Henderson-Kelly and National Disability Insurance Agency (NDIS)
[2025] ARTA 490
•29 April 2025
Henderson-Kelly and National Disability Insurance Agency (NDIS) [2025] ARTA 490 (29 April 2025)
Applicant:Lachlan Henderson-Kelly
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2022/3585
Tribunal: Senior Member A Clues
Place:Hobart
Date:29 April 2025
Decision:The Tribunal affirms the decision under review.
………….SGD……………..
Senior Member A Clues
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Section 30 revocation of participant status – age and residence requirements met – whether disabilities are impairments – whether impairments are permanent – substantially reduced functional capacity – disability and early intervention requirements not met – decision affirmed
Legislation
the National Disability Insurance Scheme Act 2013 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016Administrative Review Tribunal Act 2024 (Cth)
Cases
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11
Madelaine and National Disability Insurance Agency [2020] AATA 4025
FBJV and the National Disability Insurance Agency [2021] AATA 913
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v KKTB [2022] FCAFC
Grasser and National Disability Insurance Agency [2024] AATAJourfian and National Disability Insurance Agency [2020] AATA 1883
Secondary Materials
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Operational Guidelines – Applying to the NDIS dated 10 December 2024
Statement of Reasons
The applicant is a 22-year-old male (DOB 7 November 2002). On 30 June 2016, the applicant was granted access to the National Disability Insurance Scheme (NDIS) on the basis that the early intervention requirements under section 25 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) were met in relation to a complex congenital heart condition that he was born with.[1]
[1] JTB 436.
A delegate of the respondent conducted a reassessment of the applicant’s eligibility to remain an NDIS participant. On 12 November 2021, the respondent determined that the applicant no longer met early intervention requirements under section 25 of the NDIS Act, nor did he satisfy the disability requirements under section 24 and accordingly, under section 30 the applicant was no longer an NDIS participant (the original decision).[2]
[2] JTB 221–225.
On 13 January 2022, the applicant requested an internal review of the original decision.[3] On 20 April 2022, the respondent confirmed the original decision (the internal review decision).[4] On the same date an application for review of the internal review decision was lodged on behalf of the applicant with the Administrative Appeals Tribunal (AAT).[5]
[3] JTB 222.
[4] JTB 17–26.
[5] JTB 5.
The application for review was lodged with the AAT prior to 14 October 2024 when the AAT became the Administrative Review Tribunal (ART) (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) proceedings that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceedings before 14 October 2024, is taken to have been done by the Tribunal.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Back on Track Act) commenced on 3 October 2024 and made significant amendments to the NDIS Act. As the applicant’s appeal for review was made before 3 October 2024 sections 126 and 127 of the Back on Track Act, provides that sections 24, 25 and 30 of the NDIS Act apply as they existed before the commencement of the Back on Track Act.
ISSUES
The issues before the Tribunal are whether the applicant:
a)satisfies the disability requirements in section 24;
b)satisfies the early intervention requirements in section 25;
c)should have his status as a participant revoked under section 30.
LEGISLATIVE FRAMEWORK
The following is an overview of the NDIS decision making framework insofar as it relates to the applicant’s application for review.
Section 30 of the NDIS Act states:
(1) The CEO may revoke a person’s status as a participant in the National Disability Insurance Scheme if:
(a) the CEO is satisfied that the person does not meet the residence
requirements (see section 23); or
(b) the CEO is satisfied that the person does not meet at least one of the following:(i) the disability requirements (see section 24);
(ii) the early intervention requirements (see section 25).
(2) The CEO must give written notice of the decision to the participant, stating the date on which the revocation takes effect.
It is not in dispute, and the Tribunal so finds, that at the time of his application the applicant met the age and residential requirements set down in sections 22 and 23 of the NDIS Act. Therefore, the Tribunal must determine whether the applicant meets the access criteria as set out in section 24 (the disability requirements) or section 25 (the early intervention requirements) of the NDIS Act and if he does not then his status as a participant should be revoked pursuant to section 30.
Section 24 states:
(1) A person meets the disability requirementsif:
(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 support 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).
Section 25 [as it was prior to 3 October 2024] states:
(1) A person meets the early intervention requirementsif:
(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 a 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.
…
(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.
(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.
Subsection 209(1) of the NDIS Act permits the Minister to make rules prescribing certain matters. Section 27 of the NDIS Act provides that the NDIS rules may make provision for determining any matter for the purposes of section 24 and section 25 of the NDIS Act, including methods or criteria, or matters that may, must or must not be taken into account, or circumstances in which a matter can be taken to exist or not exist.
The rules relevant to this application are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules), which form part of the legislation. Relevant to the issue of permanency of an impairment set down at paragraph 24(1)(b), the Access Rules relevantly state:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) 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.
As to the issue of substantially reduced functional capacity as set down in paragraph 24(1)(c), the Access Rules state:
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.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the NDIS Act. The NDIS Operational Guidelines represent government policy. The case law is well established; to the extent that policies are consistent with the legislation, decision-makers should have regard to them unless there are cogent reasons not to.[6] In assessing the applicant’s claim, the relevant Operational Guideline are Applying to the NDIS dated 10 December 2024, (the Operational Guidelines).
[6] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The case law developed in this jurisdiction is also of assistance. In the matter of Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) Mortimer J (as she then was) held:
The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
...No qualitative judgements in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do...[7]
[7] Mulligan [55]–[56].
