baths and curls up into a ball.
He was later asked about his bad days by counsel for the Agency. His responses were variable. He first told the Tribunal that on a bad day he could not do anything. He later said he could do the same household tasks he does on a good day but does them more slowly. If he does washing, for example, he sits on the floor to load the washing machine and uses his four wheel walker to sit on if he needs to hang the washing out. He described the most recent Saturday as a bad day because it was raining, and he did not do much. He stayed in bed with his son watching TV. He seemed at least in some part to be saying the day was bad due to feelings of emotional dissatisfaction. He described another recent bad day as being when he was awake during the night with leg cramps and got up out of bed and rested by the fire so as not to disturb his Mrs Hassett. The following day he went about his usual day comprising small chores and parenting.
Mr Hassett could not be drawn in cross-examination on how often such “bad days” occur. He said it was dependent on what he had done the day before and the weather. Summertime is nice but winter is difficult, and he needs the fire on all the time. He would prefer to live in a warmer climate, but he does not wish to move away from his two children by his previous marriage. Later in his testimony, Mr Hassett spoke of his day-to-day life being getting up, doing a small amount of chores such as vacuuming and washing and tidying the kids toys.
To summarise, the Tribunal makes the following findings regarding the nature and extent of Mr Hassett’s symptoms, the frequency and characterisation of his “good”, “medium”, “bad” days and “intense flare ups”.
(a)On only four days over the last five or six years, since approximately 2019-2020, Mr Hassett has experienced an intense flare up of his symptoms, including intense pain in his back. Such intense flare ups are characterised by Mr Hassett’s symptoms being so debilitating he is taken to hospital by ambulance. He was admitted overnight on one or more of those occasions and then sent home to rest, either the same day or the next. The hospital gave him pain medication to manage his symptoms. He was told on at least two of those occasions by the hospital that they could do nothing for him.
(b)During the one to two weeks following those four episodes, Mr Hassett rested in bed. He experienced some reduction in functional capacity and required some support from Mrs Hassett and/or his mother-in-law to transfer to and from the bath and some use of AT and/or equipment.
(c)Mr Hassett experiences an amount of “bad days”. These days are characterised by the sensation of his whole body being on fire and a high level of pain in his feet. On such days he experiences some reduction in functional capacity and requires some support from Mrs Hassett and/or his mother-in-law and the use of AT and/or equipment. Mr Hassett did not provide a persuasive example of any recent bad days.
(d)There is insufficient information before the Tribunal to make findings about the frequency of such “bad days” other than to conclude they are infrequent and sporadic. There is no persuasive evidence before the Tribunal that Mr Hassett has a succession of bad days.
(e)Almost all of Mr Hassett’s days are either “good” or “medium” days. On such days, he requires minimal to no support from Mrs Hassett and little to no use of AT and/or equipment. Mr Hassett uses techniques of pacing and not over-extending himself, taking medication, keeping warm and having hot baths to maintain functional capacity. On these days, Mr Hassett goes about doing what he usually does, including chores and parenting the children.
(f)Whilst repetitive activity and cold weather can exacerbate Mr Hassett’s symptoms, they do not always do so. He can have a good day under these conditions.
The task of the Tribunal is to now assess how that broad experience translates to his functional capacity in the six statutory activity areas.
The Tribunal approaches addressing these claims against the requirements of section 24(1)(c) by first considering those activity areas where there is either no evidence that Mr Hassett does, or evidence that he positively does not, experience functional impairment as a consequence of his impairment. It then considers those activity areas where there is evidence of reduced functional capacity.
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 Agency contends there is no suggestion that Mr Hassett’s impairments impact his capacity to communicate independently.
Mr Hassett makes no claims that his communication is impacted by his impairment.
Dr Prickett opines that CNPS has no impact on Mr Hassett’s communication ability[98].
[98] JTB,page 237
Ms Sale concludes Mr Hassett is independent in the domain of communication and no formal support is required[99]. She recommends the provision of voice to text software for long-form communication[100] as Mr Hassett reported a tolerance for keying of approximately 30 minutes[101].
