Iviglia and National Disability Insurance Agency

[2024] AATA 2609

Iviglia and National Disability Insurance Agency [2024] AATA 2609 (23 July 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/10220

Re:Jorge Iviglia

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member D. Barker

Date:23 July 2024  

Place:Sydney

Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth), the Tribunal affirms the decision under review.

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

Member D. Barker

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access criteria – disability requirements – early intervention requirements – left side sciatica – lower back pain – left foot injury - whether the impairments are, or likely to be, permanent – whether the impairments result in substantially reduced functional capacity – support under the National Disability Insurance Scheme for the person’s lifetime – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)

Cases

Beezley v Repatriation Commission [2015] FCAFC 165

HPSC v NDIA [2021] AATA 727

Mulligan v National Disability Insurance Agency (2015) FCA 544

National Disability Insurance Agency v Davis [2022] FCA 1002

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

Sutherland v NDIA [2024] AATA 411

Secondary Materials

Applying to the NDIS National Disability Insurance Scheme (Web Page, 5 February 2024) <

Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, [2008] ATS 12, ratified by Australia 17 July 2008

NDIS Act: Applying to the NDIS - National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 1 February 2024) Guidelines National Disability Insurance Scheme (Web Page, 30 October 2023) <

REASONS FOR DECISION

Member D. Barker

INTRODUCTION

1. This application is about whether the Applicant, Mr Jorge Iviglia, should be granted access as a participant to the National Disability Insurance Scheme (NDIS).

2. The Applicant is 67 years old and lives in a small regional town to the southeast of Melbourne, Victoria. The injuries resulting in the Applicant’s disabilities occurred when a tree branch fell on and injured his left foot on 23 February 2019.[1]

   [1] Casey Hospital Emergency Department discharge summary, Monash health, dated 10 April 2019, [A2].

3. The Applicant applied to become a participant in the NDIS in June 2021 (the access request). Information provided in association with this application indicated that the Applicant has a main disability due to injury to nerves, arteries, tendons, muscles, joint and peroneal nerve; and as well disability due to low back pain with left sided sciatica.[2]  In an earlier part of this application, the Applicant described his main disability as “Mobility: unable to walk or stand for long periods of time. Need to take a pain relief and rest due to nerve damage on left foot”. He described other disabilities affecting him as “Back problems created by limping due to disability 1” (the mobility difficulty) and “emotional stress as he is no longer able to tend to his duties as he used to prior to the accident which cause bouts of depression”.[3]

   [2] Section 2 of the NDIS Access request Form dated 7 June 2021, completed by Dr Stephen Moody. [T5]

   [3] Section 1, Part E of the NDIS Access request Form dated 7 June 2021, [T5].

4. On 16 June 2021, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA and the Respondent) determined that Applicant did not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (the NDIS Act). In particular, the delegate determined the permanency requirements in s 24(1)(b) of the NDIS Act were not satisfied.[4]

   [4] T6.

5. The Applicant, on 31 August 2021, requested an internal review by the Respondent. In response to a question on the form associated with this request as to how the decision to deny his request to access the NDIS had affected him, the Applicant stated:

   The decision for me to not meet access has affected me greatly, there are no other options for me in terms of recovery. The nerves are not able to be fixed and I will never be able to get back to my full mobility. I am in the process of having to sell my work van as it is a manual and I am unable to keep driving a manual due to the pain it causes. I have always been the man of the family and looked after them in our home but now I can barely mow the lawns. I feel as though I am a burden now to my wife who was hoping to retire in the coming years but as I am unable to work to my full ability it doesn’t look like either of us will be in a position to do so.[5]

   [5] T7.

6. In response to a question on the form associated with his request for an internal review of the decision to refuse him access to the NDIS regarding what outcomes the Applicant was seeking from the review he stated:

   My expectation is to meet the access requirements as my disability is fully treated. All appropriate treatments have been exhausted and there are no further evidence-based treatments available that are likely to cure or remedy my impairment. My impairment is likely to remain regardless of ongoing treatment.

   Most days my foot is numb with tingling sensations and shooting pain running up my leg and my back. My disability has caused sciatica on my left side - this further reduces my mobility and ability to complete daily tasks as some days I am completely unable to get out of bed.

   It is stated on my Access Not Met Letter than the information provided does not indicate that there is a reduced ability to complete an everyday activity. However due to my injury I am now unable to:

   ·I am unable to continue driving a manual car which is what I currently have so now I have to sell my car as it causes too much pain in my foot and then by the time I get to work I have to take a long rest. Sometimes the pain has been too much and I have not been able to complete my work day.

   ·I am unable to complete any maintenance of my home and property like I used to. I have a large rural property that requires maintenance such as mowing lawns (2 acres), trimming hedges, maintaining trees and general tidying and gardening required to maintain the property and keep it in good condition.

   ·I am unable to continue working at the same level. I am self-employed and primarily work alone. Due to my impairment I now struggle to get tools out of the van, I am unable to lift all tools and equipment required for the job, I am unable to move large materials required to finish job such as doors or plaster sheets. My stability is compromised and I now find it difficult to go up and down the ladder safely.

   ·Since the accident I have also experienced bouts of depression and anxiety as I am unable to adequately look after my family. I would greatly benefit from some assistance to support me to manage my emotions around my newly acquired disability.

   I have had surgery to repair the damage, this was ineffective, and the surgery was unable to correct the damage. There is no further options available to me and my current level of function is now my new baseline function.

   I have previously been seeing a Physiotherapist and done hydrotherapy to try to increase my mobility and stamina and to be provided with exercises which may assist to increase the movement in my foot however due to my reduced income caused by been unable to work due to my disability I have been unable to continue with this support.

7. On 24 November 2021, another delegate of the CEO (the NDIA Internal Reviewer) confirmed the decision that the Applicant did not satisfy the required access criteria to become a NDIS participant (the internal review decision or IRD).[6] In the IRD, the delegate explained that they were satisfied the Applicant has a disability attributable to a “left foot injury and low back pain with left sided sciatica and depression/anxiety”[7] and that the impairments affect the Applicant’s capacity for social or economic participation.[8]  The delegate was not however satisfied that impairments associated with the aforementioned disabilities are, or are likely to be, permanent. The delegate was further to this, not satisfied that the evidence demonstrated that as a result of the impairments affecting him, the Applicant had substantially reduced functional capacity, or psychosocial function in the following domains: communication, social interaction, learning, mobility, self-care and/or self-management.[9]  Additionally, the delegate was not satisfied that the Applicant was likely to require lifetime support from the NDIS[10], nor that threshold early intervention requirements to access the scheme were satisfied.[11]

   [6] T1A.