THE HEARING
On 26 February 2025, the solicitors for the respondent advised the Tribunal that attempts had been made to contact the applicant, and his mother, whom they understood was assisting with the application, to confirm whether they would be calling any witnesses at the hearing. They advised that they had not had success in making contact and requested the Tribunal to list the matter for a directions hearing to confirm with the applicant whether he intended to proceed with the application and if so whether he intended to call any witnesses. On 3 March 2025, the Tribunal held a directions hearing. The solicitor for the respondent appeared. The applicant did not appear. The respondent solicitor advised that no contact had been made with the applicant or his mother and it was unknown whether the hearing was proceeding or whether the applicant intended to call any witnesses. The Tribunal contacted the applicant by telephone during the directions hearing. He advised that he was happy to discuss the matter by phone but he did not have access to his computer. He said he was unaware that the directions hearing had been scheduled for that day and he was unaware that the hearing had been scheduled to take place from 5–7 March 2025. He was advised that the hearing would be proceeding on those dates. He advised that he would give evidence as well as his mother and grandmother. The respondent advised that it intended to call evidence from Mr Stretton (Occupational Therapist). The applicant indicated he would be ready to proceed to hearing on 5 March 2025.
The hearing commenced on 5 March 2025 by Microsoft Teams video. Ms Dempster appeared as counsel for the respondent. The applicant did not appear. The applicant’s grandmother was present. She advised she would be available to give evidence at 2pm on that date. She was unaware of the whereabouts of the applicant. An email was received from the applicant’s mother advising she was unlikely to attend the hearing because of her work commitments. Attempts were made to contact the applicant, those attempts were unsuccessful. The respondent advised the Tribunal that over the course of the proceedings, the applicant had not indicated that he intended to engage with the evidence filed.
The Administrative Review Tribunal Act 2024 (Cth) (ART Act) came into effect on 14 October 2024. Subsection 106(1) of the ART Act provides that the Tribunal may make a decision in a proceeding without a hearing in certain circumstances. Section 106(5) provides:
(5) This subsection applies if:
(a) a party to the proceeding fails to appear at a Tribunal case event that relates to the proceeding; and
(b) the party is not a non - participating party to the proceeding or Tribunal case event; and
(c) the Tribunal is satisfied that the party received appropriate notice of the date, time and place of the Tribunal case event; and
(d) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
The applicant failed to appear at the hearing. The Tribunal was satisfied that he had received appropriate notice of the date, time and place of the hearing. He confirmed on 3 March 2025 that he would attend. Both of his witnesses (namely his grandmother and mother) were aware of the date of the hearing. Further the issues for determination can be adequately determined by the Tribunal in the absence of the parties to the proceeding. Accordingly, with the consent of the respondent, the Tribunal determined that it would make a decision on the papers filed in the matter without a hearing.
The Tribunal took into evidence the documents in the Joint Tender Bundle (JTB) pages 1–713. This decision is based on the evidence contained in that JTB.
BACKGROUND
The applicant is a 22-year-old male. The most recent evidence is a report from Mr Gary Stretton, occupational therapist, dated 18 January 2024. Mr Stretton assessed the applicant at his grandmother’s privately owned home in Rivett, ACT. The applicant advised Mr Stretton that he had been living there “on and off” since 2021 as he has a difficult and strained relationship with his mother. He has a 19-year-old sister, who lives with their mother. The applicant advised he had a partner, who lives with her parents and they are hoping to move in together in time. He is estranged from the other members of his immediate family. He has a small circle of friends with whom he keeps in contact with, in person and online. He receives a disability support pension (DSP). At that time, he was working for two–three hours each Saturday at a childcare centre as a yard person, which involved weeding, cleaning up the yard, blowing leaves, high-pressure water cleaning and moving play equipment to clean under it. His grandmother attended with him to assist and offer guidance.[8] He is currently seeking full-time work and uses the online employment site seek.com.au to submit applications. He is registered with the Disability Employment Service (DES) provider LEAD Employment and with Hays Recruitment. He had recently attended a job interview for a car detailing position.[9]
[8] JTB 405–407.
[9] JTB 408.
The applicant has held previous paid employment at:
·McDonald’s from 2018–2019.[10]
·Lennock Motors, where he was responsible for fuelling vehicles, checking for dents and scratches and signing paperwork.[11]
·Canberra Southern Cross Club, where he was responsible for collecting glasses and serving food to patrons.[12]
[10] JTB 705.
[11] JTB 407.
[12] JTB 408.
CONSIDERATION
The respondent made a decision to revoke applicant’s status as a participant in the NDIS pursuant to section 30 of the NDIS Act. The applicant seeks to remain a participant of the NDIS on the basis that he meets the disability requirements in section 24 and the early intervention requirements in section 25.
The disability requirements – section 24
The applicant submits that he has the following disabilities:[13]
a)congenital heart condition.
b)Anxiety, depression, post-traumatic stress disorder (PTSD).
c)Learning/cognitive disorder.
d)Receptive and expressive language disorder.
[13] JTB 389.
Impairment and Permanence: paragraphs 24(1)(a) and (b)
Paragraph 24(1)(a) requires that 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.
The Tribunal must be satisfied that the applicant has a disability attributable to an impairment. As stated by Mortimer J (as she then was) in Mulligan at [51]:
The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.