[99] JTB, page 265
[100] JTB page 265
[101] JTB, page 278
The Tribunal observed Mr Hassett to communicate effectively throughout the hearing.
Regarding the activity of communication, the Tribunal finds that Mr Hassett’s circumstances are not captured by Rule 5.8. It further finds Mr Hassett’s impairment does not result in substantially reduced function 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.
Mr Hassett makes no claims that his learning is impacted by his impairment.
Dr Prickett opines that there is no impact from CNPS on Mr Hassett’s learning.
Ms Sale states Mr Hassett is independent in learning and no supports are required. She has no OT recommendations in this area[102].
[102] JTB, all at page 265
Regarding the activity of learning, the Tribunal finds that Mr Hassett’s circumstances are not captured by Rule 5.8. It further finds Mr Hassett’s impairment does not result in substantially reduced function capacity to undertake the activity of learning.
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.
Mr Hassett makes no claims that his self-management is impacted by his impairment.
There is no evidence before the Tribunal that Mr Hassett has reduced capacity to manage his life arising from his impairment. To the extent his evidence touched on this activity area, the Tribunal observes Mr Hassett can make decisions about household management, medical treatment, these Tribunal and his workers’ compensation proceedings and how to pace himself with tasks throughout the day.
Dr Prickett does not comment on Mr Hassett’s capacity for self-management.
Ms Sale concludes that Mr Hassett is independent in this domain and no supports are required[103]. She reports he organises his medical appointments manages his finances and coordinates joint custody of his eldest children[104].
[103] JTB, page 265, 285
[104] JTB, page 285
Regarding the activity of self-management, the Tribunal finds that Mr Hassett’s circumstances are not captured by Rule 5.8. It further finds Mr Hassett’s impairment does not result in substantially reduced function capacity to undertake the activity of self-management.
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.
The Agency submits 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. The Tribunal notes this submission follows the opinion of the former AAT in Madeline[105] and in the Tribunal’s view, is the correct approach.
[105] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine)
Mr Hassett’s evidence does demonstrate some reduction in his functional capacity in this activity area. He explained, and the Tribunal accepts, he withdraws himself from social situations because he does not want to be around other people when he is in pain. He explained that he gets snappy with people when he is in pain.
There is otherwise significant evidence before the Tribunal that Mr Hassett is socially engaged. That evidence is across his oral testimony and documents and demonstrates Mr Hassett has sustained relationships with his wife, his six sons, his siblings, parents and his wife’s parents. He socialises regularly online and occasionally visits friends. This is not to dismiss Mr Hassett’s sadness at his reduced opportunities for outdoor recreation with his family and for social interaction through work. However, as understandable as his feelings are, applying the above principles they are matters to which the Tribunal should give only marginal weight in this assessment. The Tribunal notes from Ms Sale’s report that Mrs Hassett encourages Mr Hassett to leave the house and build social connections[106].
[106] JTB, page 279
Ms Sale notes that Mr Hassett denied any difficulties talking to others and meeting new people[107].
[107] JTB, page 279
Regarding the activity of social interaction, the Tribunal finds that Mr Hassett’s circumstances are not captured by Rule 5.8. It further finds Mr Hassett’s impairment does 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”:[108]
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.[108] Madelaine at [104]–[105].
Mr Hassett reports in his May 2023 statement[109] that he has a grab rail in the toilet and also above the bath. This is apparent from the photos in Ms Sale’s report[110]. Ms Sale does not mention whether he used the rails during task simulation in her assessment.
[109] JTB, page 188
[110] JTB, page 274 for the bath
Mr Hassett reported to Ms Sale that he can walk for more than 20 minutes, or one km, without taking a break[111].
[111] JTB, page 269
Ms Sale observed Mr Hassett as mobilising unaided around his home at a reasonable pace. He used stairs without reaching for the handrail for support. He mobilised around his yard with thick grass and an uneven surface. He demonstrated reaching shelves of various heights, squatting, crouching and bending as required to reach items near to or on the ground.