   [7] Ibid.

   [8] s 24(1)(d) of the NDIS Act.

   [9] s 24(1)(c) of the NDIS Act.

   [10] s 24(1)(e) of the NDIS Act.

   [11] S 25 of the NDIS Act.

8. On 25 December 2021, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision. In explaining why he contends that the decision to refuse him access to the NDIS was wrong the Applicant stated: “Because my disability is permanent and lifelong and I have additional supporting evidence to prove this.”[12]

   [12] T1.

9. The Applicant and Respondent (hereafter when referred to collectively referred to as the parties) participated in a number of case conferences and telephone direction hearings in which evidentiary gaps were identified, as well as suggestions as to how these evidentiary gaps could potentially be responded to by the Applicant. The Tribunal is unaware of the content of discussions which took place without prejudice in case conferences facilitated by an AAT Conference Registrar. The Tribunal has however had the benefit of assessments, reports and other material which may have been filed with the Tribunal as a consequence of discussion of evidentiary gaps during case conference events and from telephone directions hearings.

10. The parties appeared before the Tribunal at hearing on 23 May 2024 and 24 May 2024 to give evidence and present arguments. These proceedings were conducted by video using the Microsoft Teams platform in response to the location of some participants and at the preference of the parties.

    LEGISLATIVE FRAMEWORK

11. The objects of the NDIS Act are set out in section 3. It includes, amongst other things, to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities,[13] and facilitate the development of a nationally consistent approach to access to, and planning and funding of, supports for people with disability.[14] The Act also states that, in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.[15]

    [13] Opened for signature 13 December 2006, [2008] ATS 12, ratified by Australia 17 July 2008.

    [14] NDIS Act s 3(1)(f).

    [15] Ibid s 3(3)(b).

12. There are general principles under section 4 of the Act and includes that people with disability be:

    • supported to participate in and contribute to social and economic life;[16]
    • able to receive the care and support they need over their lifetime and that there be certainty around this;[17]
    • supported to pursue their goals and maximise their independence;[18]
    • supported to live independently and to be included in the community as fully participating citizens;[19] and
    • able to undertake activities that enable them to participate in the community and in employment.[20]

    [16] Ibid s 4(2)

    [17] Ibid s 4(3)

    [18] Ibid s (4)(11)(a)

    [19] Ibid s (4)(11)(b)

    [20] Ibid s (4)(11)(c).

13. Under section 18 of the NDIS Act, a person may make an access request to the NDIA to become a participant in the NDIS. If a prospective participant makes an access request, under s 20 of the Act, the CEO (or upon the matter being reviewed by the Tribunal, the Tribunal) must decide whether or not that person meets the ‘access criteria’ to become a participant in the NDIS. Pursuant to subsection 28(1) of the NDIS Act, a person becomes a NDIS participant on the day it is decided that the person meets the access criteria.

14. The provisions relating to access to the scheme are contained in Part 1 of Chapter 3 of the Act. Section 21 of the NDIS Act provides that for a person to meet the access criteria, they must meet the age and residence requirements in addition to either the disability requirements (s 24 of the NDIS Act) or the early intervention requirements (s 25 of the NDIS Act).

15. Amendments to sections 24 and 25 of the Act came into effect on 1 July 2022. Both the original decision which the NDIA made regarding the Applicant’s request for access to the NDIS, and the NDIA’s internal review decision, were made prior to those amendments. The Tribunal’s decision is made subsequent to those amendments.

16. At the time that the Agency made its internal review decision, a person met the disability requirements under section 24(1)(a) if:

    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.

17. The amendments removed the reference to impairments attributable to a psychiatric condition and replaced them with the phrase “one or more impairments to which a psychosocial disability is attributable”. From 1 July 2022, a person meets the disability requirements under section 24(1)(a) if:

    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.

18. The transitional provisions at Schedule 2, Item 54 of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) provide that:

    The amendments of sections 24 and 25 of the National Disability Insurance Scheme Act 2013 made by this Schedule apply in relation to the following:

    (a) an access request made on or after the commencement of this item;

    (b) an access request that was pending immediately before that commencement;

    (c) a revocation under section 30 of that Act made on or after that commencement.

19. As the decision under review relates to the determination of an access request under section 18 of the NDIS Act, it follows that the term “an access request that [is] pending immediately before” the commencement covers a decision under review, as in this review, that “has not been finalised prior to the commencement”. The Revised Explanatory Memorandum6 provides, in relation to Schedule 3, Item 56 that the amendment would apply “if a decision on their request under section 18 of the Act has not been finalised prior to the commencement”.

20. With respect to the current disability requirements, section 24 of the NDIS Act provides:

    24 Disability requirements

    (1) A person meets the disability requirements if:

    (a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

    (b) the impairment or impairments are, or are likely to be, permanent; and

    (c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

    (i) communication;

    (ii) social interaction;

    (iii) learning;

    (iv) mobility;

    (v) self-care;

    (vi) self-management; and

    (d) the impairment or impairments affect the person’s capacity for social or economic participation; and

    (e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

    (2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

21. Each subsection of s 24(1) of the NDIS Act needs to be met. In regard to this, the linking term ‘and’ in the provisions is significant. In effect, each of subsection s 24(1)(a) through s 24(1)(e) are threshold requirements that need to be satisfied in order for a person to be eligible to become a participant of the NDIS. The Tribunal must be satisfied, on the basis of rationally probative and relevant evidence, that these and other required provisions are met.

22. The NDIS Act also provides, in subsection 209(1), that the Minister may make rules prescribing matters under the NDIS Act. Section 27 of the NDIS Act further states that the rules may prescribe circumstances in which, or criteria to be applied with respect to assessing whether, a person meets the disability requirements under section 24 or the early intervention requirements under section 25 of the Act. The relevant rules are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), of which Part 5 is relevant and is discussed as appropriate in following sections of this decision record.