The focus of the criterion in paragraph 24(1)(a) is the person’s impairment and not their diagnosis.[14]
[14] National Disability Insurance Agency v Davis [2022] FCA 1002 at [69] and National Disability Insurance Agency v KKTB [2022] FCAFC 181 at [130].
In relation to the meaning of ‘permanent’ in paragraph 24(1)(b) of the NDIS Act, the respondent makes the following submissions which are accepted by the Tribunal:[15]
·Rule 5.4 provides that an impairment, is or is likely to be, permanent only if there is no known, available and appropriate evidence-based clinical, medical or other treatment that would be likely to remedy the impairment.
·In the case of FBJV and the National Disability Insurance Agency [2021] AATA 913 (FBJV) at [117] the Tribunal stated that rule 5.4 does not focus on the likely ‘cure’ of an impairment, but ‘necessarily includes easing the impact or effects of the impairment’.[16] Where a form of treatment has been specifically recommended and not undertaken by the applicant, then it cannot be concluded that all known, available and appropriate evidence-based treatment is likely to remedy the impairment.[17]
[15] JTB 438–439.
[16] cited with approval in Grasser and National Disability Insurance Agency [2024] AATA 188 at [122].
[17] National Disability Insurance Agency v Davis [2022] FCA 1002 at [137]; FBJV at [121]; Jourfian and National Disability Insurance Agency [2020] AATA 1883 at [44].
a) congenital heart condition
The respondent does not accept that the applicant has a disability attributable to a physical impairment resulting from his congenital heart condition. In a ‘final report’ dictated on 21 May 2021, from the Department of Cardiology at the Royal Prince Alfred Hospital, Dr Offen states:
I had the pleasure of seeing [the applicant] today at our Adult Congenital Heart Disease Outreach Clinic in Canberra, alongside Dr Rachel Cordina. It was great to hear that he has been feeling really well since his surgery earlier this year. He has gotten back into his dancing again and is walking his Australian Shepherd twice daily with no exertional or other cardiac symptoms. He is still planning to go to TAFE or CIT next year, possibly to study an IT course. His INRs have been relatively stable, however he is yet to get a CoaguChek machine.
During an exercise stress test performed on 11 May 2021 on a Naughton protocol, [the applicant] was able to exercise for a total of 11 min and 55 s or the equivalent of 5.5 METs. He denied any significant breathlessness. His oxygen saturation nadir was 81%.[18]
Dr Offen said that the applicant looked well and all of the tests conducted showed that he was doing well post the AV valve replacement surgery he underwent earlier that year.[19]
In an earlier report dated 15 October 2020, Dr Cordina (cardiologist), said:
His heart defect does not affect his ability to perform his activities of daily living but he likely has some neurcognitive [sic] issues that will affect his ability to plan and be organised. He has some learning difficulties which is commonly associated with his kind of congenital heart issue.[20]
[18] JTB 691.
[19] JTB 692.
[20] JTB 178.
The respondent submits that whilst the applicant’s congenital heart condition does have an impact on his cardiac function and can result in reduced oxygenation and exertional symptoms, these symptoms resulting from his heart condition do not reach the threshold for an impairment for the purposes of the NDIS Act.[21] The Tribunal accepts this submission and determines that the applicant does not have a disability that is attributable to a physical impairment arising from his congenital heart condition.
[21] JTB 438.
b) Anxiety, depression, post-traumatic stress disorder (PTSD)
The evidence in relation to these conditions is limited. In a Neuropsychological Assessment Report, dated 5 September 2022, prepared by Dr Louise Barrett she states that during a background interview with the applicant he stated:
·his mood is generally “average,” however he is “anxious all the time.” He reported having “depression, anxiety, PTSD and stress” however was unsure if these have been formally diagnosed - he thought that “someone said I have them.”
·He was suicidal in 2019 after a period of bullying. He reported that he attempted suicide “sixteen times” and then later reported it was “sixteen times a week.” He reported that his mother was aware of this.
·He said, “things aren’t too bad at the moment” and he did not have any intention of acting on thoughts of dying or hurting himself. He agreed he would tell his mother he was feeling like this again.
·He has never been diagnosed with ADHD or autism spectrum disorder but thinks he may have “a bit of that.”
In a separate interview with the applicant’s mother, she said:
· She feels he experiences depression, anxiety, PTSD, and stress – however he does not have any formal diagnoses for these.
· She strongly feels he would benefit from thorough assessments to document diagnoses (or lack thereof) of the above.
In September 2022, the applicant’s GP referred the applicant to Canberra Health Services Virtual Access Mental Health Intake at the Canberra Hospital (Access). In a report from Access dated 6 December 2022, it states:
·Since Sept 2022, contact with [the applicant] and mother has been attempted without success.
·Last contact was 25/10/22 with mother who advised [the applicant] was now living with a friend. Access encouraged [mother] to call Access MH back when she is in touch or with [the applicant]. No contact received since then.
·Letter of engagement also sent to GP on 3/11/2022 advising care will be closed within two weeks if nil ongoing contact with [the applicant].
·Call attempted today 06/12/2022 to [the applicant and mother] with no success.
·Plan - for MDTR for closure given lack of engagement.[22]
[22] JTB 549.
The same report refers to the following history taken from the GP referral:
·As a result of the applicant’s heart condition, he missed a significant amount of schooling and was in a learning support unit at college with significant learning difficulty and impairment to executive functioning.? PTSD due to trauma from repeated hospitalisations and surgeries.