Ms Sale reports Mr Hassett demonstrated full function range of movement in all limbs, neck, shoulder and trunk[112]. He denied any restrictions in movement and demonstrated hypermobility to his hips, knees and ankles.
[112] JTB, page 277
Ms Sale confirmed at hearing that she observed Mr Hassett was able to carry a 10kg pack of 24 drink cans into the house, lifting them from ground level, and carrying the slow cooker. She noted some favouring of his thumbs and using his body to take the weight and that he was able to carry the loads safely. She observed him chopping potatoes and handling items of clothing, getting clothes out of the washing and hanging them on the line. She observed Mr Hassett as demonstrating good functional dexterity of the hands and fingers.
Ms Sale notes that Mr Hassett denied any prior falls and that he did not present at risk of falls[113].
[113] JTB, page 280
Ms Sale opined that Mr Hassett did not demonstrate a clinical need for a walking stick but may require walking stick or walker during flare up periods[114]. The Tribunal has referenced Mr Hassett’s testimony regarding his occasional use of a four-wheel walker, above.
[114] JTB, page 295
She observed him to be independent with car transfers[115].
[115] JTB, page 281
In Dr Prickett’s opinion, Mr Hassett experiences activity related flares which limit his mobility and gross motor skills[116].
[116] JTB, page 237
The Tribunal accepts Mr Hassett modifies how he mobilises by pacing and not overextending himself. It accepts this includes not going out of the house for long walks and his need for the four-wheel walker during the four episodes of extreme flare up and its occasional use to help him hang out the washing. It accepts that when carrying heavy items Mr Hassett will modify his grip and use his body to take the weight of the item. However, other than when he has an intense flare up or is otherwise having symptoms approaching this very high of severity, there is no one task he forgoes altogether, or for which he requires AT, equipment or in person supports to be able to carry out the task as a whole. It considers these 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 Mr Hassett does not usually require assistance from other people, assistive technology, equipment or home modifications to participate in the activity of mobility or to perform tasks or actions required to undertake or participate in the activity of mobility.
The Tribunal finds Mr Hassett’s circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied that the reduction in Mr Hassett’s functional capacity to undertake the activity of mobility is substantial. Accordingly, the Tribunal finds Mr Hassett’s impairments do 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.[117]
[117] Access Guideline, 8.
Dr Prickett’s opinion is that Mr Hassett is able to perform his self-care[118]
[118] JTB, page 237
The Tribunal has outlined Mr Hassett’s evidence above as to his capacity for self-care. The Tribunal accepts that on four days over the last five to six years, Mr Hassett’s symptoms were so debilitating he was unable to carry out the activity of self-care.
The Tribunal accepts that in the one to two weeks following those four episodes, Mr Hassett required a degree of support with some self-care tasks. These included help with getting in and out of the bath and getting dressed and undressed, but did not extend to toileting. However, the information before it is otherwise limited such that it cannot be satisfied about any support he required with self-care in the days following these four episodes.
Ms Sale’s opinion is that Mr Hassett is independent in toileting. She observed Mr Hassett transfer in and out of the bath independently and able to replicate the task of washing all body areas[119]. Mr Hassett denied any difficulties with washing and drying himself.
[119] JTB, page 282
Ms Sale observed Mr Hassett as independent in dressing and undressing other than to note his reported difficulties with tight fitting garments such as thermals due to hand pain and is dependent on Mrs Hassett’s assistance with such items[120]. Mr Hassett told the Tribunal that he has modified his clothing to avoid jeans. He wears track pants and shoes without laces as he finds their easier to manage. Ms Sale observed Mr Hassett as wearing track pants and thermals on the day of the assessment[121].
[120] JTB, page 282
[121] JTB, page 270
Ms Sale observed Mr Hassett as independent with shaving, brushing his hair and cutting his nails.
At hearing, Mr Hassett referred to a time when his symptoms were exacerbated and his mother-in-law provided support to him getting in and out of the bath. The Tribunal has no further details however as to the context, when and for how long that occurred.