23. The Operational Guidelines also assist in making decisions in accordance with the NDIS Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[21] The NDIA website explains that the Operational Guidelines set out some of the NDIA’s operational information and that they are based on the NDIS Legislation and Rules.[22] The website explains that the Operational Guidelines explain what the NDIA needs to consider and how the NDIA make decisions based on the legislation. The relevant Operational Guideline in this matter address the issue of applying to become a participant of the NDIS (the Access Guidelines).[23]

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

    [22] ‘Operational Guidelines’ National Disability Insurance Scheme (Web Page, 30 October 2023) <

    [23] ‘Applying to the NDIS’ National Disability Insurance Scheme (Web Page, 5 February 2024) <

24. On 1 February 2024, the NDIA updated its policy guidance dealing with the assessment of whether a person meets the disability or early intervention requirements under ss 24 or 25 of the NDIS Act: Applying to the NDIS[24]. The Tribunal will take this policy guidance into account when making this decision, unless there are cogent reasons not to do so, for instance, if the policy guidance is inconsistent with the provisions of the NDIS legislative regime.

    [24] National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 1 February 2024) < EVIDENCE

25. The documents before the Tribunal are as follows.

26. The ‘T-Documents’ (T1 – T12, pp 1 – 172) provided under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to the Tribunal by the Respondent after the application for review was made, which comprises evidence provided by the Applicant to the Respondent and other documents available to the NDIA Internal Reviewer at the time of their decision. The contents of the T- Documents are as follows:

    Part A – General Documents

    T1AAT Application for Review of Decision – 25 December 2021 attaching:

    a)T1A      Internal Review Decision (Applicant’s copy) - 24

    November 2021

    b)        T1B     Letter, Dr Chris Kozlovski (General Practitioner) -
      20 December 2021

    T2       Internal Review Decision (Respondent’s copy) - 24 November 2021

    T3       Report, Dr Stephen Moody (General Practitioner) - 1 April 2019

    T4       Report, Dr Arvin Somasegeram (Senior Registrar) - 10 April 2019

    T5 Access Request Form, Dr Stephen Moody (General Practitioner) - 7 June 2021

    T6       Letter, Access Not Met (Original Decision) - 16 June 2021

    T7       Application for Review of a Reviewable Decision - 31 August 2021

    T8 Interaction Record, Request for Review of a Reviewable Decision – 8 September 2021

    T9        Extract of Interaction Records - 24 November 2021

    Part B – Legislative and Operational Guidance

    T10 Sections 20 – 25 of the National Disability Insurance Scheme Act 2013 (NDIS Act)

    T11 National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (The Rules)

    T12      NDIS Operational Guidelines – Access - 108

1. The oral evidence of the Applicant and witnesses at hearing on 23 May 2024.

2. The Applicant’s material as follows:

   a)    Medical certificate – 1 April 2019

   b)    Discharge summary from Monash Health – 10 April 2019

   c)    Response to targeted questions by Dr Tony Atkins (General Practitioner) - 22 February 2023

   d)    Response to targeted questions by Ms Karyn Tang (Musculoskeletal Physiotherapist) - 27 February 2023

   e)    Response to targeted questions by Mr Mark Eibl (Physiotherapist) - 14 March 2023

   f)     Applicant's statement of lived experience, attaching Statement of Lived Experience questions - 30 June 2023

   g)    List of Treating Practitioners – undated

3. The Respondent ’s material as follows:

   a)Documents produced under summons by Physiofit Berwick - 30 September 2022 (date produced)

   b)Documents produced under summons by Chirocentric - 4 October 2022 (date produced)

   c)Documents produced under summons by Monash Health - 5 October 2022 (date produced)

   d)Documents produced under summons by Berwick Healthcare - 10 October 2022 (date produced)

   e)Documents produced under summons by Maxvale Physiotherapy and Hydrotherapy - 13 October 2022 (date produced)

   f)Documents produced under summons by Narre Warren Physiotherapy - 25 October 2022 (date produced)

   g)Letter of Instructions to Mr Glen Dwyer (Occupational Therapist) - 8 September 2023

   h)Occupational Therapy Functional Capacity Assessment prepared by Mr Glen Dwyer – 20 October 2023

   i)Operational Guidelines re Applying to the NDIS – 1 February 2024

4. Where relevant, evidence from the documentary evidence before the Tribunal and the evidence provided by the Applicant and witnesses at hearing is referred to in following sections of this decision record.

   ISSUES

5. The issue arising in this case is whether the Applicant satisfies the access requirements to become a participant of the NDIS. There is no dispute that the Applicant meets the age and residency requirements set out in sections 22 and 23.

6. The issues arising for determination by the Tribunal in this application are:

   a)whether the Applicant meets the “disability requirements” under s 24 of the NDIS Act; or, alternatively,

   b)whether the Applicant meets the “early intervention requirements” under s 25 of the NDIS Act.

7. The Applicant’s position is that he meets the “disability requirements” under s 24 or, alternatively, the “early intervention requirements” under s 25 of the NDIS Act on the basis of impairments caused by the accident in which his foot was injured in 2019.

8. Regarding the “disability requirements” under s 24, the NDIA accepts that the Applicant satisfies s 24(1)(a) and s 24(1)(d) of the NDIS Act, but contends that the Applicant does not meet s 24(1)(b), s 24(1)(c), or s 24(1)(e) with respect to impairments caused by the accident in which his foot was injured.

9. Regarding the “early intervention requirements” under s 25, the NDIA accepts that paragraph 25(1)(a) has been met in respect of these impairments, but not paragraphs 25(1)(b), (c) and sub-section 25(3) of the NDIS Act.[25]

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The Disability Requirements

   [25] Respondent SFIC, [44]-[48].

   Does the Applicant have a disability attributable to one or more impairments? – s 24(1)(a)

10. The Tribunal first turned its mind to whether the Applicant 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.

11. The Act does not define the word, “disability,” nor the word, “impairment.” The Tribunal is aware that the concept of impairment, rather than a definition of disability, is central to the threshold provisions such as s 24. In Mulligan v National Disability Insurance Agency (Mulligan), Justice Mortimer discussed the meaning of these terms.[26]

    Some general observations should be made about these matters. 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.

    […]

    No decision-maker need be satisfied a person's impairment is “serious”, or more serious than another person's. No qualitative judgments 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. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity.

    [26] Mulligan v National Disability Insurance Agency (2015) FCA 544, [51] and [56].

