Hasson and National Disability Insurance Agency

[2022] AATA 34

Hasson and National Disability Insurance Agency [2022] AATA 34 (14 January 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2019/6019

Re:Faris Hasson

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:14 January 2022

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE AGENCY – access to the scheme – whether applicant meets the disability and early intervention requirements – where Tribunal finds impairment is permanent – right-hand deformity and dysfunction – whether impairment results in substantially reduced functional capacity – whether provision of early intervention supports is likely to reduce the applicant’s future needs for supports in relation to disability – decision under review affirmed

LEGISLATION

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

National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 21-25, 209

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12)

Operational Guideline – Access to the NDIS

REASONS FOR DECISION

Dr L Bygrave, Member

14 January 2022

INTRODUCTION

1. On 22 June 2018, Mr Faris Hasson applied to become a participant in the National Disability Insurance Scheme (the NDIS). Dr Husam Alkurdi (general practitioner) listed Mr Hasson’s impairments in the NDIS access request form as:

   DM [diabetes mellitus] type 2 – diabetic retinopathy

   Glaucoma

   Knee osteoarthritis

   Psoriatic poly arthritis

   Right hand old injury

   Back pain[1]

   [1] Exhibit T-T6, page 31.

2. On 4 March 2019, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the NDIA) decided Mr Hasson did not meet the access criteria specified in sections 21–25 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).

3. Mr Hasson requested an internal review and, on 18 September 2019, the NDIA affirmed the decision (the internal review decision).

4. Mr Hasson subsequently made an application for review of the internal review decision to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal).

5. The matter was listed to be heard by the Tribunal via videoconference on 13 December 2021. Mr Hasson did not attend the hearing; however, in his absence, his disability advocate provided oral submissions and consented for the matter to be determined ‘on the papers’.

   RELEVANT LEGISLATION

6. The Parliament of Australia expressly provided objects and principles in the Act to provide guidance on the interpretation of the statute.

7. The objects of the Act are outlined in section 3 and include giving ‘effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12)’. Paragraph 3(3)(b) of the Act further provides that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

8. The general principles guiding actions under the Act are outlined in section 4 and include:

   ·affirming that people with disability should be supported to participate in and contribute to social and economic life to the extent of their ability; and

   ·promoting positive personal and social development of people with disability.

9. The Minister may also make rules prescribing matters under subsection 209(1) of the Act. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Participant Rules), which form part of the legislation.

10. Operational Guidelines written by the CEO of the NDIA also assist staff to make decisions in accordance with the Act. I note that Operational Guidelines represent government policy and should be applied unless there is good reason not to do so.[2]

    [2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.

    The access criteria

11. The access criteria to become a participant in the NDIS are summarised in subsection 21(1) of the Act, which states:

    (1)A person meets the access criteria if:

    (a)the CEO is satisfied that the person meets the age requirements (see section 22); and

    (b)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

    (c)the CEO is satisfied that, at the time of considering the request:

    (d)the person meets the disability requirements (see section 24); or

    (e)the person meets the early intervention requirements (see section 25).

12. Section 24 of the Act sets out the criteria to meet the disability requirements as:

    (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 to one or more impairments attributable to a psychiatric condition; 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, or psychosocial functioning in undertaking, 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.

13. The early intervention requirements to access the NDIS are stipulated in section 25 of the Act as follows:

    (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; or

    (ii)has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

    (iii)is a child who has developmental delay; 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.

    Note:In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

    (2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

    (3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

    (a)as part of a universal service obligation; or

    (b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

14. The relevant Operational Guideline is the Operational Guideline – Access to the NDIS (the Access Operational Guideline); chapter 8 of the Access Operational Guideline is titled The Disability Requirements and chapter 9 is titled The Early Intervention Requirements.

    EVIDENCE

15. The evidence before the Tribunal comprises:

    ·a written statement of lived experience from Mr Hasson; and

    ·reports from medical practitioners who have examined or treated Mr Hasson.

16. At the outset, I note Mr Hasson is applying to access the NDIS solely on the basis of ‘the disability in his right hand’.[3] As a consequence, I have only considered the evidence relating to his right-hand injury and not the other medical conditions listed in his NDIS access form.