·History of being bullied at school.
·History of anxiety and depression.
·History of engagement with CAMHS South and private psychology and Next Step.
·History of engagement with NDIS - though GP referral notes and DIA rejected claim for support which GP does not feel is appropriate.
·History of self-harm by cutting.
·No suicide attempts as per GP referral.
A closure letter was sent to the applicant’s GP and to the family address.[23]
[23] JTB 550.
There is no evidence that the applicant has a formal diagnosis of anxiety, depression, or PTSD. However, the evidence indicates that the applicant has suffered from anxiety and depression and that he has a psychosocial impairment resulting from those conditions.
As a result of that psychosocial impairment, the applicant was referred to Access in September 2022. That service made numerous attempts to contact the applicant with no success. At that time no further concerns were raised by the applicant’s GP, mother, or family and therefore the care from that service was finalised. In a letter to the applicant’s GP, Dr Haynes, dated 3 November 2022, Access advised her that the applicant could be re-referred at any time in the future if there were any ongoing concerns about his mental health.[24] There is no evidence of any re-referral or ongoing concerns about the applicant’s mental health.
[24] JTB 557.
In a report dated 10 May 2022, prepared by Ms Madeline Franklin, psychologist from Next Step service, she says that she assessed the applicant on 19 April 2022. At that time, he told her that his main problems were socialising and trusting others which has involved feeling nervous and panicked in social situations and which led to avoidance of engaging with others and making new friends. She said the applicant agreed to engage in a programme of psychological interventions focusing on changing behaviour to embrace anxiety and learn based on fact, specifically around building up confidence to make new friends and talk more in social situations. At that assessment, the applicant reported thoughts of wanting to end his life in response to a breakdown of a relationship. He reported he had not acted on the thoughts or started making any preparations to access means. His intent to act on these thoughts was 1/10 and he reported he has good friends who supported him and he could reach out to if he is distressed. He reported things he is looking forward to and was aware of the impact it would have on others.[25]
[25] JTB 698–699.
When the applicant was assessed by Mr Stretton on 18 January 2024 the applicant advised that he was not certain whether he had received any of the treatment recommended by Ms Franklin but did not think he had. During that assessment the applicant made no mention of suffering from anxiety, depression or PTSD.
It can be seen from the evidence that he has not undertaken any psychological or psychiatric assessment or treatment. Therefore, the Tribunal finds that any psychosocial impairment that the applicant may currently be suffering from attributable to anxiety, depression or PTSD is not permanent for the purposes of the NDIS Act.
c) Learning/cognitive disorder
In the report prepared by Dr Cordina, cardiologist, dated 15 October 2020, she states that whilst the applicant’s congenital heart disease does not affect his ability to perform his activities of daily living, he is likely to have some neurocognitive issues that will affect his ability to plan and be organised. He also has some learning difficulties which is commonly associated with this kind of congenital heart issue.[26]
[26] JTB 178.
Dr Barrett, clinical neuropsychologist, conducted a neuropsychological assessment of the applicant in August 2022. In her report dated 5 September 2022, she notes that the applicant has a reported history of learning difficulties and anxiety and further that he undertook the majority of his primary and early secondary schooling in a learning support unit, however completed mainstream schooling for senior years.[27] Under the heading ‘opinion’, Dr Barrett states:
[The applicant’s] cognitive abilities are generally in the Low Average to Average range. He demonstrates relative weaknesses (Extremely Low – Borderline ranges) in attention, working memory, vocabulary, and visual learning…
[The applicant] as many cognitive abilities that are within normal limits, which should allow him to engage in CIT [Canberra Institute of Technology] and paid work. However, it is likely that [the applicant’s] attention difficulties will continue to impact his functioning in academic and future work roles.[28]
[27] JTB 703.
[28] JTB 703.
Following that assessment a feedback report was provided to the applicant dated 20 September 2022. In that report, Dr Barrett states:
Thank you for doing the neuropsychology assessment in August this year.
The testing showed us that a lot of your thinking skills were at normal levels for someone your age, but you had some areas of difficulty.
Main strengths:
You did best with hands-on tasks (like building things) and did well at problem-solving.
Your memory for words was very good, however you had a bit more difficulty learning and remembering pictures.
Main areas of difficulty:
Your ability to pay attention and hold information in your head while you think about it, was weaker than other people your age.
This means:
·You will not be able to pay attention to a lot of information at once and will need to hear things one piece at a time.
·It will be very important to avoid distractions - turn off music or TV in the background and leave your phone in another room if you need to focus.
·If someone is showing you how to do something, you should explain it back to them as they go through it.
·You should write things down rather than trying to hold everything in your head.
Key strategies
·For CIT, you will likely need to go over things a few times to learn them.
oIt is a good idea for you to keep studying part-time so you can spend as much time going over the information as you need to.
oMake sure you turn off distractions (like your phone, TV) when you are studying.
·If you get a new job in the future, you might need people to teach you things one-on-one.
oYou should take notes to help you remember what they teach you.
oThey might need to show you things more than once.
·If you don’t entirely understand what someone has said, ask them to explain it in a different way until you do.
·If you find that you are losing focus, it is a good idea to take a short break and then come back to the task.
It is great that you are studying an area you like and looking for jobs in that area. You have a lot of great cognitive strengths, you will do well.[29]
[29] JTB 709–710.