12. In Mulligan, Justice Mortimer described the importance of the assessment needed to ascertain a person’s eligibility to become a participant of the NDIS. Her Honour stated:[27]

    Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an Applicant, but also medical and clinical evidence. 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.

    [27] Ibid, [55].

13. In this matter the Respondent accepts that the Applicant has physical impairments attributable to left foot injury and lower back pain with left sided Sciatica, and one or more impairments attributable to depression and anxiety for the purpose of s 24(1)(a) of the Act. The Tribunal has undertaken its own assessment of this legislative criteria.

14. A document prepared by the Applicant on 30 June 2023 in response to a document outlining information which could be included in a Statement of Lived Experience (SoLE response) provide comment regarding impairments affecting his functional capacity which include the following:[28]

    ·Cannot walk more than 10 minutes without stopping;

    ·Can drive an automatic care only (not manual geared) and not for long due to back soreness and cramping;

    ·Moves slowly around house and avoids steps if possible;

    ·Can get in and out of bed and chairs, but experiences lower back pain radiating to the buttock, down the back of the thigh and into the calf and numbness, tingling of left foot;

    ·Relies on a walking stick if not assisted by wife;

    ·Cannot work

    ·Social interaction with only close family members.

    [28] A6.

15. In a document prepared on 22 February 2023, Dr Tony Atkins, a GP working at Berwick Healthcare, where he had along with other GP’s over time treated the Applicant, provided responses to questions from a ‘Request for Information’. Dr Atkin’s qualifies his responses by indicating that he had not treated the Applicant since June 2015 and information provided was from the centres medical records. Dr Atkins notes that the Applicant “has been treated for left foot injury, low back pain and left sciatica” and that “while the presence of a period of anxiety and depressed mood has been recorded, no treatment was at any time directed towards these conditions”.[29] Dr Atkins also notes that “In regard to reported anxiety and depression there is no record that a Mental Health Plan has ever been drafted” and “From review of the patient health record no referral has ever been made to a mental health professional. I am unable to advise why this is the case.”[30]

    [29] Response to Request for Information prepared by Dr Tony Atkins, GP, Berwick Healthcare, dated 22 February 2023, A3 [P4].

    [30] Ibid.

16. At hearing the Applicant gave evidence that he is not sure whether he suffers from anxiety and depression. However, concern about his loss of income and ability to do his fair share of housework causes the Applicant to feel worried and depressed. The concern about the added strain this has placed on his wife adds to his worry and regrets. He discussed this with a GP after someone from the NDIA suggested to him that getting an assessment to determine if he had anxiety and depression could be worthwhile. It was getting a referral for an assessment that he discussed with the GP, not a referral for counselling or psychological treatment through a Medicare mental health care plan. He did not follow through with arranging an assessment to see if he had anxiety or depression as it would have cost too much.[31]

    [31] Applicants evidence at hearing.

17. A review of material produced under summons from the Berwick Medical Centre has identified an occasion in which a GP treating the Applicant, Dr Stephen Moody, asked the Applicant how he was feeling psychologically. The clinical note from this consultation on 7 June 2021 indicates that the Applicant said “he does not feel depressed and does not feel in need of counselling” albeit that “he feels up against the wall because he will need to sell the house but he cannot get it ready for sale and move with his limitations in the left leg and back.” [32]

    [32] Surgery consultation notes of Dr Stephen Moody dated 7 June 2021, R5 p153.

18. In relation to the issue of impairment, Dr Atkins reports that:

    Impairment arising from the lumbar pain and left sciatica varies according to the severity on any given day. While not previously recorded. Mr Iviglia reports he will on average be caused to miss one days work each month as a result of exacerbation of low back pain and/or sciatica. He reports he is not able at all to perform some previously routine home gardening activities as a result of his back pain, including maintaining hedges.

    Regarding impairment arising from the left foot injury. Mr Iviglia reports he walks with a limp and is unable to hurry and must proceed cautiously and slowly on uneven surfaces like building sites and when climbing steps or ladders. He is not able to operate manual transmission vehicles because of his inability to control the clutch pedal.[33]

    [33] Response to Request for Information prepared by Dr Tony Atkins, GP, Berwick Healthcare, dated 22 February 2023, A3 [P4].

19. A report prepared, on 27 February 2023, by Ms Karen Tang, a musculoskeletal physiotherapist, states that the Applicant had attended five sessions between 27 May 2019 and 5 June 2019 at the physiotherapy practice she was associated with and further to this was assessed on 24 February 2023. Information relevant to impairment affecting the Applicant from the report of Ms Tang includes the following:[34]

    [34] A4.

    Mr Iviglia sustained a left foot injury on the 24 February 2019. The injury had left him permanently injured with sensory and motor impairments.

    ……

    Upon physical examination, Mr Iviglia has presented with high levels of persistent chronic pain. There are skin colour asymmetry, temperature asymmetry, allodynia (extremely sensitive to touch) and swelling in his left foot in comparison to the right foot. It satisfied the three criteria of diagnosis of Complex Regional Pain Syndrome.

    The relationship of this injury to Mr Iviglia's impairments.

    The resultant effect of the structures involved in the injury to his left foot has caused:

    1) loss of strength and range of motion in left foot

    2) hypersensitivity over the dorsum of foot

    3) loss of sense of proprioception (sense of foot positioning in space in relationship to the ground surface)

    4) constant feeling of coldness and numbness in the left foot

    5) increased falls risk (due to lack of sensation and loss of sense of proprioception)

    6) altered gait pattern (limping walking pattern due to pain and decreased strength and range of motion)

    7) Altered motor firing in lower back muscles due to walking with a limp.

    ……..

    Mr Iviglia's impairments has resulted in his inability to continue working, keeping up with his leisure activities like tennis, gym, riding his motorbike, and maintaining his home and landscaping. He could not participate in any of his usual normal work and leisure activities. He reported that he has stopped socialisation with his friends and family members due to his pains and impairments.

20. A report prepared by a different physiotherapist, Mr Mark Eibl on 14 March 2023, states that the Applicant had attended for physiotherapy five times since 8 May 2019 for treatment of a left foot condition. As to details of the impairments that are attributable to the Applicant’s left foot condition, Mr Eibl indicated they were: reduced foot and ankle range of movement, strength and sensation, limping and asymmetrical gait.[35]

    [35] A5.