Ms Sale observed Mr Hassett making himself a coffee, chopping and peeling vegetables, accessing vegetables from the fridge and accessing the slow cooker for the family meal for six[122]. She noted him as able to make simple meals for himself[123]. She notes Mr Hassett reported his tolerance for cooking is considerably reduced in the evening and Mrs Hassett assumes these tasks for the family[124]. He is independent with online shopping[125]
[122] JTB, page 283
[123] JTB, page 283
[124] JTB, 283
[125] JTB, page 284
Regarding cleaning, Ms Sale observed Mr Hassett is independent with light cleaning including vacuuming and wiping surfaces. He manages these activities by pacing himself throughout the day.
The evidence before the Tribunal as to whether Mr Hassett can carry out changing his bedding is conflicting. Ms Sale states in her report that Mr Hassett relies on Mrs Hassett to wash and change the bed sheets. This evidence was contradicted by Mr Hassett at the hearing, as stated above. He added that he had not made the beds for the family in a long time. This contradiction was discussed with Ms Sale, who revised her opinion to conclude Mr Hassett would be able to remove the bed linen and tidy beds. She was inconclusive regarding his capacity to lift the mattress to make a bed.
The Agency submits that on balance the evidence suggests that making a bed is something that Mr Hassett has not done for many years and does not rise as high as something he cannot do. It submits that the focus in the assessment under section 24(1)(c) must be on what Mr Hassett can and cannot do for himself, not what he can and cannot do for others. The Tribunal agrees with this submission. The Agency submits and the Tribunal agrees that the fact Mrs Hassett undertakes some of the heavier housework does not necessarily mean Mr Hassett cannot perform those tasks. That a person does a task differently such as by modifying their grip or how they bear weight, or by pacing themselves or taking breaks, does not mean the person cannot do the task.
The Tribunal’s view is that there is insufficient evidence for it to be satisfied the task of making his bed is a task that he cannot do on a good or medium day. In reaching this finding it notes there no reliable evidence clearly directed to the question of whether he can make his own bed in a manner and frequency sufficient to maintain hygiene and take care of his health. The Tribunal notes there is some evidence before it that affirms Mr Hasett’s capacity to carry heavy items over short distances.
The Tribunal finds that on a good and medium day, Mr Hassett generally manages to bathe, groom, dress, eat, wash his clothes and carry out light cleaning. It accepts he requires support for heavy cleaning tasks on a bad day. The Tribunal accepts Mr Hassett modifies how he conducts his self-care by pacing himself or by how he carries or grasps an item to ensure his safety and not make his symptoms worse. However, there is no one task he forgoes altogether, or for which he requires AT, equipment or in person supports to be able to carry out the task as a whole. The Tribunal considers these 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 Mr Hassett 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 Mr Hassett’s circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied that the reduction in Mr Hassett’s functional capacity to undertake the activity of self-care is substantial. Accordingly, the Tribunal finds Mr Hassett’s impairments do not result in substantially reduced functional capacity to undertake the activity of self-care.
Conclusions on substantially reduced functional capacity and the disability requirements
The Tribunal is not satisfied Mr Hassett’s neurological impairment results in substantially reduced functional capacity to undertake the any of the activities in section 24(1)(c). Accordingly, the requirement in s 24(1)(c) is not met.
It follows that Mr Hassett does not meet the disability requirements in section 24.
Does Mr Hassett meet the early intervention requirements in relation to his physical impairment?
It remains to be considered whether Mr Hassett’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 Mr Hassett to meet the early intervention requirements.
The Tribunal has found above that Mr Hassett meets the requirements of section 25(1)(a)(i) of the Act by virtue of his neurological impairment.
The next question is whether there are early intervention supports likely to reduce his future needs for supports in relation to his 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.
Mr Hassett 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 to support a conclusion that there are early intervention supports that are likely to reduce his future support needs. This is because, on the medical evidence, Mr Hassett’s condition is not so much one that is degenerative or deteriorating, but one that is resistant to treatment[126].