Based on this evidence, the Tribunal finds that the applicant has a learning/cognitive disability that is attributable to a cognitive impairment and that impairment is permanent.
d) Receptive and expressive language disorder
The applicant underwent a speech pathology assessment on 29 October 2021. As a result of that assessment Ms C Dunn-Palmer (speech pathologist) prepared a report. In that report she notes that the applicant had previously accessed speech therapy targeted towards improving his language and speech sound production skills. His mother reported that he had made improvements towards his communication skills, but found that there are times where she has to reword something a number of times before the applicant could fully comprehend it and the applicant became frustrated when having trouble expressing himself adequately.[30]
[30] JTB 180.
According to the report the results indicated that:
· the applicant presented with mild receptive and expressive language disorders, likely secondary to his cognitive deficits.
· speech therapy would continue to improve the applicant’s functional skills, but his persistent language difficulties are highly likely to be permanent.[31]
[31] JTB 183.
Based on this evidence, the Tribunal finds that the applicant has a receptive and expressive language disability that is attributable to a cognitive impairment and that impairment is permanent.
In summary the Tribunal has found that the applicant’s:
· congenital heart condition is not a disability that is attributable to an impairment for the purposes of the NDIS Act.
· anxiety, depression, or PTSD is a disability that is attributable to an impairment, but it is not permanent as defined by the NDIS Act.
· learning/cognitive disorder is a disability that is attributable to a cognitive impairment and is permanent.
· receptive and expressive language disorder is a disability that is attributable to a cognitive impairment and is permanent.
Substantially reduced functional capacity: paragraph 24(1)(c)
As a result of these findings, the Tribunal must now determine whether the applicant’s learning/cognitive disorder and his receptive and expressive language disorder result in substantially reduced functional capacity to undertake one or more of the following activities:
a)communication;
b)social interaction;
c)learning;
d)mobility;
e)self-care;
f)self-management.
The Tribunal is required to use the assessment tools, namely the Access Rules and the Operational Guidelines, to reach a conclusion as to whether or not the applicant has a substantially reduced functional capacity to undertake one or more of the activities referred to in paragraph 24(1)(c), on the basis of his learning/cognitive disorder and his receptive and expressive language disorder (the cognitive impairments). In the case of National Disability Insurance Agency v Foster 2023 FCAFC 11 (Foster), the Full Court held that the Tribunal is required to assess the applicant’s functional capacity with respect to the bundle of tasks and actions forming the concept of the relevant activity.[32] The Full Court also held at [88]:
…a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.
[32] Foster at [65].
Communication
A functional capacity assessment report was prepared by Ms E Denham, occupational therapist, dated 9 November 2021. In relation to communication, she recorded that the applicant demonstrated:
·appropriate spoken language,
·effective reading and writing skills,
·ability to independently use his phone to complete calls,
·ability to use his gaming console to engage in active gameplay, verbalise appropriate responses to simple questioning.
·provide accurate collateral history as per disability and medical documentation.
She was of the view that the applicant required assistance with accessing his computer to complete emails, accessing his learning resources and completing attainment requirements, learning strategies to communicate in confronting or stressful situations, comprehending and providing appropriate responses to complex questioning.[33]
[33] JTB 205.
In the Access Request - Supporting Evidence Form completed by the applicant’s GP, Dr D Haynes, dated 8 November 2021, she states with respect to communication that the applicant’s language difficulties make complex social interactions and complex interpersonal communication without assistance difficult.[34]
[34] JTB 196.
In the carer statement prepared by the applicant’s grandmother she states that the applicant has some form of speech disorder which does impact his interactions, social experiences, and work.[35]
[35] JTB 394.
In the most recent report prepared by Mr Stretton, occupational therapist, dated 18 January 2024 he says the applicant has the capacity to undertake a conversation, to communicate his basic needs, tell a family member or friend about something that has happened and express to a doctor that he is unwell or in pain. He does require assistance for complex communications such as medical and legal matters and he has a mild speech impediment which can make his spoken word difficult to understand.[36] Some difficulty was noted with holding a pen to complete standardised assessments, but he managed with an adaptive technique. The applicant did not report any difficulties with communication and none were observed. He is able to communicate without assistance in person and by telephone.[37]
[36] JTB 427–428.
[37] JTB 412.
Based on the evidence the Tribunal finds that the applicant is able to speak and write and express himself adequately. In most situations, he can understand other people and communicate with them except in confronting or stressful situations or when he is asked complex questions. Accordingly, the Tribunal determines that whilst the applicant does have some difficulties with communicating in some circumstances, he can effectively communicate and does not have a substantially reduced functional capacity to undertake communication activities with respect to the cognitive impairments.
Social interaction
Dr Haynes states in her report dated 8 November 2021, that the applicant has reduced social awareness and needs assistance with interpreting social cues. He is easily upset with a lot of stimulation.[38] In her report dated 9 November 2021, Ms Denham records that the applicant is reported to become dis-regulated at times and has a decreased ability to independently manage his emotions at this time.[39]
[38] JTB 196.
[39] JTB 206
In her carer statement, the applicant’s grandmother states that he has a girlfriend, but she did not think he had any other friends. She says he depends on his girlfriend for all peer support and she sees their relationship as co-dependent and dysfunctional. She says that the applicant interacts with others when it suits him and has benefit to him. He does not interact if asked to join a social occasion such as dinner, to communicate on plans and his involvement. He retreats to his room.[40] She also says that the applicant has difficulty managing his emotions and disappointment. He is prone to anger, angry outbursts and shows aggression. He has broken things in the home and has hit and damaged walls. He has been verbally abusive and threatening.[41]
[40] JTB 394.