21. An occupational therapy functional capacity assessment report (the functional assessment) prepared by Mr Glen Dwyer on 20 October 2023 indicates that his assessment of the Applicant was undertaken at the request of the Respondent pursuant to proceedings before the Tribunal. In relation to functional incapacities impacting the Applicant, Mr Dwyer states that:

    Notwithstanding his prospect for further improvement in his functional capacity in the event he receives the treatment that has been recommended for him (See Section 3.4), analysis and interpretation of the medical reports indicates that due to the effects of his medical conditions, Mr Iviglia experiences difficulties undertaking tasks that involve:

    • strenuous activity requiring exertion

    • moderate, heavy or forceful manual handling including lifting, carrying, pushing and pulling

    • frequent bending, twisting, jarring or jolting of the lumbar spine

    • prolonged sitting, standing or walking

    • frequently traversing rough / uneven ground, inclines or steps

    • unsupported squatting or kneeling

    • prolonged periods of driving

    • sustaining activity participation despite experiencing chronic pain

    Conclusion as to s 24(1)(a)

22. The Tribunal is not satisfied that the information before it demonstrates that there is sufficient probative evidence to establish that Applicant has one or more impairments to which a psychosocial disability is attributable. This is because whilst the Applicant has made reference to the worry and stress and frustration he experiences as a consequence of the changes to his life and within his household as a consequence of the foot injury he suffered in 2019; there is no evidence that this has resulted in actual impairment to which a psychosocial disability is attributable. This is not to suggest the Applicant has misrepresented his circumstances or being anything less than open and honest about the way his life and that of his household have been impacted. To the contrary, the Tribunal considered the Applicant to be a person who gave his evidence in a straightforward way without unnecessary embellishment.

23. The lack of formal assessment of symptoms which may be associated with a mental health condition such as anxiety or depression is the constraint on the Tribunal’s assessment of this factor. Indeed, as the Applicant has conceded, there has been no referral made to a relevant health professional such as a psychologist to undertake such an assessment, or a recommendation from his GP’s or other health professionals with who he has been linked that such an assessment is something the Applicant should consider. Discussion of depression and anxiety with his GP appears to have been prompted by the Applicant at the suggestion of a third party and it was not apparently in the context of the Applicant seeking treatment for symptoms experienced.[36]  This would appear to be why no mental health care plan was prepared by a GP treating the Applicant.[37]

    [36] Applicants evidence at hearing.

    [37] Response to Request for Information prepared by Dr Tony Atkins, GP, Berwick Healthcare, dated 22 February 2023, A3 [P4].

24. The Tribunal accepts the Applicant experiences worry and regret about his current circumstances and also frustration and stress. However, these sorts of feelings and states of mind are in the view of the Tribunal within the normal range of human experience and do not inherently result in disability to which a psychosocial disability is attributable. In light of the lack of evidence that the Applicant is impaired by symptoms associated with depression, anxiety or other mental health disorders, the Tribunal is not satisfied that he has a disability attributable to these or other psychosocial factors.

25. However, on the basis of the available evidence, including that outlined in the Applicant’s SoLE response and the evidence provided by medical and allied health professionals, the Tribunal is satisfied that the Applicant has a disability that is attributable to physical impairments. These physical impairments arise from the effects of the left foot injury suffered by the Applicant in 2019 and are as identified in the functional assessment prepared by Mr Dwyer.

26. Accordingly, the requirements in s 24(1)(a) are met.

    Are the Applicant’s impairments permanent? – s 24(1)(b)

27. The Tribunal proceeded to consider whether the Applicant’s impairments are permanent. In doing so, it has focussed on the physical impairments which impact the Applicant, as these are the type of impairments which the Tribunal has determined cause his disabilities. The Tribunal has not given further consideration to whether any impairment to which a psychosocial disability are attributable are permanent, as it was not persuaded the evidence supported a finding that the Applicant was impacted by impairment to which a psychosocial disability is attributable.

28. In Davis,[38] a decision of the Federal Court of Australia where Justice Mortimer addresses the meaning of “permanent” in the context of s 24(1)(b). Her Honour states at [130]:

    The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis. As s 29 and s 30 make clear, the intention of the scheme is that once a person meets the access requirements, then subject to certain specific exceptions, the person will remain supported by the NDIS through their lifetime.

    [38] National Disability Insurance Agency v Davis [2022] FCA 1002.

29. In Davis, Her Honour discusses the meaning of terms she considers important for the proper construction of the Access Rules and in relation to such terms states at [136] – [140]:

    The chosen descriptors must also be construed consistently with the other language used in this section of the rules, and in r 5.4 in particular, including the requirement that the treatment “would be likely to remedy the impairment”. In this context, “remedy” should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word “remedy” should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment”, as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured.

    As a general observation, in my opinion each of the adjectives must be construed as referring to circumstances in Australia. In r 5.4, the word “known” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment. The word “appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo. The capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, on their personal circumstances in terms of where they live and who they live with, and who cares for them.

    The word “available” should be understood as meaning available to a particular individual. If it were to be construed as meaning “exists in Australia”, then it would have little different work to do from the word “known”. The Macquarie Dictionary defines “available” as meaning:

    “adjective 1. suitable or ready for use; at hand; of use or service …”

    Assuming as I do the validity of r 5.4, and on the premise any given treatment is “known” and “appropriate” as I have explained those terms, in my opinion the adjective “available” should be understood as directed at what treatments an individual can, in reality, access. Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.

    Affordability may not be the only feature of a treatment affecting whether an individual can access a treatment. For example, whether a known and appropriate treatment for an impairment for a person in a remote Aboriginal community in Australia is “available” to that person is likely to involve considerations of whether that treatment can be delivered in that community, or whether a person has to travel to a major city or regional town to receive that treatment. So too the personal circumstances of a person, and the combination of impairments they might have. If a person has severe agoraphobia, but also has an impairment for which there is a known and appropriate treatment that can only accessed at a busy public hospital, a decision-maker may need to consider whether, as a matter of fact, that treatment is “available” to that individual, even if it might be “available” to a person without agoraphobia.