    [3] Exhibit A1, paragraph 5.

    The evidence of Mr Hasson

17. In a statement of lived experience dated 5 November 2020, Mr Hasson wrote:

    ·He was born in Baghdad, Iraq and is 61 years old.

    ·He came to Australia with his wife and their three children in 2015, and they continue to live together as a family in a rental property in Sydney, New South Wales.

    ·He was shot in the right hand in 2006. His right hand ‘has four fingers damaged and they are without bones and two have shrapnel inside’ and he is able to move his wrist but has very limited movement and function.[4]

    ·Due to his injury, he is ‘unable to undertake daily activities where both hands are required’ and needs assistance with shaving, showering, and holding a pen and a cup.[5]

    ·His wife helps him with dressing and showering, and prepares his meals.

    ·He applied to be a participant to the NDIS to be ‘more independent’ from his wife and children, and to ‘regain access to the community’.[6]

    [4] Exhibit A1, paragraph 8.

    [5] Exhibit A1, paragraph 12.

    [6] Exhibit A1, paragraphs 24 and 25.

    Medical evidence

18. In a medical letter dated 24 September 2018, Dr Agus Kadir (orthopaedic surgeon) provided the following background and opinion regarding Mr Hasson’s right-hand injury:

    He had a gunshot injury to the right hand 12 years ago in Iraq and sustained fracture of the 2nd and 3rd metacarpals with bone loss. There must also be significant soft tissue injury. There is a missing segment of the 2nd metacarpal shaft (about 3-4 cm) and a malunion of the 3rd metacarpal fracture. Both index and middle fingers are shortened. He is unable to flex these fingers but able to extend them. Faris has been functioning with this hand for years. The ring and little finger has normal movement…

    Clinically, he has the shortened index and middle fingers with dorsal complex scar. There is swelling over the 3rd metacarpal. The scar is generally tender but there is no sign of infection or inflammation. The fingers rest in an extended position and he is unable to flex the index and middle fingers. There is no flexor tendons function. The finger is of normal perfusion. He has positive tinel test over the carpal tunnel and the phalen’s test is positive…

    In summary, Faris has a right-hand deformity and dysfunction from previous gunshot injury. This injury is stable… I don’t think he needs any surgical intervention for these injuries…[7]

    [7] Exhibit T-T8, pages 36-37.

19. Mr Hasson underwent an ultrasound and x-ray of his right hand on 27 October 2020. Dr Phillip Segal (radiologist) concluded from the ultrasound that there was ‘echogenic foci in keeping with foreign body’ and suggested an x-ray.[8] The x-ray of Mr Hasson’s right hand showed:

    …a previous fracture through the neck of the third metacarpal. There has been resection of the midshaft and neck of the second metacarpal. There are high density metallic fragments…within the palm as well as scattered foci within the ring and little fingers in keeping with gunshot pellets. Prominent gunshot pellet related to the carpometacarpal joint of the thumb.[9]

    [8] Exhibit A2, page 1.

    [9] Exhibit A2, page 2.

20. In a report dated 5 May 2020, Dr Duraid Haddad (general practitioner) wrote that Mr Hasson suffers from ‘permanent damage to the right hand’ with ‘total loss of function of 3 fingers and the thumb’ and is ‘unable to use the hand to carry or to move object’.[10] Dr Haddad also provided details about Mr Hasson’s other medical conditions, stating that (amongst other matters) he has severe pain in both knees and lower back, and is awaiting an operation for total knee replacement.

    [10] Exhibit A3.

21. In a further report on 2 November 2020, Dr Haddad stated that an operation to Mr Hasson’s right hand in 2006 was unable to restore his hand function, and he requires help with his day-to-day activities including showering and self-care.

22. On 11 January 2021, Mr Hasson attended Dr Rosemary Prosser (hand therapist) for a functional hand assessment. Dr Prosser provided a report also dated 11 January 2021, in which she set out the following history of Mr Hasson:

    ·His right hand was injured by shrapnel in 2006 when he was in the military. He subsequently received some ‘local’ treatment, but this was ‘basic treatment’ and ‘the only treatment available to him’.[11]

    ·He lives with his wife and their three children; his wife and daughter do the cooking and cleaning which is ‘what Iraqi women usually do’, and men do ‘manual and mechanical work’.[12]

    ·He worked as a delivery driver in Australia in 2017 and 2018 until he fell at work and sustained injury to both knees. He was expected to have knee surgery in August 2021.