[41] JTB 395.
In Mr Stretton’s report of 18 January 2024, he says he observed the applicant to interact appropriately during the assessment and to engage in reciprocal social conversation. He reports that the applicant’s observed behaviour was within socially acceptable limits. The applicant told him he has a small network of friends and his partner with whom he interacts most frequently. He participates in online gaming and uses social media applications such as Facebook.[42]
[42] JTB 412.
In assessing whether the applicant has a substantially reduced functional capacity in respect of social interaction, the Tribunal must focus on the bundle of tasks forming the activity of social interaction rather than individual tasks. Whilst the Tribunal accepts what Dr Haynes and the applicant’s grandmother says about some of the limitations associated with the applicant’s social interaction, overall, he does not have a substantially reduced functional capacity to undertake social interaction. He does have a small group of friends and maintains a relationship with his girlfriend. He is able to interact with the community and he has held positions of employment. He is capable of behaving within the limits accepted by others. He may have some difficulty coping with feelings and emotions but not when he is comfortable. Accordingly, the Tribunal finds that the applicant does not have a substantially reduced functional capacity to undertake social interaction with respect to his cognitive impairments.
Learning
As stated above the formal neuropsychological assessment of the applicant conducted by Dr Barrett in August 2022 showed that whilst many of the applicant’s cognitive abilities are within normal limits which should allow him to engage in learning and paid work, he does have weaknesses in attention, working memory, vocabulary and visual learning. In her feedback report dated 20 September 2022 to the applicant she provided him with a number of key strategies that he could use to assist him with these weaknesses. By using these strategies, his cognitive strengths, as well as hard work she was of the opinion that he should be able to study in an area he liked and obtain employment in that area.[43]
[43] JTB 710.
The applicant did complete mainstream schooling in his senior years [with support]. He undertook the majority of his primary and early secondary schooling in a learning support unit.[44]
[44] JTB 703.
The applicant’s grandmother says in her carer statement that the applicant learns better by doing. Anything that does not include some form of kinaesthetic learning finds him tiring and dozing off. He also needs to understand purpose and value – like most learners – and needs this explained and demonstrated. He needs repetition and guidance until he demonstrates competence.[45]
[45] JTB 393.
The applicant’s grandmother also states in her carer statement that the applicant has engaged LEAD employment services to help him find employment and he has the support of a mentor. He has held two previous jobs but has not been kept on. It is her belief that this is a result of a mix of things: lateness to, or tardiness at work; poor personal presentation and hygiene and not following instructions. She does not state that he lost his employment as a result of learning difficulties.
Mr Stretton asked the applicant specifically to explain how he learned the new tasks involved in the paid positions he has held and how long it took him. The applicant advised that he felt he was competent after a few days with both jobs, particularly when being shown how to do a task rather than just being told. He said he had received feedback from the Southern Cross Club that he was working at a slower than expected pace.[46] The applicant advised Mr Stretton that he does have memory problems and often forgets to do things at home and requires reminding. According to Mr Stretton, the applicant did not display any obvious impairment to his cognition or ability to learn new information on a basic functional level, although Mr Stretton did not conduct formal cognitive testing. The applicant was able to read and answer the questions on the WHODAS standardised assessment without assistance. He was able to explain how he uses Google Maps to find his way to new places and how he uses the internet to submit job applications.[47]
[46] JTB 413.
[47] JTB 413.
Mr Stretton further reported that the applicant was able to remain engaged and was able to concentrate for the duration of the assessment[48] (which took place over a two-hour period).[49]
[48] JTB 412–413.
[49] JTB 408.
Ms Denham says in her report of 9 November 2021, that she observed the applicant to require assistance with comprehending and providing appropriate responses to complex questioning; understand, organise and prioritise complex instructions; focus and maintain attention and regulate and sustain alertness.[50]
[50] JTB 205.
The evidence establishes that the applicant has some difficulties with learning. However, Dr Barrett has noted strategies for the applicant to utilise when he is learning new tasks. (The evidence indicates that he already uses some of these strategies to learn). She reports that the applicant has a lot of great cognitive strengths, and if he adopts the strategies, she has recommended he should be able to overcome the learning difficulties that he has. He has had paid employment and he should be able to obtain employment in the future.
The Tribunal finds that the applicant does have functional difficulties in relation to learning as a result of the cognitive impairments, but these difficulties are not at a point which amounts to a substantial functional capacity in respect of learning. The applicant can learn, understand and remember new things. He can also practise and use new skills.[51] Accordingly, the Tribunal finds that the applicant does not have a substantially reduced functional capacity in respect of learning.
[51] Operational Guidelines p 9.
Mobility
The applicant’s GP, Dr Haynes, states in the Access Request – Supporting Evidence Form, dated 8 November 2021, that the applicant does not require assistance to be mobile.[52]
[52] JTB 195.
In her report dated 9 November 2021, Ms Denham says that in the home and in the community the applicant is independent with his endurance fluctuating based on his health at the time. He uses nil aids for mobility.