[126] From the Respondent’s opening and closing submissions at hearing
For the reasons below, the Tribunal finds the evidence before it is not sufficient for the Tribunal to be satisfied Mr Hassett meets the early intervention requirements.
In the earlier section of this decision on “assessment of permanency”, the Tribunal has discussed in detail the evidence and its reasons for accepting Mr Hassett’s impairment and its underlying condition are permanent, or likely to be permanent. It relies on that evidence and assessment here. In particular, the Tribunal emphasises the unequivocal evidence from Dr Prickett that the likely trajectory is the persistence of the neurological impairment in line with its previous and current symptomatology.
Dr Prickett has been resolute in his opinion over a period of at least five years that Mr Hassett has reached maximal biomedical improvement, there are no further reasonable and necessary medical interventions, there are no current therapies that are recognised to reduce symptom burden, and his condition is medically unresponsive. The Tribunal notes Dr Prickett had the opportunity to varying his opinion, in May 2024, and after three of the four intense pain flare episodes, but did not. On the Tribunal’s reading of that report, Dr Prickett does not see Mr Hassett’s intense flare ups as a worsening of his condition. His underlying medical hypothesis is also unchanged.
Mr Hassett’s GP, Dr Meyer, is also of the opinion there has been little notable change in Mr Hassett’s condition over several years, other than his improved capacity for coping and living with it[127]. He opines that there has been no significant notable improvement nor worsening of the impacts of the CNPS since 2020[128]. The evidence as a whole indicates to the Tribunal that Mr Hassett’s impairment and associated symptomatology has been largely constant since approximately 2019.
[127] JTB, page 198
[128] JTB, page 200
Dr WGC Patrick, the General, Vascular and Trauma Surgeon and Medico-Leal Specialist who conducted an assessment of Mr Hassett for the purposes of his workers compensation claim stated in February 2020 that Mr Hassett is likely to experience a significant degree of ongoing residual symptoms into the future[129].
[129] JTB, page 226
From this evidence, the Tribunal concludes the likely trajectory of Mr Hassett’s impairment is persistent and stable and continuing forward in much the same way as it has been over the past five to six years.
The Tribunal considers if there were to have been any preventative supports, these would be of the nature of capacity building psychosocial support. In so saying, the Tribunal relies on Dr Prickett’s recommendation in May 2024 that the focus on Mr Hassett’s “interventions” going forward should be on preventing “further deterioration in Mr Hassett’s confidence in maintaining his independence despite a persisting symptom burden” rather than expecting any significant improvement in symptomatology” [130]. Dr Prickett observes only generally that Mr Hassett’s support will need to be constant[131], but does not detail the nature of the support he has in mind here, whether that be medical, disability related or even financial. The Tribunal has also had regard to Ms Sale’s brief mention of possible OT supports to assist with pacing techniques.
[130] JTB, page 236
[131] JTB, page 237
There is no further evidence before the Tribunal that progresses this argument. Both Dr Prickett and Dr Meyer describe Mr Hassett as working positively to improve and maintain his functionality. The Tribunal has no evidence before it of Mr Hassett’s psychotherapy treatment and Mr Hassett did not speak of it during the hearing.
Further, the types of supports Mr Hassett did suggest would benefit him are in the nature of assistive technology and equipment to be used for the long term as well as financial supports, the latter being outside the scope of the NDIS.
For these reasons, the Tribunal is not satisfied the provision of early intervention supports to Mr Hassett is likely to benefit him by reducing his future needs for supports in relation to his disability. Accordingly, the requirement in section 25(1)(b) is not met and it follows from there that Mr Hassett does not meet the early intervention requirements in section 25 of the Act in relation to his neurological impairment.
As the Tribunal has concluded Mr Hassett does not meet the requirements for access to the NDIS, it must affirm the decision under review.
DECISION
The decision under review is affirmed.
Date(s) of hearing: 1 April 2025 Applicant: Mr David Hassett Solicitors for the Respondent:
Counsel for the Respondent:
Mr J Barlow, Maddocks Lawyers
Ms A Douglas-Baker
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