    ·He reported that:

    ohe has ‘pain in his hand and cannot control movement of his fingers’,

    ohe is ‘weak in grip’ and ‘needs his wife or daughter to do all his personal care including washing, shaving and dressing’, and

    ohe ‘can’t do anything’ and all he does is ‘eat what his wife cooks him and then sits on the couch all day’.[13]

    [11] Exhibit R1, page 1.

    [12] Exhibit R1, page 1.

    [13] Exhibit R1, page 1.

23. Dr Prosser provided a detailed report based on her examination of Mr Hasson’s right hand, including his range of movement and grip strength, and his ability to complete 21 daily functional tasks as outlined in the Soloman Hand Function Test.  Dr Prosser recorded that Mr Hasson could achieve most tasks but took longer with the right hand. She wrote he reported that ‘if he uses his left hand in combination with the right he can achieve some of these tasks, like pouring from a jug or lifting a full cup’.[14] She also reported that he can ‘turn a key in a lock with his left hand’, ‘use a screwdriver in his left hand’, ‘do shirt buttons’ although he is slower to achieve this, can ‘only write for short periods’ and has ‘difficulty doing up small nuts’.[15]

    [14] Exhibit R1, page 4.

    [15] Exhibit R1, page 4.

24. Dr Prosser opined that, despite his loss of motion and strength, Mr Hasson ‘can manage his own self-care’.[16] Although he reported relying on his wife and daughter, Dr Prosser stated her belief that he could shower himself and use an electric shaver. She noted that his dressing difficulties could be addressed by wearing clothes that don’t require buttons (such as polo shirts) or using velcro fastening.

    [16] Exhibit R1, page 5.

25. Regarding self-management, Dr Prosser observed that Mr Hasson ‘has had his hand injury since 2006’, and was able to manage himself with some help from his wife until 2018.[17] She further noted he already uses his left hand ‘to compensate for the lack of function of his right hand’.[18]

    [17] Exhibit R1, page 5.

    [18] Exhibit R1, page 6.

    Findings of fact

26. Based on the evidence before the Tribunal, I make the following findings of fact:

    ·Mr Hasson sustained a right-hand injury in 2006 from gunshot. This injury has resulted in loss of physical function to the second and third metacarpals and thumb in the right hand.

    ·There are no known or available treatments, such as surgery, that would remedy the impairment in Mr Hasson’s right hand.

    ·Mr Hasson also has other medical conditions that affect his functional capacity to participate in employment and/or social events.

    ·Mr Hasson has reduced functional capacity related to his right-hand impairment. However, he was able to maintain paid employment until he suffered injury to his knees in 2018.

    CONSIDERATION

27. There is no dispute that Mr Hasson satisfies the age requirements in section 22 and the residence requirements in section 23 of the Act. The issues in dispute – and therefore the issues for determination by the Tribunal – are whether Mr Hasson meets the access criteria set out in section 24 of the Act (the disability requirements) or in section 25 of the Act (the early intervention requirements) in relation to his right-hand injury.

    The disability requirements

28. To satisfy the disability requirements in subsection 24(1) of the Act, Mr Hasson must meet all the conditions in paragraphs (a) to (e).

29. The NDIA accepts that Mr Hasson’s right-hand injury satisfies the requirements in:

    ·paragraph 24(1)(a) of the Act, that he has a disability that is attributable to an impairment;

    ·paragraph 24(1)(b) of the Act, that his impairment is permanent; and

    ·paragraph 24(1)(d) of the Act, that his impairment affects his capacity for social or economic participation.

30. Consistent with my findings of fact in paragraph 26, I agree with the NDIA that Mr Hasson meets the requirements in paragraphs 24(1)(a), (b) and (d) of the Act. In particular, I am satisfied that Mr Hasson’s right-hand injury comprises a disability that is attributable to a physical impairment, and this impairment is permanent and affects his capacity for social or economic participation.