Mr Stretton, occupational therapist, records in his report of 18 January 2024 that the applicant was observed to mobilise inside and outside his home safely and independently without the use of a walking aid and with intact balance. He was observed to complete sit to stand transfers safely and independently. He was observed to negotiate three steps without difficulty. The applicant reported to Mr Stretton that he mobilises within his home and outside independently without a walking aid. He is able to walk on flat ground for a couple of hours around a shopping centre without much difficulty but becomes breathless when negotiating a lot of stairs or walking up an incline. The applicant reported that he completes all transfers independently including chair, shower, toilet, bed and car. The applicant is able to drive a motor vehicle, he is also able to take public transport. He was able to explain where the bus stops are and how he gets to places he visits regularly. He is able to use Google maps to navigate new locations without assistance.[53] Mr Stretton concludes that the applicant is independently mobile and no support for mobility is required.[54]
[53] JTB 411–412.
[54] JTB 422.
The Tribunal has determined that the applicant does not have any physical impairment based on his congenital heart condition. Based on the evidence, it is clear that the applicant is able to easily move around his home and the community. He can manage all transfers independently, he is able to get out and about and use his arms and legs with no assistance.[55] Accordingly, the Tribunal determines that the applicant does not have a substantially reduced functional capacity to engage in the domain of mobility as a result of the cognitive impairments.
[55] Operational Guidelines p 9.
Self-care
In the carer statement provided by the applicant’s grandmother she expresses her concerns about the applicant’s capacity to engage in appropriate self-care. She says:
·the applicant demonstrates poor personal hygiene and daily living skills, decision making and completing actions around daily tasks. He requires prompting for showering, teeth cleaning, washing of clothes and room cleaning. He does not do his own cleaning, washing, folding, ironing, or putting items away. He eats in his room and leaves scraps in his room which creates ‘some pretty poor odours.’ His room, clothes and belongings are not well maintained by him.[56]
·the applicant showers irregularly and does not seem to clean his teeth. His toileting and cleaning of any residual mass is poor. He seems oblivious to poor hygiene levels.[57]
·if the applicant is not provided with meals, he defers to convenience food and takeaways.[58]
[56] JTB 390.
[57] JTB 391.
[58] JTB 392.
Ms Denham records in her report that the applicant requires prompting to initiate showering, bathing and grooming as well as dressing in appropriate clothing.[59]
[59] JTB 200.
Mr Stretton says the applicant has the physical and cognitive capacity to complete household tasks such as meal preparation and cleaning however lacks the motivation to do so without prompting. The applicant reported to Mr Stretton that his grandmother usually prepares all meals for him although he is able to prepare simple things for himself. He previously had a therapy goal to cook twice a week for his family and he was able to achieve this. His grandmother plans all meals and completes the grocery shopping. He is able to shop for small incidentals as required.[60]
[60] JTB 413–414.
The applicant reported to Mr Stretton that he manages his own personal care tasks without physical assistance but admitted that he requires prompting to shower and perform grooming tasks such as teeth brushing.[61] Mr Stretton reports that the applicant requires prompting to do certain tasks related to self-care due to low motivation related to his cognitive impairments. Mr Stretton says that electronic reminders would assist the applicant to remember when tasks need to be completed. He would then need to be motivated to act on the reminders. If the applicant used the electronic reminders and acted on them, he would not require prompting.[62]
[61] JTB 415.
[62] JTB 426.
The Tribunal accepts the evidence of the applicant’s grandmother that his functional capacity to engage in all aspects of self-care has some limitations. However, he is capable of attending to his personal care, hygiene, grooming, eating and drinking and health. He can independently get dressed, shower or bathe, eat and go to the toilet.[63] The Tribunal accepts that he has low motivation to do these tasks related to his cognitive impairments and requires prompting to perform them.
[63] Operational Guidelines p 9.
In Foster at [64] the Full Court held:
In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
In the case of Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine) at [121], the Tribunal held that having a substantially reduced capacity to care for oneself, ‘imports the idea that there are significant gaps in one’s capacity to maintain personal health, and well-being’.
Based on the evidence, the Tribunal finds that whilst the applicant’s functional capacity to engage in the activity of self-care has some limitations, he can functionally attend to his own self-care. Further, any ‘gaps’ in his capacity to undertake self-care do not significantly compromise the maintenance of his health, safety and well-being.[64] Accordingly, the applicant does not have a substantially reduced functional capacity in respect of self-care as a result of his cognitive impairments.
[64] Madelaine at [126].
Self-management
In the carer statement prepared by the applicant’s grandmother she says:[65]
· The applicant seems oblivious to his poor hygiene levels and can get angry/dismissive when asked to manage this.
· The applicant does not sleep well. He is not aware of the impact his late-night behaviour such as gaming, talking loudly, going out, has on others in the household.
· It is an everyday task to remind him, follow up and then do the tasks if he does not.
· For some months she was having to remind him of medical appointments, take vital medications and get his blood tested regularly.
[65] JTB 391–392.
When the applicant was assessed by Ms Denham in August 2021, he reported that he required moderate assistance to manage; day-to-day purchases, banking, major purchases and budgeting. He also reported that he required moderate assistance to prepare his medications in advance in separate dosages.[66]
[66] JTB 206-207.
In his report of 18 January 2024, Mr Stretton said that the applicant advised him of the medications he takes, what they are for and said that he monitors his own prescriptions and replenishes them independently as required.