1. At hearing, the Applicant gave evidence that the impact of the 2019 accident, in which his left foot was injured when a tree branch fell on it, is serious and ongoing. He walks with a limp and has other mobility difficulties due to the injury to his left foot and the back problems and sciatica which developed as a consequence of the foot injury. The Applicant contends that all of the reports he has provided demonstrate that he suffers from chronic pain and restricted physical functioning despite the surgery he received following the injury to his left foot in 2019. He gave evidence that he was unable to continue his work as a self-employed builder and can also not attend to the yard work and home maintenance that his three acre property requires. Further to this, the Applicant explained that he has been unable to maintain preinjury interests such as motorcycle riding and tennis and that as well as the loss of enjoyment derived from these activities, his social networks have also diminished as a consequence of disengaging from these activities.

2. Consultation notes of Dr Stephen Moody, GP, dated 7 June 2021, note the doctor had on that date filled in his part of the Applicant’s NDIS access request form.[39] There is also reference in these clinical notes to discussion with the Applicant in relation to seeing separate specialists for the “foot and back”. There is no indication in the material before the Tribunal, or in evidence heard at hearing which would indicate the Applicant was subsequently assessed by medical specialists in relation to either his left foot, or back.

   [39] R5, p153.

3. A report prepared by Dr Chris Kozlovski, GP, dated 20 December 2021 makes the following comment with regard to the permanency of the Applicant’s impairments:[40]

   All appropriate and available/interventions options have been explored. There are no further treatments available that are likely to remedy his physical impairments and a baseline of function can be established. Ongoing treatment and intervention is aimed at maintenance and the impairment is likely to be permanent regardless of ongoing treatment/interventions.

   [40] T1B.

4. A Chronic Disease Management Record prepared by Dr Kozlovski in relation to the Applicant on 18 March 2022[41] in a section regarding “Further Treatment” identifies a need to “consider options for surgical intervention”, the goal of which is to “reduce pain and increase mobility”. In relation to arrangements for the identified treatments there is reference to “Rheumatologist” and “Orthopaedic surgeon”. There is no indication in the material before the Tribunal, including the evidence provided at hearing, which would establish the Applicant consulted with either of these types of medical specialists in relation to possible further options for surgical intervention to reduce his pain and increase his mobility.

   [41] R5 [P223-224].

5. The February 2023 response to a request for information prepared by Dr Atkins includes the following comment:[42]

   3. Current treatment is limited to the prescribing of an anti-inflammatory' agent Diclofenac for taking on occasions when lumbar pain is particularly intrusive, and the daily application of a programme of self-managed exercises involving his spinal column and lower limbs.

   4. Treatment of the left foot injury, sustained 19 Feb 2019, was managed entirely by the Orthopaedic and Plastic surgical units at Dandenong District Hospital, including injury rehabilitation in the 6 months post-operative period. For a period of 6 months following the injury Mr Iviglia was unable to weight-bear on his left lower limb, and was managed with physiotherapy including hydrotherapy. Treatment of the lumbar pain and left sciatica has included several courses, each course of 6 weeks duration, of physiotherapy directed to his lumbar spine, and 2 instances of CT-guided corticosteroid injection to L5 and S1 nerve roots on the left side. No benefit was derived from these spinal injections.

   [42] Response to Request for Information prepared by Dr Tony Atkins, GP, Berwick Healthcare, dated 22 February 2023, A3 [P4].

6. The physiotherapy report of Ms Tang dated 27 February 2023 notes that the Applicant presented with symptoms consistent with a diagnosis of Complex Regional Pain Syndrome as a consequence of his foot injury. In terms of treatment, Ms Tang indicated the Applicant had undertaken five sessions of hydrotherapy between May and June 2019 with some improvement with pain levels reported. Ms Tang recommended thrice weekly hydrotherapy sessions to manage the Applicant’s left foot injury and his lower back pain with left sided sciatica. She indicated that the Applicant would also benefit from physiotherapy to manage his Complex Regional Pain Syndrome.[43]

   [43] A4.

7. Of note, the Chronic Disease Management Record prepared by Dr Kozlovski on 18 March 2022[44] identifies pain management amongst the Applicant’s ‘problems / needs / conditions’ and with respect to the required treatment for this condition identifies ‘Development of pain management program suitable to needs of patient’ with a psychologist being amongst the services required to achieve this plan goal. There is no indication in the material before the Tribunal, including the evidence provided at hearing, which would establish the Applicant consulted with a psychologist regarding the development of a pain management program suitable too his needs, or that any such program was subsequently developed.

   [44] R5 [P223-224].

8. The physiotherapy report of Mr Eibl dated 14 March 2023 notes that the outcome from physiotherapy treatment provided to the Applicant was improved range of movement, albeit not normal and improved gait endurance. Mr Eibl indicated that the Applicant also benefitted from hydrotherapy with gait and mobility. As to recommendations for further treatment, Mr Eibl recommended 10-12 physiotherapy sessions on an annual basis to manage exacerbations of the Applicant’s lumbar condition and that further hydrotherapy would likely achieve increased strength and gait endurance. Mr Eibl however noted that it was not expected that this would remedy impairment attributable to the Applicant’s left foot injury.

9. The Applicant gave evidence that he felt benefit from some of the physiotherapy he has received and that the support he seeks through the NDIS is to have more of this sort of physiotherapy treatment as he hopes that this will make him better and that he will be able to reclaim some of the things that he had to stop doing because of the impairments caused by the accident in 2019.

10. The Applicant gave evidence that the fees charged by health professionals and medical specialists, whether this be a gap fee or the full cost of their services, has been a constraint and disincentive in his maintaining treatment, such as the physiotherapy, which has been recommended. It has also, in conjunction with doubt it would lead to improvement in his functioning, contributed to his decision to not follow through with recommended further diagnostic tests, such as a nerve conduction study of his left foot, leg and back.

11. With respect to a nerve conduction study, the Applicant gave evidence that this was suggested by his GP in the months before Christmas 2023 when he had asked the GP if there were any further treatment options which may reduce the pain and related difficulties caused by his left foot injury and the sciatica and back problem which is related to the foot injury. His GP had informed him that it would involve checking the connection between the nerves from the top of the leg into the back and into the actual foot. The GP indicated that if it was known exactly where the problem is, they might find a way to get more feeling in his feet, and that will make better for walking.