31. I now consider whether he meets the requirements in paragraphs 24(1)(c) and (e) of the Act.

    Does Mr Hassons’s impairment result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication; social interaction; learning; mobility; self-care; self-management?

32. Paragraph 24(1)(c) of the Act requires Mr Hasson to demonstrate that his impairment from his right-hand injury results in substantially reduced functional capacity to undertake any one of the activities specified in subparagraphs (i) to (vi).

33. Paragraph 5.8 of the Participant Rules provides:

    5.8An 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.

1. Further guidance is set out in chapter 8.3.1 of the Access Operational Guideline:

   The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:

   By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.

   In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.

   Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.

   When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age.

   …

   A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity... [emphasis in original]

2. In the NDIS access request form dated 22 June 2018, Dr Alkurdi declared that Mr Hasson required assistance with self-care due to his right-hand injury.

3. Consistent with the reports of Dr Kadir, Dr Haddad and Dr Prosser, I am satisfied that Mr Hasson has ‘right-hand deformity and dysfunction’ due to a gunshot injury in 2006. This injury is ‘stable’ and ‘permanent’. I am further satisfied that while Mr Hasson experiences loss of motion and strength in his right hand, he was able to function with his right-hand injury and remain employed for the subsequent 12 years.

4. Having regard to the comprehensive assessment and report by Dr Prosser on 11 January 2021, I note Dr Prosser recorded Mr Hasson’s ability to achieve most of the daily functional tasks in the Soloman Hand Function Test, albeit he took longer with his right hand. As set out in chapter 8.3.1 of the Access Operational Guideline, I further note that Mr Hasson ‘undertaking a task more slowly or differently to others’ does not mean he is unable to complete the task.

5. I find there is no evidence before the Tribunal, apart of Mr Hasson’s self-reporting, to show he is unable to undertake self-care or self-management in relation to his right-hand injury.

6. Therefore, I am not satisfied Mr Hasson has substantially reduced functional capacity in relation to communication, social interaction, learning, mobility, self-care or self-management as a result of his right-hand injury. I find he does not meet the requirement in paragraph 24(1)(c) of the Act.

   Is Mr Hasson likely to require support under the NDIS for his lifetime?

7. Paragraph 24(1)(e) of the Act states that the person is likely to require support under the NDIS for their lifetime.

8. Chapter 8.5 of the Access Operational Guideline provides the following policy guidance:

   8.5 When is a person likely to require support under the NDIS for their lifetime?

   The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(1)(e)).

   If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person's lifetime, despite the variation (section 24(2)).

   The NDIA is required to consider a prospective participant’s overall circumstances and conclude that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and NDIA [2015] AATA 974 at [153]).

   For example, if a person’s support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.

   When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person’s lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]–[150]).

9. As set out in paragraphs 32 to 39 above, I am satisfied Mr Hasson’s right-hand injury does not result in him having substantially reduced functional capacity to undertake activities in communication, social interaction, learning, mobility, self-care or self-management.

10. It is my view that, in considering the policy in chapter 8.5 of the Access Operational Guidelines, it would be inconsistent to make a finding that a prospective participant is likely to require support under the NDIS for their lifetime where the evidence shows they do not have a substantially reduced functional capacity to undertake activities in communication, social interaction, learning, mobility, self-care or self-management.

11. I find that Mr Hasson does not meet the requirement of paragraph 24(1)(e) of the Act.

    The early intervention requirements

12. The early intervention requirements are set out in section 25 of the Act. Chapter 9 of the Access Operational Guideline explains the purposes of the early intervention requirements as follows:

    Early intervention support is available to both children and adults who meet the early intervention requirements. The intention of early intervention is to alleviate the impact of a person’s impairment upon their functional capacity by providing support at the earliest possible stage. Early intervention support is also intended to benefit a person by reducing their future needs for supports.

13. I now consider whether Mr Hasson meets the early intervention requirements.

14. As set out in paragraph 30 above, I concur with the finding by the NDIA that Mr Hasson’s right-hand injury is permanent. It follows that I find the requirement in paragraph 25(1)(a) of the Act is met. I now consider the requirements in paragraphs 25(1)(b) and (c), and subsection 25(3) of the Act.