Mr Stretton says the applicant has sufficient literacy and numeracy skills to manage his own basic affairs. His grandmother plans all meals and completes the grocery shopping. He is able to shop for small incidentals as required, he is able to use cash or a debit card to pay for purchases. He is able to wash his own clothes using the washing machine and described how to use it but said his grandmother usually does his washing. He tidies his own room when asked. His grandmother does all of the other household cleaning. He is able to mow the lawn when asked but needs to take a couple of breaks whilst doing so. He receives the DSP fortnightly into his own bank account. He knows how much he receives and what expenses he has on a fortnightly basis. He pays his own bills and is able to make his own appointments and attend alone.[67]
[67] JTB 413–414.
Where the evidence of Ms Denham and Mr Stretton differs, the Tribunal prefers the evidence of Mr Stretton on the basis that Ms Denham’s report was prepared based on information provided in August 2021, whereas Mr Stretton’s report was prepared on more recent information obtained in January 2024. The information obtained by Mr Stretton is more current and relevant to the applicant’s current circumstances.
Self-management connotes a cognitive capacity to organise one’s life, to plan and make decisions, and to take responsibility for oneself.[68] The Tribunal accepts that the applicant’s grandmother provides him with assistance with some activities that fall within the domain of self-management. However, the Tribunal finds that the applicant does have the capacity to engage in the tasks associated with self-management and that he does not have a substantially reduced functional capacity to self-manage as a result of his cognitive impairments.
[68] Mulligan at [138].
Summary paragraph 24(1)(c)
The respondent contends, and the Tribunal finds, that the applicant does not satisfy Rule 5.8 in any of the activities of substantially reduced functional capacity because he does not require the assistance of assistive technology, or another person to engage in those activities.
In her carer statement the applicant’s grandmother described many difficulties that she observed as a result of the applicant residing with her, particularly in the areas of self-care and self-management. However, based on the Tribunal’s assessment of the applicant’s functional capacity to undertake the activities referred to in paragraph 24(1)(c), there are very few activities that the applicant could not actually do. He does require prompting to do some activities, but this does not enable him to reach the threshold for substantially reduced functional capacity listed in paragraph 24(1)(c).
In her carer statement the applicant’s grandmother said that the applicant had engaged LEAD employment services to help him find employment and he had the support of a mentor.[69] The applicant has had previous paid employment and as at January 2024 he had registered with Hays Recruitment and was actively seeking employment.[70] The applicant’s grandmother noted that the applicant’s behaviour (sleeping and eating) was better when he was employed.[71]
[69] JTB 393.
[70] JTB 408.
[71] JTB 391.
The respondent and the Tribunal acknowledge that the applicant requires some support as a result of his cognitive impairments. However, the fact that he needs some support does not qualify him for access to the NDIS. Accordingly, the Tribunal determines that the applicant’s cognitive impairments do not result in substantially reduced functional capacity in any of the activities referred to in paragraph 24(1)(c).
Conclusion – section 24
As the Tribunal has concluded that the applicant does not satisfy paragraph 24(1)(c), it is not required to consider whether his impairments affect his capacity for social or economic participation and whether he is likely to require NDIS supports for his lifetime as set out in paragraphs 24(1)(d) and (e). The conclusion of the Tribunal is that the applicant does not meet the disability requirements set out in section 24 of the NDIS Act.
Early intervention – section 25
The Tribunal has determined that the applicant has a psychosocial impairment and cognitive impairments that are permanent. Accordingly, paragraph 25(1)(a) is satisfied.
Paragraph 25(1)(b) requires the Tribunal to be satisfied that the provision of early intervention supports is likely to benefit the applicant by reducing his future needs for supports in relation to disability.
Based on the carer statement provided by the applicant’s grandmother it appears that the supports requested for the applicant’s cognitive and psychosocial impairments are allied health therapy supports to assist with skill development for self-care tasks and self-management particularly in the area of prompting. As indicated by Mr Stretton in his report, electronic reminders would assist the applicant to remember when tasks need to be completed and if he was to use these and act on them, he would not require prompting.[72]
[72] JTB 426.
In relation to finding employment the applicant has engaged employment recruitment agencies who have also provided mentoring.[73]
[73] JTB 393.
In relation to his psychosocial impairment the evidence is that the applicant was referred for psychological assistance with the Access Mental Health Team, but due to his lack of engagement the referral and assessment did not proceed. It was assumed that he no longer required mental health services. On 3 November 2022 letters were sent to the applicant and his GP, Dr Haynes advising that he could be rereferred back to access mental health at any time in the future for assessment and management.[74]
[74] JTB 556–558.
According to Mr Stretton the applicant is not currently engaged in any treatment. He attends fortnightly appointments with his DES provider, which should continue until he is settled into paid employment.[75]
[75] JTB 418.
The Tribunal concludes that there are no early intervention supports which would reduce the applicant’s future needs for support. Therefore, the requirements of paragraph 25(1)(b) are not met. Having concluded that the applicant does not meet the requirements of paragraph 25(1)(b), the Tribunal is not required to consider paragraphs 25(1)(c) and (d).
Conclusion – section 25
The applicant does not meet the early intervention requirements set out in section 25 that would enable him to become an NDIS participant under that section.
Determination
Having found that the applicant does not continue to meet the disability requirements set out in sections 24 and 25 of the NDIS Act, the decision to revoke the applicant’s access to the NDIS under section 30 of the NDIS Act was the correct and preferable decision and that decision is affirmed.
| Date(s) of hearing: | On the papers |
| Date final submissions received: | 5 March 2025 |
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
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