12. In relation to his thoughts regarding this and other possible therapy or treatment the Applicant made the following comment at hearing:

    But it’s all pending. So the physio and this, all this stuff, better studies and, you know, to find a way. It’s not like this is going to fix it. You’re going to (indistinct) to get appointment, they’re going to test the nerve system or whatever, and then after that, if it finds a solution or something to do, and then – and then you have to go for it. Otherwise, if you can’t afford to go for it, you’re wasting your time all the way, and your money. That’s the thing. The time is not an issue.

13. With respect to this factor, the Respondent drew the attention of the Tribunal to paragraph 6 of the February 2023 response prepared by Dr Atkins to a request for information sent to him by the Respondent in December 2022, where Dr Atkins states:

    6. From perusal of the patient health record there is identified no further recommended treatments likely to be of benefit. From my assessment of Mr Iviglia today it is my opinion that the performance of nerve conduction study in the left leg and foot, followed by a consultant neurologist review, may possibly identify some intervention with potential for improving sensory and motor innervation to the foot and in turn reducing the current impairment of his gait and mobility.

14. Whether he has taken advice from health professionals who have assessed or treated him came up for discussion during the hearing. The Applicant indicated that different types of exercises and stretching have been recommended by the chiropractor and physiotherapists he has had contact with and that he does some, but not all of these exercises and stretches, depending on which seem to be of assistance and which are practical, given the fluctuating impact of his foot, leg and back conditions.

15. The Applicant explained that he is open to the benefit he may get from further physiotherapy treatment, but the issue is that without assistance from the NDIS the cost of getting treatment is too high and potentially more useful practitioners may charge higher fees. He said he went to see a physiotherapist a few times through a Medicare care plan, but there was still a gap fee and the treatment they provide is not necessarily that effective or helpful.

16. In response to a specific question as to whether what he was seeking from the NDIS is funds to continue with the sort of treatment that he thought would be useful rather than the limited treatment that was available through the five consultations he could access on a Medicare care plan, the Applicant answered in the affirmative.

17. Notwithstanding their initial position that the Tribunal should accept that the Applicant’s physical impairments were permanent, in light of the Applicant’s evidence at hearing the Respondent submitted that permanence in relation to the Applicant’s physical impairments is not made out. The Respondent indicated at hearing that they based this submission on the Applicant stating in oral evidence that there are further nerve studies that could be undertaken and that such an option is also discussed in the February 2023 response to a request for information prepared by Dr Atkins.

18. Further to this, the Respondent submitted that there is very limited evidence before the Tribunal which would allow it to make a determination that the impairments affecting the Applicant are fully treated and that no further treatment options which may alleviate the impairments exist. The Respondent submitted that in order for the Tribunal to be able to make a decision, it requires relevant and probative evidence and that whilst there is not an onus of proof on the Applicant, it is not for the agency to tell the Applicant what evidence he requires. The Respondent contended that as an Applicant seeking entry to the scheme, the Applicant should be able to demonstrate that he meets the statutory test. With respect to this issue, the Respondent referred the Tribunal to three decisions: with the first being Beezley v Repatriation Commission [2015] FCAFC 165, 20 November 2015 (Beezley), with particular reference to paragraph 68; the second being Sutherland v NDIA [2024] AATA 411, 23 February 2024 (Sutherland) at paragraph 53; and with the third decision being, to HPSC v NDIA [2021] AATA 727, 31 March 2021 (HPSC) at paragraph 85.

19. In Beezley, a matter dealing with a decision by the Tribunal (differently constituted) regarding Veteran entitlements the Full Court, amongst other issues discussed the connection between the Tribunal’s decision making and the statutory requirements relevant to the legislative basis upon which a person is seeking a benefit or interest. In the section of Beezley referred to by the Respondent the Court states:

    In any case before a merits review Tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; 44 FLR 41 per Deane J. If an Applicant does not provide evidence and information sufficient to meet the statutory requirements, an Applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an Applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an Applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest.

20. Sutherland is a decision of the Tribunal (differently constituted) where it reviewed a decision by the NDIA to refuse a person’s access request to the NDIS and where it considered the relevant judicial observation made by the Full Court of the Federal Court in Beezley at [68], to be correct and that it sets out the relevant principle to be taken into account and applied by the Tribunal in that matter. HPSC is also a decision of the Tribunal (differently constituted) where it reviewed a decision by the NDIA to refuse a person’s access request to the NDIS and where in discussing the evidence before the Tribunal in that matter and again making reference to Beezley, at paragraph 85 states:

    At best, the evidence here is ambivalent. An Applicant for entry to the Scheme should be able to demonstrate that she meets the statutory test. As the Federal Court in Beezley v Repatriation Commission [2015] FCAFC 165 at [68] characterised this exercise:

    …as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an Applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest…

    Thus, if the evidence in relation to a statutory test is in a state of balance, favouring and disfavouring an Applicant’s contentions in equal measure, one would generally expect such an application to fail. In this case, the evidence on the Applicant’s functional capacity to care for herself is inconclusive.

21. In considering whether the Applicant’s physical impairments are permanent, the Tribunal is mindful of the guidance of the Full Court in Beezley.

22. As discussed above, the Respondent contended in their closing submissions that the Applicant does not have permanent physical impairments as, in light of the Applicant’s evidence that he has not undertaken a nerve conduction test which was recommended by his GP. Mindful of the required focus upon the permanence of impairment, rather than the permanence of medical conditions, the Tribunal is satisfied that there is merit to the Respondent submissions with respect to this factor.

23. Rule 5.4 of the Access Rules provides that “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.”

24. The Tribunal’s review of the material before it indicates that further to the nerve conduction test the Applicant did not pursue, there are indications in the Chronic Disease Management Record prepared by Dr Kozlovski in March 2022 that it was recommended further options for surgical intervention be considered with the goal to reduce the Applicant’s pain and increase his mobility and that this would involve the Applicant consulting a Rheumatologist  and Orthopaedic surgeon. This document also identifies the development of a pain management program suitable to needs of the Applicant, with the services of a psychologist being required to achieve this plan goal.