    Will the provision of early intervention support benefit Mr Hasson by reducing his future needs for supports in relation to disability?

15. Paragraphs 25(1)(b) and (c) of the Act require the CEO of the NDIA to be ‘satisfied that provision of early intervention supports for the person is likely to benefit the person’ in various ways. Paragraph (b) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by reducing the person’s future needs for supports in relation to disability. Paragraph (c) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by mitigating or alleviating the impact of the person’s impairment, preventing the deterioration of functional capacity, improving functional capacity, or strengthening the sustainability of informal supports available to the person.

16. Paragraph 6.9 of the Participant Rules identifies the issues the CEO of the NDIA would consider in relation to whether the provision of early intervention supports is likely to benefit a person under paragraphs 25(1)(b) and (c) of the Act:

    6.9 In deciding whether provision of early intervention supports is likely to benefit

    
    

    the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:

    (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.

17. The Access Operational Guideline at paragraph 9.3 states:

    9.3 Determining whether early intervention supports are likely to benefit the person

    The NDIA must be satisfied that the provision of early intervention supports (except for children with developmental delay) is likely to benefit the prospective participant by:

    ·     reducing the person’s future needs for supports in relation to disability (section 25(1)(b)); and

    ·     achieving one or more of the following four outcomes:

    i.mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake one or more activities (section 25(1)(c)(i)); or

    ii.preventing the deterioration of such functional capacity (section 25(1)(c)(ii));
    
    

    iii.improving such functional capacity (section 25(1)(c)(iii)); or
    
    

    iv.strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer (section 25(1)(c)(iv)).

    When considering whether the provision of early intervention supports is likely to benefit the person, the NDIA should consider:

    ·     the likely trajectory and impact of the person's impairment over time (rule 6.9(a) of the Becoming a Participant Rules); and

    ·     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 (rule 6.9(b) of the Becoming a Participant Rules); and

    ·     evidence from a range of sources, such as information provided by the prospective participant or their family members or carers. The NDIA may also in some cases seek expert opinion (rule 6.9(c)) of the Becoming a Participant Rules).

    When considering if a person is likely to benefit from early intervention supports, the NDIA may consider factors such as the time elapsed since the onset or diagnosis of the disability and whether there has been a recent, or impending, significant change in the person's impairment or disability.

18. There is no medical evidence before the Tribunal that sets out any potential benefits of early intervention on the impact of Mr Hasson’s right-hand impairment, such as early intervention benefitting his functional capacity and reducing his future needs for supports. Therefore, I find there is insufficient evidence to be satisfied that early intervention supports will be likely to benefit Mr Hasson in the ways specified in paragraphs 25(1)(b) and (c) of the Act.

    Is early intervention support most appropriately funded or provided through the NDIS?

19. Subsection 25(3) of the Act operates in circumstances where, even if Mr Hasson meets subsections 25(1) and (2), he may not meet the requirements of early intervention support because the support is not most appropriately funded or provided through the NDIS and is more appropriately funded or provided through other general systems of service delivery or support services, such as through the health system.

20. As set out in paragraph 51, I am not satisfied that early intervention supports will likely benefit Mr Hasson in the manner required by paragraphs 25(1)(b) and (c) of the Act. I therefore cannot find that his supports are most appropriately funded by the NDIS.

21. Accordingly, I find that Mr Hasson does not meet the early intervention requirements to enable him to become a participant in the NDIS.

    CONCLUSION

22. As I am satisfied Mr Hasson does not meet the access criteria in either section 24 or section 25 of the Act, I find the internal review decision made on 18 September 2019 is correct.

    DECISION

23. The decision under review is affirmed.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 14 January 2022

Date(s) of hearing:	13 December 2021
Advocate for the Applicant:	Mr Zaya Toma, Multicultural Disability Advocacy Association
Counsel for the Respondent:	Ms Katrina Musgrove, Key Chambers
Solicitors for the Respondent:	Mr Brendan Richardson, National Disability Insurance Agency