25. The Tribunal is aware that recommendations made by Dr Kozlovski in this document from March 2022 appear inconsistent with an opinion provided him a few months earlier in December 2021, where he states “All appropriate and available/interventions options have been explored. There are no further treatments available that are likely to remedy his physical impairments and a baseline of function can be established.”[45]The Tribunal did not have the opportunity to test this evidence with Dr Kozlovski and in the circumstance where the Applicant has not been reviewed by a Rheumatologist or Orthopaedic surgeon, or indeed a psychologist regarding the development of a pain management program, as suggested by Dr Kozlovski, the Tribunal is satisfied Rule 5.6 of the Access Rules has relevance to determining whether the physical impairments are permanent for the purpose of s 24(1)(b).

    [45] T1B.

26. Rule 5.6 of the Access Rules provides that 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”. This rule also provides that “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).

27. The Tribunal is of the view that it does not have grounds to assume GP’s who have treated the Applicant would not have used their clinical judgment in recommending, as Dr Kozlovski has in March 2022, the Applicant be reviewed by a Rheumatologist, Orthopaedic surgeon, or a psychologist regarding the development of a pain management program; or as Dr Moody had previously in June 2021, the Applicant see separate specialists for the “foot and back”.

28. The Tribunal is mindful of the Applicant’s explanation of how financial constraints influenced his decisions to not pursue recommendations put to him by his GP’s regarding consultations with medical specialist so as to clarify if further intervention may alleviate some of the pain affecting him and improve his mobility.

29. In relation to this factor the Respondent, in discussing the Applicant’s concern he could not afford to pay for further treatment in their closing submissions, contends the Applicant has not provided any evidence supporting to what extent he is experiencing financial hardship, that is, detailing as to how much he can’t afford a treatment or where his limitations are in terms of funding those treatment. Further to this the Respondent submitted that that based on the photos in the Occupational Therapy report of Mr Dwyer and the comments made by the Applicant at hearing about his residential property indicates that the level of hardship he may experience is not as may be necessary in order to take that into consideration. With respect to their submission regarding this factor, the Respondent referred the Tribunal to the decision of the Court in Davis.

30. In considering Davis, the Tribunal is satisfied the comment made by Her Honour in relation to Rule 5.4 also has relevance to Rule 5.6. With respect to the ‘affordability’ factor, that is, whether further medical treatment or review is realistically ‘available’ to the Applicant, the Applicant gave evidence at hearing that he is unable to continue working as a self-employed builder as he has in the past, but also that his spouse remains in paid employment. There is reference to the Applicant informing his doctor that he may need to sell his residential property, due to difficulty maintaining it at an acceptable standard. However it would appear that this has not been necessary to date. Mindful again of the need to make findings on the basis of probative evidence before it and taking into account the Respondent’s submissions with respect to this issue, the Tribunal is not satisfied the evidence establishes further medical treatment or review was not available to him as a result of financial hardship factors.

1. As to Her honours discussion of other relevant descriptors in Davis pertaining to the proper construction of the Access Rules and the extent to which this may be relevant to Rule 5.6, it is unclear if further medical treatment or review by relevant medical and related specialists may ‘remedy’ the Applicant’s physical impairments, as this would not be apparent until the results from further medical treatment or review were known. As to whether further medical treatment which may be recommended by a rheumatologist or orthopaedic surgeon, or psychologist with expertise in pain management would “known”, the Tribunal is satisfied that treatments recommended by such professionals would appear to be such that they would be able to be identified by Australian medical practitioners. However again a concluded view as to whether they would be suitable and appropriate would need to await the outcome from further medical treatment or review.

   Conclusion with regard to s 24(1)(b)

2. In the particular circumstances of this matter the Tribunal accepts that the Applicant has physical impairments. However the Tribunal is not satisfied that it is established on the basis of the currently available information, the impairment or impairments are, or are likely to be, permanent. This is not to say the Applicant is not impacted significantly by the symptoms associated with the injuries incurred in the 2019 accident.

3. The Tribunal considers r 5.6 of the Access Rules are applicable to the Applicant’s circumstances and that medical treatment and review is required before a determination can be made about whether the impairment is permanent or likely to be permanent.

4. The Tribunal also considers that r 5.4 of the Access Rules are applicable to the Applicant’s circumstances and that a finding that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the Applicant’s impairment cannot be made on the basis of the information which is currently before the Tribunal.

5. As the Tribunal has determined that neither r 5.4 or r 5.6 of the Access Rules are satisfied and it follows that the requirements of paragraph 24(1)(b) of the Act are not met.

6. As has been discussed in an earlier section of this decision, each of the five paragraphs of subsection 24(1) of the Act are threshold requirements which need to be met. The consequence of paragraph 24(1)(b) not being met is that the Applicant does not satisfy section 24. The Tribunal did not therefore consider it necessary to consider the remaining criteria in section 24.

7. As the Applicant has not met required criteria in section 24, his access request cannot be granted through meeting the disability requirements outlined in the Act.

   The Early Intervention Requirements

8. The early intervention requirements are set out in section 25 of the Act:

   25 Early intervention requirements

   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 to which a psychosocial disability is attributable and that 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.

   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

9. Section 25, like s 24, requires satisfaction of each of the criteria identified in paragraphs 25(1)(a), (b) and (c).

10. As the Tribunal has determined the evidence currently before it is insufficient to be satisfied that the Applicant has intellectual, cognitive, neurological, sensory or physical impairments, that are, or are likely to be, permanent; or has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent, the requirements in subparagraphs 25(1)(a)(i) and 25(1)(a)(ii) are not satisfied. Subparagraph 25(1)(a)(iii) is not applicable to the Applicant’s circumstances and it therefore follows that paragraph 25(1)(a) is not met.

11. The consequence of paragraph 25(1)(a) not being met is that the Applicant cannot become a participant in the NDIS through meeting the early intervention requirements outlined in section 25.

    Conclusion

12. As discussed in these reasons the Tribunal is not satisfied that the Applicant’s impairments are not permanent within the meaning of the provisions of the Act. Accordingly, as he does not meet the disability requirements and the early intervention requirements of the legislation, the Applicant is not qualified to become a participant in the NDIS.

13. Accordingly, for the reasons stated above, the reviewable decision to refuse the Applicant’s application for access to the NDIS is affirmed.

    DECISION

14. The Tribunal affirms the decision under review.

I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Member D. Barker

........................................................................

Associate

Dated:   23 July 2024

Date(s) of hearing:	23 May 2024
Counsel for the Respondent:	Ms H Hofmann
Solicitors for the Respondent:	Mr A Rath, Sparke Helmore